UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1999
-------------------------------------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 1-5442
------
General Semiconductor, Inc.
---------------------------
(Exact name of registrant as specified in its charter)
Delaware 13-3575653
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10 Melville Park Road, Melville, New York 11747
-----------------------------------------------
(Address of principal executive offices)
(Zip Code)
(631) 847-3000
--------------
(Registrant's telephone number, including area code)
________________________________________________________________
Former name, former address and former fiscal year, if changed since last
report.
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes x No
--- ----
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
Class Outstanding at October 31, 1999
- ----------------------------- -------------------------------
Common Stock, par value $0.01 36,834,623
<PAGE>
GENERAL SEMICONDUCTOR, INC. AND SUBSIDIARIES
INDEX TO FORM 10-Q
PAGES
-----
PART I. FINANCIAL INFORMATION
---------------------
Financial Statements
Condensed Consolidated Balance Sheets at
September 30, 1999 (unaudited) and December 31, 1998 2
Consolidated Statements of Operations for the Three
and Nine Months ended September 30, 1999
and 1998 (unaudited) 3
Consolidated Statements of Cash Flows for the Nine Months
ended September 30, 1999 and 1998 (unaudited) 4
Notes to Consolidated Financial Statements (unaudited) 5-10
Management' Discussion and Analysis of
Financial Condition and Results of Operations 11-15
PART II. OTHER INFORMATION
-----------------
Legal Proceedings 16
Exhibits 16
SIGNATURE 17
<PAGE>
PART I
FINANCIAL INFORMATION
GENERAL SEMICONDUCTOR, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In Thousands, Except Stock Par Value)
ASSETS
<TABLE>
<CAPTION>
(Unaudited)
September 30, December 31,
1999 1998
------------- ------------
<S> <C> <C>
Current Assets:
Cash $ 5,846 $ 3,225
Accounts receivable, less allowance for doubtful accounts of $809
and $769, respectively 62,460 59,643
Inventories 40,636 39,514
Prepaid expenses and other current assets 12,680 12,010
Deferred income taxes 10,720 13,738
-------- -------
Total current assets 132,342 128,130
Property, plant and equipment - net 228,568 223,743
Excess of cost over fair value of net assets acquired, less accumulated
amortization of $47,785 and $43,929, respectively 158,895 162,751
Deferred income taxes, net of valuation allowance 28,980 29,376
Intangibles and other assets, less accumulated amortization of $12,484 and
$11,099, respectively 19,201 19,447
======== ========
TOTAL ASSETS $567,986 $563,447
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable $ 23,609 $ 31,343
Accrued expenses 37,091 45,084
-------- --------
Total current liabilities 60,700 76,427
Long-term debt 290,000 286,000
Deferred income taxes 23,919 21,390
Other non-current liabilities 72,349 74,283
-------- -------
Total liabilities 446,968 458,100
-------- -------
Commitments and contingencies
Stockholders' Equity:
Preferred Stock, $0.01 par value; 20,000 shares authorized; no shares issued - -
Common Stock, $0.01 par value; 400,000 shares authorized; 36,960 and 36,925
shares issued and 36,856 and 36,821 outstanding, respectively 370 369
Retained earnings 127,410 111,842
Other stockholders' equity (6,762) (6,864)
--------- --------
121,018 105,347
========= ========
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $567,986 $ 563,447
========= ========
See notes to consolidated financial statements.
</TABLE>
<PAGE>
GENERAL SEMICONDUCTOR, INC.
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited - In Thousands, Except Per Share Data)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
---------------------- --------------------
1999 1998 1999 1998
------- ------ -------- ------
<S> <C> <C> <C> <C>
NET SALES $ 105,756 $ 97,223 $304,300 $302,382
OPERATING COSTS AND EXPENSES:
Cost of sales 76,921 70,497 224,418 211,720
Selling, general and administrative 10,996 11,519 33,542 34,769
Research and development 1,789 1,503 4,908 4,466
Amortization of excess of cost over fair value
of net assets acquired 1,285 1,286 3,856 3,858
--------- -------- --------- --------
Total operating costs and expenses 90,991 84,805 266,724 254,813
OPERATING INCOME 14,765 12,418 37,576 47,569
Other income (expense) - net 69 (3) 58 (84)
Interest expense-net (6,555) (5,239) (16,876) (15,213)
--------- --------- --------- --------
INCOME BEFORE INCOME TAXES 8,279 7,176 20,758 32,272
Provision for income taxes (2,071) (1,220) (5,190) (10,005)
========== ======== ========= ========
NET INCOME $ 6,208 $ 5,956 $ 15,568 $ 22,267
========= ======== ======== ========
Weighted Average Shares Outstanding:
Basic 36,822 36,820 36,821 36,808
Diluted 37,056 36,824 36,934 36,898
Earnings per share:
Basic $ 0.17 $ 0.16 $ 0.42 $ 0.60
Diluted $ 0.17 $ 0.16 $ 0.42 $ 0.60
See notes to consolidated financial statements.
</TABLE>
<PAGE>
GENERAL SEMICONDUCTOR, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited - In Thousands)
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
--------------------
1999 1998
------ ------
<S> <C> <C>
OPERATING ACTIVITIES:
Income from continuing operations $ 15,567 $ 22,267
Adjustments to reconcile to net cash
from continuing operating activities:
Depreciation and amortization 20,534 18,424
Changes in assets and liabilities:
Accounts receivable (2,817) (1,045)
Inventories (1,122) (1,761)
Prepaid expenses and other current assets (670) (2,903)
Other non-current assets 573 (1,726)
Deferred income taxes 5,940 528
Accounts payable and accrued expenses (10,462) (14,702)
Restructuring (5,265) -
Other non-current liabilities (1,934) (2,302)
Other (624) (327)
--------- --------
Net cash provided by continuing operating activities 19,720 16,453
--------- --------
Cash used in discontinued operations - (25,177)
--------- --------
INVESTING ACTIVITIES:
Expenditures for property, plant and equipment (19,492) (17,780)
--------- --------
Net cash used in investing activities (19,492) (17,780)
--------- --------
FINANCING ACTIVITIES:
Net proceeds from revolving credit facilities 4,000 71,000
Deferred Financing Fees (1,709)
Principal repayment of debt - (46,074)
Exercise of stock options 102 423
--------- -------
Net cash provided by financing activities 2,393 25,349
--------- -------
Increase in cash and cash equivalents 2,621 (1,155)
--------- -------
Cash and cash equivalents, beginning of period 3,225 5,192
--------- -------
Cash and cash equivalents, end of period $ 5,846 $ 4,037
========= =======
See notes to consolidated financial statements.
</TABLE>
<PAGE>
GENERAL SEMICONDUCTOR, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (unaudited)
(All amounts in thousands, except per share data)
1. DESCRIPTION OF THE BUSINESS AND BASIS OF PRESENTATION
General Semiconductor, Inc. ("General Semiconductor" or the "Company") is a
market leader in the discrete segment of the semiconductor industry. The Company
designs, manufactures and sells low-to medium-power rectifiers, transient
voltage suppressors ("TVS"), small signal diodes, and transistors and zener
diodes in axial, bridge, power and surface mount packages. Power rectifiers,
small signal devices and TVS products are semiconductors that are essential
components of most electronic devices and systems. Rectifiers convert
alternating current (AC) into direct current (DC) which can be utilized by
electronic equipment. TVS devices provide protection from electrical surges,
ranging from electrostatic discharge to induced lightning. Small signal devices
amplify or switch low level currents. The Company's products are primarily
targeted for use in the computer, automotive, telecommunications, lighting and
consumer electronics industries.
In the opinion of management, the accompanying unaudited consolidated financial
statements include all necessary adjustments (consisting of normal recurring
adjustments) and present fairly the Company's financial position as of September
30, 1999, the results of its operations for the three and nine months ended
September 30, 1999 and 1998, and its cash flows for the nine months ended
September 30, 1999 and 1998 in conformity with generally accepted accounting
principles for interim financial information applied on a consistent basis.
There were no adjustments of a non-recurring nature recorded during the three
and nine months ended September 30, 1999 and 1998. The results of operations for
the three and nine months ended September 30, 1999 are not necessarily
indicative of the results to be expected for the full year. For further
information, refer to the consolidated financial statements and footnotes
thereto included in General Semiconductor's Annual Report on Form 10-K/A for the
year ended December 31, 1998.
2. INVENTORIES
Inventories consist of:
September 30, 1999 December 31, 1998
------------------ -----------------
Raw materials $ 5,881 $ 5,139
Work in process 12,568 14,181
Finished goods 22,187 20,194
------- -------
$40,636 $39,514
======= =======
3. LONG-TERM DEBT
The Company entered into its $350 million credit facility in July 1997. In
December 1998, the credit facility was amended to modify several financial
covenants to provide flexibility to execute the 1998 restructuring. In June
1999, the credit facility was amended to modify several financial covenants to
provide greater financial flexibility. Pursuant to the credit facility
requirements the Company entered into a Guarantee and Collateral Agreement in
August 1999. The Company is evaluating market conditions and is considering a
subordinated note offering in the range of $200 million which may be completed
in 1999. The Company expects to use the proceeds of any such offering to repay
outstanding indebtedness under the credit facility and the credit facility will
be permanently reduced by 50% of the gross proceeds of the subordinated note
offering.
The credit facility requires the Company to pay a facility fee on the total
commitment. The credit facility permits the Company to choose between two
interest rates options: the adjusted base rate or eurodollar rate (LIBOR) plus a
margin which varies based on the Company's ratio of indebtedness to EBITDA as
defined in the credit agreement. The facility fee also varies based on that
ratio. The Company is also able to set interest rates through a competitive bid
procedure. The credit facility contains financial and operating covenants,
including limitations on guarantee obligations, liens, sale of assets,
indebtedness and investments. At September 30, 1999 the interest rate on
outstanding borrowings was 8.53% per annum.
4. LITIGATION
General Semiconductor is not a party to any pending legal proceedings other than
various claims and lawsuits arising in the normal course of business and those
for which they are indemnified as described below. Management is of the opinion
that such litigation or claims will not have a material adverse effect on the
Company's consolidated financial position, results of operations or cash flows.
A securities class action is presently pending in the United States District
Court for the Northern District of Illinois, Eastern Division, In Re General
Instrument Corporation Securities Litigation. This action, which consolidates
numerous class action complaints filed in various courts between October 10 and
October 27, 1995, is brought by plaintiffs, on their own behalf and as
representatives of a class of purchasers of General Instrument Corporation (the
Company's predecessor, "GI") common stock during the period March 21, 1995
through October 18, 1995. The complaint alleges that prior to the distribution
(the "Distribution") in July 1997 of the capital stock of NextLevel Systems,
Inc. and CommScope, Inc., GI and certain of its officers and directors, as well
as Forstmann Little & Co. and certain related entities, violated the federal
securities laws, namely, Sections 10(b) and 20(a) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), by allegedly making false and
misleading statements and failing to disclose material facts about GI's planned
shipments in 1995 of its CFT-2200 and DigiCipher II products. Also pending in
the same court, under the same name, is a derivative action brought on behalf of
GI. The derivative action alleges that the members of GI's Board of Directors,
several of its officers and Forstmann Little & Co. and related entities have
breached their fiduciary duties by reason of the matter complained of in the
class action and the defendants' alleged use of material non-public information
to sell shares of GI common stock for personal gain.
An action entitled BKP Partners, L.P. v. General Instrument Corp. was brought in
February 1996 by certain holders of preferred stock of Next Level Communications
("NLC"), which was merged into a subsidiary of GI in September 1995. The action
was originally filed in the Northern District of California and was subsequently
transferred to the Northern District of Illinois. The plaintiffs allege that the
defendants violated federal securities laws by making misrepresentations and
omissions and breached fiduciary duties to NLC in connection with the
acquisition of NLC by GI. Plaintiffs seek, among other things, unspecified
compensatory and punitive damages and attorney's fees and costs.
In connection with the Distribution, General Instrument (formerly "NextLevel
Systems, Inc.") agreed to indemnify the Company with respect to its obligations,
if any, arising out of or relating to In Re General Instrument Corporation
Securities Litigation (including the derivative action), and the BKP Partners,
L.P. v. General Instrument Corp. litigation. Therefore, management is of the
opinion that the resolution of these matters will have no effect on the
Company's consolidated financial position, results of operations or cash flows.
5. COMMITMENTS AND CONTINGENCIES
The Company is subject to various federal, state, local and foreign laws and
regulations governing environmental matters, including the use, discharge and
disposal of hazardous materials. The Company's manufacturing facilities are
believed to be in substantial compliance with current laws and regulations.
Complying with current laws and regulations has not had a material adverse
effect on the Company's financial condition. In connection with the
Distribution, the Company retained the obligations with respect to environmental
matters relating to its discontinued operations and its status as a "potentially
responsible party." The Company is presently engaged in the remediation of eight
discontinued operations in six states, and is a "potentially responsible party"
at five hazardous waste sites in four states.
The Company has engaged independent consultants to assist management in
evaluating potential liabilities related to environmental matters. Management
assesses the input from these independent consultants along with other
information known to the Company in its effort to continually monitor these
potential liabilities. Management assesses its environmental exposure on a
site-by-site basis, including those sites where the Company has been named as a
"potentially responsible party" Such assessments include the Company's share of
remediation costs, information known to the Company concerning the size of the
hazardous waste sites, their years of operation and the number of past users and
their financial viability. The Company has a reserve recorded for environmental
matters of $30.6 million at September 30, 1999 ($31.9 million at December 31,
1998). While the ultimate outcome of these matters cannot be determined,
management does not believe that the final disposition of these matters will
have a material adverse effect on the Company's financial position, results of
operations or cash flows beyond the amounts previously provided for in the
financial statements.
The Company's present and past facilities have been in operation for many years,
and over that time in the course of those operations, such facilities have used
substances which are or might be considered hazardous, and the Company has
generated and disposed of wastes which are or might be considered hazardous.
Therefore, it is possible that additional environmental issues may arise in the
future, which the Company cannot now predict.
6. EARNINGS PER SHARE
Basic earnings per share is computed by dividing net income by the weighted
average number of common shares outstanding during the applicable periods.
Diluted earnings per share computations are based on net income divided by the
weighted average number of common shares outstanding adjusted for the dilutive
effect of stock options. The diluted earnings per share calculation assumes the
exercise of stock options using the treasury stock method.
Set forth below are reconciliations of the numerators and denominators of the
basic and diluted per share computations for the three and nine months ended
September 30, 1999 and 1998.
<TABLE>
<CAPTION>
For the Three Months For the Three Months
Ended September 30, 1999 Ended September 30, 1998
------------------------ ------------------------
<S> <C> <C> <C> <C> <C> <C>
Income Shares Per-Share Income Shares Per-Share
(Numerator) (Denominator) Amount (Numerator) (Denominator) Amount
----------- ------------- --------- ----------- ------------- ---------
Basic EPS
Net income $6,208 36,822 $0.17 $5,956 36,820 $0.16
===== =====
Effect of Dilutive Securities
Options -- 234 -- 4
------- ------- ------ ------
Diluted EPS
Net income $6,208 37,056 $0.17 $5,956 36,824 $0.16
======= ======= ===== ====== ====== =====
</TABLE>
<TABLE>
<CAPTION>
For the Nine Months For the Nine Months
Ended September 30, 1999 Ended September 30, 1998
<S> <C> <C> <C> <C> <C> <C>
Income Shares Per-Share Income Shares Per-Share
(Numerator) (Denominator) Amount (Numerator) (Denominator) Amount
Basic EPS
Net income $15,568 36,821 $0.42 $22,267 36,808 $0.60
===== =====
Effect of Dilutive Securities
Options -- 113 -- 90
------- ------ ------- ------
Diluted EPS
Net income $15,568 36,934 $0.42 $22,267 36,898 $0.60
======= ====== ===== ======= ====== =====
</TABLE>
<PAGE>
7. GEOGRAPHIC SEGMENT INFORMATION
General Semiconductor is engaged in one industry segment, specifically, the
design, manufacture and sale of discrete semiconductors. The Company manages its
business on a geographic basis. Summarized financial information for the
Company's reportable geographic segments is presented in the following table.
The accounting policies of the segments are the same as those described in the
summary of significant accounting policies in the Company's Annual Report on
Form 10K/A for the year ended December 31, 1998. Net sales by reportable
geographic segment reflect the originating source of the unaffiliated sale.
Intercompany transfers represent the originating geographic source of the
transfer and principally reflect product assembly which is accounted for at cost
plus a nominal profit. In determining earnings before provision for income taxes
for each geographic segment, sales and purchases between areas have been
accounted for on the basis of internal transfer prices set by the Company.
<TABLE>
<CAPTION>
United
States Europe Far East China Corporate Consolidated
------ ------ -------- ----- --------- ------------
Three months ended
September 30, 1999:
<S> <C> <C> <C> <C> <C> <C>
Net sales (a) ............ $55,596 $32,063 $18,097 $ - $ - $105,756
Intercompany transfers.... 33,721 35,998 41,907 11,852 (123,478) -
------- ------- ------- ------- ---------- --------
Net sales............... 89,317 68,061 60,004 11,852 (123,478) $105,756
======= ======= ======= ======= ========== ========
Interest income........... - 9 - 2 7 18
Interest expense.......... - 53 10 - 6,510 6,573
Depreciation and
amortization expense.... 2,227 1,536 2,288 850 - 6,901
Earnings before
provision for
income taxes............ (452) 2,553 4,669 1,509 - 8,279
Income tax expense........ $ 1,390 $ 374 $ 288 $ 19 $ - $ 2,071
Three months ended
September 30, 1998:
Net sales (a)............ $52,880 $30,616 $13,727 $ - $ $ 97,223
Intercompany transfers... 33,719 31,106 43,929 8,053 (116,807) -
------- ------- ------- -------- ---------- --------
Net sales.............. 86,599 61,722 57,656 8,053 (116,807) 97,223
======= ======= ======= ======== ========= ========
Interest income.......... - 26 0 5 44 75
Interest expense......... - 97 26 - 5,191 5,314
Depreciation and
amortization expense... 2,164 1,103 2,312 729 - 6,308
Earnings before
provision for
income taxes.......... 789 2,203 2,907 1,277 - 7,176
Income tax expense....... $ (901) $ 356 $ 1,755 $ 10 $ - $ 1,220
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
United
States Europe Far East China Corporate Consolidated
------ ------ -------- ----- --------- ------------
Nine months ended
September 30, 1999:
<S> <C> <C> <C> <C> <C> <C>
Net sales (a)........... $159,425 $ 97,913 $ 46,962 $ - $ $304,300
Intercompany transfers.. 97,263 103,963 124,192 30,806 (356,224) -
-------- -------- -------- ------- ---------- --------
Net sales............. 256,688 201,876 171,154 30,806 (356,224) 304,300
======== ======== ======== ======= ========== ========
Interest income......... - 27 10 9 13 59
Interest expense........ - 187 31 - 16,717 16,935
Depreciation and
amortization expense.. 7,075 4,248 6,735 2,476 - 20,534
Earnings before
provision for
income taxes.......... 1,677 3,699 11,072 4,310 - 20,758
Income tax expense...... $ 2,655 $ 499 $ 2,005 $ 31 $ - $ 5,190
Nine months ended
September 30, 1998:
Net sales (a)........... $170,856 $105,251 $ 26,275 $ - $ - $302,382
Intercompany transfers.. 85,100 105,514 123,708 20,575 (334,897) -
-------- -------- -------- ------- ---------- --------
Net sales............. 255,956 210,765 149,983 20,575 (334,897) 302,382
======== ======== ======== ======= ========== ========
Interest income......... - 15 11 21 200 247
Interest expense........ - 216 579 - 14,665 15,460
Depreciation and
amortization expense.. 6,512 3,378 6,615 1,919 - 18,424
Earnings before
provision for
income taxes.......... 12,108 7,394 8,370 4,400 - 32,272
Income tax expense...... $ 3,571 $ 2,214 $ 4,100 $ 120 $ - $ 10,005
</TABLE>
(a) Included in United States net sales are export sales as follows:
Three Months Ended September 30, Nine Months Ended September 30,
-------------------------------- -------------------------------
1999 1998 1999 1998
---- ---- ---- ----
Taiwan $15,690 $13,625 $45,407 $54,088
China 10,682 9,014 28,127 24,224
------- ------- ------- -------
$26,372 $22,639 $73,534 $78,312
======= ======= ======= =======
Net sales, by destination, within the European geographic segment are:
Three Months Ended September 30, Nine Months Ended September 30,
-------------------------------- -------------------------------
1999 1998 1999 1998
---- ---- ---- ----
France $ 3,013 $ 2,960 $ 9,542 $ 10,174
Germany 13,595 15,192 42,692 47,563
Italy 2,476 3,153 9,742 11,496
U.K. 5,005 3,669 12,940 12,226
Other 7,974 5,642 22,997 23,792
------- -------- -------- --------
$32,063 $30,616 $97,913 $105,251
======= ======= ======= ========
<PAGE>
8. RECENT ACCOUNTING PRONOUNCEMENTS
During 1998 the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 133 "Accounting for Derivative
Instruments and Hedging Activities". SFAS 133 establishes accounting and
reporting standards for derivative instruments and hedging activities and
requires that an entity recognize all derivatives as either assets or
liabilities and measure those instruments at fair value. SFAS 133 is effective
for all fiscal quarters of fiscal years beginning after June 15, 2000. The
Company is evaluating the impact SFAS 133 will have on its financial statements.
PAGE>
GENERAL SEMICONDUCTOR, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following Management' Discussion and Analysis pertains to the
continuing operations of General Semiconductor, Inc., unless otherwise noted,
and describes changes in the Company's financial condition since December 31,
1998.
The following table sets forth items included in the statements of income
as a percentage of net sales:
Three Months Nine Months
Ended September 30, Ended September 30,
------------------- -------------------
1999 1998 1999 1998
---- ---- ---- ----
Net sales 100.0% 100.0% 100.0% 100.0%
Cost of sales 72.7 72.5 73.7 70.0
----- ----- ----- -----
Gross profit 27.3 27.5 26.3 30.0
Selling, general and administrative 10.4 11.8 11.0 11.5
Research and development 1.7 1.5 1.6 1.5
Amortization of excess of cost over
fair value of net assets acquired 1.2 1.3 1.3 1.3
----- ----- ----- -----
Operating income 14.0 12.8 12.4 15.7
Other income (expense) - net - - - -
Interest expense - net 6.2 5.4 5.6 5.0
Income before income tax 7.8 7.4 6.8 10.7
Provision for income tax 2.0 1.3 1.7 3.3
----- ----- ----- -----
Net income 5.8% 6.1% 5.1% 7.4%
===== ===== ===== =====
RESULTS OF OPERATIONS:
- ---------------------
NET SALES
- ---------
Net sales of $105.8 million for the three months ended September 30, 1999
increased $8.6 million from $97.2 million for the comparable prior year period.
The increase is primarily due to an approximate 18% increase in unit volume
sales partly offset by an approximate 12% decline in worldwide average selling
prices. For the nine months ended September 30, 1999 net sales increased to
$304.3 million from $302.4 million for the comparable prior year period.
Increased worldwide unit volume sales was offset by an approximate 14% decline
in worldwide average selling prices.
COST OF SALES
- -------------
Cost of sales for the three and nine months ended September 30, 1999 of $76.9
million and $224.4 million compares to $70.5 million and $211.7 million for the
corresponding prior year period. Cost of sales increased $6.4 million (9%) for
the three months and $12.7 million (6%) for the nine months principally due to
an increase in unit volume sales, partly offset by cost savings, including those
achieved from the 1998 restructuring.
Accordingly, gross margin for the three and nine months ended September 30,
1999 represents 27.3% and 26.3% of net sales, respectively, compared with 27.5%
and 30.0% in the corresponding prior year period. The decrease for the nine
months relates to an erosion of worldwide average selling prices partially
offset by a change in the mix of products sold, continued cost controls, savings
achieved from the 1998 restructuring and improved factory utilization.
<PAGE>
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
- --------------------------------------------
Selling, general and administrative expenses of $11.0 million for the three
months ended September 30, 1999 decreased from $11.5 million for the comparable
prior year period. As a percentage of sales, selling, general and administrative
expenses decreased to 10.4% for the three months ended September 30, 1999 from
11.8% for the corresponding prior year period due to the increase in sales as
well as lower spending. For the nine months ended September 30, 1999 selling,
general and administrative expenses of $33.5 million decreased from $34.8
million for the corresponding year-earlier period. The $1.3 million decrease
relates to reduced variable selling expenses and lower bad debt expense.
Accordingly, as a percentage of sales, selling, general administrative expenses
improved to 11.0% from 11.5% for the nine months ended September 30, 1999
compared with the corresponding prior year period.
RESEARCH AND DEVELOPMENT EXPENSES
- ---------------------------------
Research and development expenses of $1.8 million and $4.9 million for the three
and nine months ended September 30, 1999 increased from $1.5 million and $4.5
million for the comparable prior year periods due to costs incurred related to
the planned introduction of power MOSFETS partly offset by cost savings achieved
from the 1998 restructuring. Research and development spending reflects the
modification of existing products as well as the continued development of new
products.
NET INTEREST EXPENSE
- --------------------
Net interest expense increased to $6.6 million and $16.9 million for the three
and nine months ended September 30, 1999 from $5.2 million and $15.2 million for
the corresponding prior year period due to higher borrowing rates and
amortization of deferred financing fees associated with amendments to the credit
facility discussed below.
INCOME TAXES
- ------------
The provision for income taxes is computed utilizing the Company's expected
annual effective income tax rate. The Company's effective tax rate for the nine
months ended September 30, 1999 decreased to 25% from 31% for the nine months
ended September 30, 1998 due primarily to an increased proportion of income of
foreign subsidiaries taxed at rates lower than the U.S. rate.
LIQUIDITY AND CAPITAL RESOURCES
- -------------------------------
Working capital at September 30, 1999 was $71.6 million compared to $51.7
million at December 31, 1998. The working capital increase of $19.9 million
resulted primarily from increases in accounts receivable in support of a higher
revenue base, inventory resulting from additional consignment stock and
decreases in accounts payable and accrued expenses due in part to the payment of
restructuring costs accrued as of December 31, 1998. As a result, the current
ratio increased to 2.2 to 1 at September 30, 1999 compared with 1.7 to 1 at
December 31, 1998.
During the nine months ended September 30, 1999 the Company invested $19.5
million in property, plant and equipment compared with $17.8 million for the
corresponding prior year period. The Company currently plans to invest in excess
of $30.0 million in capital expenditures for the year ended December 31, 1999
principally for automation, new products, quality and system enhancements and
selected capacity increases for key lines where capacity is currently
constrained.
At September 30, 1999 there were $11.0 million of letters of credit outstanding
that reduce the amount that can be borrowed against the Company's $350.0 million
credit facility.
The Company entered into its $350 million credit facility in July 1997. In
December 1998, the credit facility was amended to modify several financial
covenants to provide flexibility to execute the 1998 restructuring. In June
1999, the credit facility was amended to modify several financial covenants to
provide greater financial flexibility. Pursuant to the credit facility
requirements the Company entered into a Guarantee and Collateral Agreement in
August 1999. The credit facility requires the Company to pay a facility fee on
the total commitment. The credit facility permits the Company to choose between
two interest rates options: the adjusted base rate or eurodollar rate (LIBOR)
plus a margin which varies based on the Company's ratio of indebtedness to
EBITDA as defined in the credit agreement. The facility fee also varies based on
that ratio. The Company is also able to set interest rates through a competitive
bid procedure. The credit facility contains financial and operating covenants,
including limitations on guarantee obligations, liens, sale of assets,
indebtedness and investments. The Company is evaluating market conditions and is
considering a subordinated note offering in the range of $200 million which may
be completed in 1999. The Company expects to use the proceeds of any such
offering to repay outstanding indebtedness under the credit facility and the
credit facility will be permanently reduced by 50% of the gross proceeds of the
subordinated note offering.
<PAGE>
General Semiconductor's primary cash needs on both a short and long-term basis
are for capital expenditures and other general corporate purposes. The Company
believes that it has adequate liquidity to meet its current and anticipated cash
flow needs from the results of its operations, working capital and available
sources of financing. There can be no assurance, however, that future
industry-specific developments or general economic trends will not adversely
affect the Company's operations or its ability to meet its cash requirements.
EBITDA
- ------
EBITDA represents earnings before interest, taxes, depreciation and
amortization. EDITDA is presented because we believe it is frequently used by
securities analysts, investors and other interested parties in the evaluation of
companies in our industry. However, other companies in our industry may
calculate EBITDA differently than we do. EBITDA is not a measurement of
financial performance under generally accepted accounting principles and should
not be considered as an alternative to cash flow from operating activities or as
a measure of liquidity or as an alternative to net income as indicators of our
operating performance or any other measures of performance derived in accordance
with generally accepted accounting principles. See the statements of cash flow
included in the Company's consolidated financial statements.
Three months ended Nine months ended
September 30, September 30,
------------------ -----------------
1999 1998 1999 1998
---- ---- ---- ----
Income from continuing operations $ 6,208 $ 5,956 $15,568 $22,267
Interest 6,555 5,239 16,876 15,213
Taxes 2,071 1,220 5,190 10,005
Depreciation and amortization(1) 6,692 6,233 20,257 18,199
------- ------- ------- -------
EBITDA $21,526 $18,648 $57,891 $65,684
======= ======= ======= =======
(1) Amortization of deferred financing fee is excluded from "Depreciation and
amortization" and included in "Interest".
The $2.9 million increase in EBITDA for the three months ended September 30,
1999, compared with the corresponding prior year period is due primarily to
increased sales volume and operating cost improvements, partly offset by lower
selling prices. EBITDA decreased $7.8 million for the nine months ended
September 30, 1999 compared with the corresponding prior year period due to
price erosion.
YEAR 2000
- ---------
The Company recognizes the importance of ensuring that neither its customers nor
its business operations are disrupted as a result of the Year 2000 phenomenon.
This phenomenon is a result of computer programs having been written using two
digits (rather than four) to define the applicable year. Any information
technology ("IT") systems that have time sensitive software may recognize a date
using "00" as the year 1900 rather than the year 2000, which could result in
miscalculations and systems failures. The problem also extends to many "non-IT"
systems such as operating and control systems that rely on embedded chip
systems. The Company, with the assistance of outside consulting resources, is
centrally coordinating activities directed toward achieving global Year 2000
compliance. The primary areas of potential impact include business application
systems, production equipment systems, suppliers, financial institutions,
government agencies and environmental support organizations. None of the
Company's products contain date sensitive or date processing logic.
<PAGE>
In 1996 the Company began an upgrade of its business applications software which
includes the implementation of the full suite of JD Edwards ("JDE") financial,
distribution and manufacturing applications. The JDE software was selected to
add worldwide functionality and efficiency to the business processes of the
Company as well as address Year 2000 exposure. The JDE financial and
distribution modules have been installed and are Year 2000 compliant. The JDE
manufacturing module will be installed in 2000. The Company has completed the
modification of the existing manufacturing applications with each of its six
factories.
Since the Company's financial, distribution and manufacturing applications are
Year 2000 compliant, incremental costs associated with achieving Year 2000
compliance beyond the scope of this project (estimated at less than $1.0
million) should not have a material effect on the Company's financial condition
or results of operations and are being expensed as incurred.
The Company has surveyed its suppliers, financial institutions, government
agencies and others with which it does business to determine their Year 2000
readiness and coordinate conversion efforts. At the current time, respondents
critical to the operations of the Company have indicated that they are, or
reasonably believe that they will be, Year 2000 compliant. If a material risk
arises, the Company is prepared to perform on-site visits to validate the
accuracy of the information received and will test such systems where
appropriate and possible. Additionally, the Company has established programs to
ensure that future purchases of equipment and software are Year 2000 compliant.
Costs incurred have been insignificant to date.
The Company does not expect Year 2000 issues to have a material adverse effect
on its products, services, competitive position, financial condition or results
of operations. If, however, any of the Company systems are not Year 2000
compliant or if government agencies, the Company's customers, or suppliers fail
to achieve Year 2000 compliance, the Company may experience adverse consequences
including the following: (i) customers may be unable to place orders due either
to the Company's or customers system failures; (ii) the Company may be unable to
maintain adequate production scheduling, inventory cost accounting and other
elements of its business that are dependent upon computer systems; and (iii) the
Company may be unable to deliver its products on a timely basis.
The disclosures contained herein constitute Year 2000 Readiness Statements
pursuant to the Year 2000 Information and Readiness Disclosure Act, Public Law
105-271.
NEW EUROPEAN CURRENCY
A new European currency (Euro) was introduced in January 1999 to replace the
separate currencies of eleven individual countries. The Company will need to
modify its payroll, benefits and pension systems, contracts with suppliers and
customers, and internal financial reporting systems to be able to process
transactions in the new currency. A three-year transition period is given during
which transactions may be made in the old currencies. This may require dual
currency processes until the conversion is complete. The Company is identifying
the issues involved and intends to develop and implement solutions. The cost of
this effort is not expected to be material and will be expensed as incurred.
There can be no assurance, however, that all problems will be foreseen and
corrected, or that no material disruption of the Company's business will occur.
The conversion to the Euro may have competitive implications on the Company's
pricing and marketing strategies; however, any such future impact is not known
at this time. However the Company has not experienced any material negative
impact to date as a result of these changes.
FORWARD LOOKING STATEMENTS
The Private Securities Litigation Reform Act of 1995 provides a "safe harbor"
for forward looking statements. The Company's Form 10-K/A for the year ended
December 31, 1998, the Company's 1998 Annual Report to Stockholders, this and
any other Form 10-Q or Form 8-K of the Company, or any oral or written
statements made by or on behalf of the Company, may include forward looking
statements which reflect the Company's current views with respect to future
events and financial performance. These forward-looking statements are
identified by their use of such terms and phrases as "intends," "intend,"
"intended," "goal," "estimate," "estimates," "expects," "expect," "expected,"
"project," "projects," "projected," "projections," "plans," "anticipates,"
"anticipated," "should," "designed to," "foreseeable future," "believe,"
"believes", "scheduled" and similar expressions. Readers are cautioned not to
place undue reliance on these forward looking statements, which speak only as of
the date the statement was made. The Company undertakes no obligation to
publicly update or revise any forward looking statements, whether as a result of
new information, future events or otherwise.
Reference is made to the cautionary statements contained in Exhibit 99 to this
Form 10-Q for a discussion of the factors that may cause actual results to
differ from the results discussed in these forward looking statements.
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
-----------------
See Part I, Note 4 to the Consolidated Financial Statements.
Item 6. Exhibits
--------
(a) Exhibits
--------
10.7.3 Guarantee and Collateral Agreement, dated as of
August 15, 1999, between General Semiconductor, Inc.
and certain of its Subsidiaries in favor of The Chase
Manhattan Bank, as Administrative Agent.
10.8.2 General Semiconductor, Inc. Annual Incentive Plan adopted
October 19, 1999.
27 Financial Data Schedule
99 Forward Looking Information
(b) Reports on Form 8-K
-------------------
No reports on Form 8-K were filed by the Registrant during
the three months ended September 30, 1999.
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
GENERAL SEMICONDUCTOR, INC.
November 5, 1999 /s/Andrew M. Caggia
- ---------------- -------------------
Date Andrew M. Caggia
Senior Vice President and Chief Financial Officer
Signing both in his capacity as Senior Vice President
on behalf of the Registrant and as Chief
Financial Officer of the Registrant
GUARANTEE AND COLLATERAL AGREEMENT
made by
GENERAL SEMICONDUCTOR, INC.
and certain of its Subsidiaries
in favor of
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of August 15, 1999
<PAGE>
- ii - guarantee.doc
TABLE OF CONTENTS
Page
SECTION 1. DEFINED TERMS....................................................4
1.1 Definitions..........................................................4
1.2 Other Definitional Provisions........................................8
SECTION 2. GUARANTEE........................................................8
2.1 Guarantee............................................................8
2.2 Right of Contribution................................................9
2.3 No Subrogation.......................................................9
2.4 Amendments, etc. with respect to the Company Obligations............10
2.5 Guarantee Absolute and Unconditional................................10
2.6 Reinstatement.......................................................11
2.7 Payments............................................................11
SECTION 3. GRANT OF SECURITY INTEREST......................................12
SECTION 4. REPRESENTATIONS AND WARRANTIES..................................13
4.1 Title; No Other Liens...............................................13
4.2 Perfected First Priority Liens......................................13
4.3 Chief Executive Office..............................................14
4.4 Inventory and Equipment.............................................14
4.5 Farm Products.......................................................14
4.6 Investment Property.................................................14
4.7 Receivables.........................................................14
4.8 Intellectual Property...............................................15
SECTION 5. COVENANTS.......................................................15
5.1 Delivery of Instruments, Certificated Securities and Chattel Paper..15
5.2 Maintenance of Insurance............................................16
5.3 Payment of Obligations..............................................16
5.4 Maintenance of Perfected Security Interest; Further Documentation...16
5.5 Changes in Locations, Name, Etc.....................................17
5.6 Notices.............................................................17
5.7 Investment Property.................................................18
5.8 Receivables.........................................................19
5.9 Intellectual Property...............................................19
5.10 Vehicles...........................................................21
SECTION 6. REMEDIAL PROVISIONS.............................................21
6.1 Certain Matters Relating to Receivables.............................21
6.2 Communications with Obligors: Grantors Remain Liable................22
6.3 Pledged Stock.......................................................23
6.4 Proceeds to be Turned Over To Administrative Agent..................24
6.5 Application of Proceeds.............................................24
6.6 Code and Other Remedies.......................................... ..25
6.7 Registration Rights.................................................26
6.8 Waiver; Deficiency..................................................27
SECTION 7. THE ADMINISTRATIVE AGENT........................................27
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc.........27
7.2 Duty of Administrative Agent........................................29
7.3 Execution of Financing Statements...................................30
7.4 Authority of Administrative Agent...................................30
SECTION 8. MISCELLANEOUS...................................................30
8.1 Amendments in Writing...............................................30
8.2 Notices.............................................................30
8.3 No Waiver by Course of Conduct; Cumulative Remedies.................30
8.4 Enforcement Expenses; Indemnification...............................31
8.5 Successors and Assigns..............................................31
8.6 Set-Off.............................................................32
8.7 Counterparts........................................................32
8.8 Severability........................................................32
8.9 Section Headings....................................................32
8.10 Integration........................................................33
8.11 GOVERNING LAW......................................................33
8.12 Submission to Jurisdiction; Waivers................................33
8.13 Acknowledgments....................................................33
8.14 Additional Grantors................................................34
8.15 Releases...........................................................34
8.16 WAIVER OF JURY TRIAL...............................................35
<PAGE>
SCHEDULES
Schedule 1........Notice Addresses
Schedule 2........Investment Property
Schedule 3........Perfection Matters
Schedule 4........Jurisdictions of Organization and Chief Executive Offices
Schedule 5........Inventory and Equipment Locations
Schedule 6........Intellectual Property
<PAGE>
guarantee.doc
GUARANTEE AND COLLATERAL AGREEMENT, dated as of August 15, 1999, made by
each of the signatories hereto (together with any other entity that may become a
party hereto as provided herein, the "Grantors"), in favor of THE CHASE
MANHATTAN BANK, as Administrative Agent (in such capacity, the "Administrative
Agent") for the banks and other financial institutions (the "Banks") from time
to time parties to the Credit Agreement described below. This Agreement replaces
and supercedes the Pledge Agreements and Guarantee Agreements as defined in the
Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, General Semiconductor, Inc., a Delaware corporation (the
"Company"), is a party to the Credit Agreement, dated as of July 23, 1997, with
the Administrative Agent, the Banks and the Co-Agents named therein (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement");
WHEREAS, the Credit Agreement was amended by the Second Amendment dated as
of June 22, 1999 (the "Second Amendment"), and, pursuant to the Second
Amendment, the Company agreed to cause the Grantors to execute and deliver this
Agreement;
WHEREAS, pursuant to the terms of the Credit Agreement and the other Credit
Documents (as defined below), the Banks have severally agreed to hold and make
certain Extensions of Credit (as defined below) to or for the benefit of the
Company;
WHEREAS, the Company owns, directly or indirectly, at least a majority of
the issued and outstanding stock of each of the Guarantors;
WHEREAS, the proceeds of Extensions of Credit may be used in part to enable
the Company to make valuable transfers to the Guarantors in connection with the
operation of their respective businesses;
WHEREAS, each Guarantor will derive substantial direct and indirect benefit
from the holding and making of the Extensions of Credit; and
WHEREAS, the obligation of the Banks to hold and make the Extensions of
Credit is conditioned upon, among other things, the execution and delivery by
each of the Grantors of this Agreement to the Administrative Agent for the
ratable benefit of the Banks;
NOW, THEREFORE, in consideration of the premises and to induce the Banks to
enter into the Second Amendment to the Credit Agreement and to hold and make
Extensions of Credit, each Grantor hereby agrees with and for the benefit of the
Administrative Agent, the Co-Agents and the Banks as follows:
SECTION 1 DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement, and the following terms are used herein as defined in the New
York UCC: Accounts, Certificated Security, Chattel Paper, Documents, Equipment,
Farm Products, Instruments and Inventory.
(b) The following terms shall have the following meanings:
"Agreement": this Guarantee and Collateral Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Bank Hedge Agreements": all interest rate swaps, caps or collar agreements
or similar arrangements entered into by the Company with any Bank (or any
Affiliate of any Bank) providing for protection against fluctuations in interest
rates or currency exchange rates or the exchange of nominal interest
obligations, either generally or under specific contingencies.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests, in any Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing.
"Collateral": as defined in Section 3.
"Collateral Account": any collateral account established by the
Administrative Agent as provided in Section 6.1 or 6.4.
"Company Obligations": means the Obligations (including, without
limitation, interest accruing at the then applicable rate provided in the Credit
Agreement after the maturity of the Loans and Reimbursement Obligations and
interest accruing at the then applicable rate provided in the Credit Agreement
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Company, whether
or not a claim for post-filing or post-petition interest is allowed in such
proceeding).
"Copyrights": (i) all copyrights arising under the laws of the United
States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished (including,
without limitation, those listed in Schedule 6), all registrations and
recordings thereof, and all applications in connection therewith, including,
without limitation, all registrations, recordings and applications in the United
States Copyright Office, and (ii) the right to obtain all renewals thereof.
"Copyright Licenses": any written agreement naming any Grantor as licensor
or licensee (including, without limitation, those listed in Schedule 6),
granting any right under any Copyright, including, without limitation, the grant
of rights to manufacture, distribute, exploit and sell materials derived from
any Copyright.
"Deposit Account": as defined in the Uniform Commercial Code of any
applicable jurisdiction and, in any event, including, without limitation, any
demand, time, savings, passbook or like account maintained with a depositary
institution.
"Extensions of Credit": shall mean (i) all Loans or advances made to the
Company under any Credit Document, (ii) all Letters of Credit issued for the
account of the Company under any Credit Document, and (iii) to the extent not
otherwise included in the foregoing, all other extensions of credit to or for
the benefit of the Company under any Credit Document.
"Foreign Subsidiary Voting Stock": the Capital Stock of any Foreign
Subsidiary
"General Intangibles": all "general intangibles" as such term is defined in
Section 9-106 of the New York UCC and, in any event, including, without
limitation, with respect to any Grantor, all contracts, agreements, instruments
and indentures in any form, and portions thereof, to which such Grantor is a
party or under which such Grantor has any right, title or interest or to which
such Grantor or any property of such Grantor is subject, as the same may from
time to time be amended, supplemented or otherwise modified, including, without
limitation, (i) all rights of such Grantor to receive moneys due and to become
due to it thereunder or in connection therewith, (ii) all rights of such Grantor
to damages arising thereunder and (iii) all rights of such Grantor to perform
and to exercise all remedies thereunder.
"Guarantor Obligations": with respect to any Guarantor, all obligations and
liabilities of such Guarantor which may arise under or in connection with this
Agreement (including, without limitation, Section 2) or any other Credit
Document to which such Guarantor is a party, in each case whether on account of
guarantee obligations, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and disbursements
of counsel to the Administrative Agent, the Co-Agents or the Banks that are
required to be paid by such Guarantor pursuant to the terms of this Agreement or
any other Credit Document).
"Guarantors": the collective reference to each Grantor other than the
Company.
"Intellectual Property": the collective reference to all rights, priorities
and privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including, without
limitation, the Copyrights, the Copyright Licenses, the Patents, the Patent
Licenses, the Trademarks and the Trademark Licenses, and all rights to sue at
law or in equity for any infringement or other impairment thereof, including the
right to receive all proceeds and damages therefrom.
"Intercompany Note": any promissory note evidencing loans made by any
Grantor to any of its Affiliates.
"Investment Property": the collective reference to (i) all "investment
property" as such term is defined in Section 9-115 of the New York UCC (other
than any Foreign Subsidiary Voting Stock excluded from the definition of
"Pledged Stock") and (ii) whether or not constituting "investment property" as
so defined, all Pledged Notes and all Pledged Stock.
"Issuers": the collective reference to each issuer of any Investment
Property.
"New York UCC": the Uniform Commercial Code as from time to time in effect
in the State of New York.
"Obligations": (i) in the case of the Company, the Company Obligations, and
(ii) in the case of each Guarantor, its Guarantor Obligations.
"Patents": (i) all letters patent of the United States, any other country
or any political subdivision thereof, all reissues and extensions thereof and
all goodwill associated therewith, including, without limitation, any of the
foregoing referred to in Schedule 6, (ii) all applications for letters patent of
the United States or any other country and all divisions, continuations and
continuations-in-part thereof, including, without limitation, any of the
foregoing referred to in Schedule 6, and (iii) all rights to obtain any reissues
or extensions of the foregoing.
"Patent License": all agreements, whether written or oral, providing for
the grant by or to any Grantor of any right to manufacture, use or sell any
invention covered in whole or in part by a Patent, including, without
limitation, any of the foregoing referred to in Schedule 6.
"Pledged Notes": all promissory notes listed on Schedule 2, all
Intercompany Notes at any time issued to any Grantor and all other promissory
notes issued to or held by any Grantor (other than promissory notes issued in
connection with extensions of trade credit by any Grantor in the ordinary course
of business).
"Pledged Stock": the shares of Capital Stock listed on Schedule 2, together
with any other shares, stock certificates, options or rights of any nature
whatsoever in respect of the Capital Stock of any Person that may be issued or
granted to, or held by, any Grantor while this Agreement is in effect; provided
that in no event shall more than 65% of the total outstanding Foreign Subsidiary
Voting Stock of any Foreign Subsidiary be required to be pledged hereunder
except to the extent required by subsection 6.8 of the Credit Agreement.
"Proceeds": all "proceeds" as such term is defined in Section 9-306(1) of
the New York UCC and, in any event, shall include, without limitation, all
dividends or other income from the Investment Property, collections thereon or
distributions or payments with respect thereto.
"Receivable": any right to payment for goods sold or leased or for services
rendered, whether or not such right is evidenced by an Instrument or Chattel
Paper and whether or not it has been earned by performance (including, without
limitation, any Account).
"Reimbursement Obligations": the obligations of the Company to reimburse
the Issuing Banks pursuant to subsection 2.6 of the Credit Agreement for amounts
drawn under Letters of Credit.
"Securities Act": the Securities Act of 1933, as amended.
"Trademarks": (i) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade styles, service marks,
logos and other source or business identifiers, and all goodwill associated
therewith, now existing or hereafter adopted or acquired, all registrations and
recordings thereof, and all applications in connection therewith, whether in the
United States Patent and Trademark Office or in any similar office or agency of
the United States, any State thereof or any other country or any political
subdivision thereof, or otherwise, and all common-law rights related thereto,
including, without limitation, any of the foregoing referred to in Schedule 6,
and (ii) the right to obtain all renewals thereof
"Trademark License": any agreement, whether written or oral, providing for
the grant by or to any Grantor of any right to use any Trademark, including,
without limitation, any of the foregoing referred to in Schedule 6.
"Vehicles": all cars, trucks, trailers, construction and earth moving
equipment and other vehicles covered by a certificate of title law of any state
and all tires and other appurtenances to any of the foregoing.
1.2 Other Definitional Provisions. (a) The words "hereof," "herein",
"hereto" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section and Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or any
part thereof when used in relation to a Grantor, shall refer to such Grantor's
Collateral or the relevant part thereof
SECTION 2. GUARANTEE
2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantees to the Administrative Agent, for the
ratable benefit of the Banks and their respective successors, indorsees,
transferees and assigns, the prompt and complete payment and performance by the
Company when due (whether at the stated maturity, by acceleration or otherwise)
of the Company Obligations.
(b) Anything herein or in any other Credit Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Credit Documents shall in no event exceed the amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating to
the insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2).
(c) Each Guarantor agrees that the Company Obligations may at any time and
from time to time exceed the amount of the liability of such Guarantor hereunder
without impairing the guarantee contained in this Section 2 or affecting the
rights and remedies of the Administrative Agent or any Bank hereunder.
(d) The guarantee contained in this Section 2 shall remain in full force
and effect until all the Company Obligations and the obligations of each
Guarantor under the guarantee contained in this Section 2 shall have been
satisfied by payment in full, no Letter of Credit shall be outstanding and the
Commitments shall be terminated, notwithstanding that from time to time during
the term of the Credit Agreement the Company may be free from any Company
Obligations.
(e) No payment made by the Company, any of the Guarantors, any other
guarantor or any other Person or received or collected by the Administrative
Agent or any Bank from the Company, any of the Guarantors, any other guarantor
or any other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of or
in payment of the Company Obligations shall be deemed to modify, reduce, release
or otherwise affect the liability of any Guarantor hereunder which shall,
notwithstanding any such payment (other than any payment made by such Guarantor
in respect of the Company Obligations or any payment received or collected from
such Guarantor in respect of the Company Obligations), remain liable for the
Company Obligations up to the maximum liability of such Guarantor hereunder
until the Company Obligations are paid in full, no Letter of Credit shall be
outstanding and the Commitments are terminated.
2.2 Right of Contribution. Each Guarantor hereby agrees that to the extent
that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2.3. The provisions of
this Section 2.2 shall in no respect limit the obligations and liabilities of
any Guarantor to the Administrative Agent and the Banks, and each Guarantor
shall remain liable to the Administrative Agent and the Banks for the full
amount guaranteed by such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by the
Administrative Agent or any Bank, no Guarantor shall be entitled to be
subrogated to any of the rights of the Administrative Agent or any Bank against
the Company or any other Guarantor or any collateral security or guarantee or
right of offset held by the Administrative Agent or any Bank for the payment of
the Company Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Company or any other Guarantor in respect
of payments made by such Guarantor hereunder, until all amounts owing to the
Administrative Agent and the Banks by the Company on account of the Company
Obligations are paid in full, no Letter of Credit shall be outstanding and the
Commitments are terminated. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all of the Company
Obligations shall not have been paid in full, such amount shall be held by such
Guarantor in trust for the Administrative Agent and the Banks, segregated from
other funds of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Administrative Agent in the exact form received
by such Guarantor (duly indorsed by such Guarantor to the Administrative Agent,
if required), to be applied against the Company Obligations, whether matured or
unmatured, in such order as the Administrative Agent may determine.
2.4 Amendments, etc. with respect to the Company Obligations. Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Company
Obligations made by the Administrative Agent or any Bank may be rescinded by the
Administrative Agent or such Bank and any of the Company Obligations continued,
and the Company Obligations, or the liability of any other Person upon or for
any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Bank, and the Credit
Agreement and the other Credit Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or the Required
Banks or all Banks, as the case may be) may deem advisable from time to time,
and any collateral security, guarantee or right of offset at any time held by
the Administrative Agent or any Bank for the payment of the Company Obligations
may be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any Bank shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the Company
Obligations or for the guarantee contained in this Section 2 or any property
subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Company
Obligations and notice of or proof of reliance by the Administrative Agent or
any Bank upon the guarantee contained in this Section 2 or acceptance of the
guarantee contained in this Section 2; the Company Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon the guarantee contained
in this Section 2; and all dealings between the Company and any of the
Guarantors, on the one hand, and the Administrative Agent and the Banks, on the
other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon the guarantee contained in this Section 2. Each
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Company or any of the Guarantors with
respect to the Company Obligations. Each Guarantor understands and agrees that
the guarantee contained in this Section 2 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of the Credit Agreement or any other Credit Document,
any of the Company Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Administrative Agent or any Bank, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by the Company or any other Person against
the Administrative Agent or any Bank, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Company or such Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Company for the Company Obligations, or of such Guarantor under
the guarantee contained in this Section 2, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and
remedies hereunder against any Guarantor, the Administrative Agent or any Bank
may, but shall be under no obligation to, make a similar demand on or otherwise
pursue such rights and remedies as it may have against the Company, any other
Guarantor or any other Person or against any collateral security or guarantee
for the Company Obligations or any right of offset with respect thereto, and any
failure by the Administrative Agent or any Bank to make any such demand, to
pursue such other rights or remedies or to collect any payments from the
Company, any other Guarantor or any other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the Company, any other Guarantor or any other Person or any such
collateral security, guarantee or right of offset, shall not relieve any
Guarantor of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Administrative Agent or any Bank against any Guarantor.
For the purposes hereof "demand" shall include the commencement and continuance
of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall continue
to be effective, or be reinstated, as the case may be, if at any time payment,
or any part thereof, of any of the Company Obligations is rescinded or must
otherwise be restored or returned by the Administrative Agent or any Bank upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Company or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Company or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments hereunder will
be paid to the Administrative Agent without set-off or counterclaim in Dollars
or any other currency in which the underlying obligations are denominated at the
office of the Administrative Agent located at 270 Park Avenue, New York, New
York 10017.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the Administrative Agent, and
hereby grants to the Administrative Agent, for the ratable benefit of the Banks,
a security interest in, all of the following property now owned or at any time
hereafter acquired by such Grantor or in which such Grantor now has or at any
time in the future may acquire any right, title or interest (collectively, the
"Collateral"), as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of such Grantor's Obligations,:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property;
(i) all Inventory;
(j) all Investment Property;
(k) all Vehicles;
(l) all other property not otherwise described above;
(m) all books and records pertaining to the Collateral; and
(n) to the extent not otherwise included, all Proceeds and products of any
and all of the foregoing and all collateral security and guarantees given by any
Person with respect to any of the foregoing.
Notwithstanding the foregoing the Company and its Subsidiaries shall not be
required to grant any such security interest in any contract, agreement, license
or instrument, in each case to the extent, and only to the extent, the grant by
the Company or such Subsidiary of a security interest pursuant to this Agreement
in its right, title and interest in such contract, agreement, license or
instrument is prohibited by such contract, agreement, license or instrument
without the consent of any other party thereto, would give any other party to
such contract, agreement, license or instrument the right to terminate its
obligations thereunder, or is permitted with consent if all necessary consents
to such grant of a security interest have not been obtained from the other
parties thereto (it being understood that the foregoing shall not be deemed to
obligate the Company or such Subsidiary to obtain such consents); provided
further, that the foregoing limitation shall not affect, limit, restrict or
impair the grant of by the Company or such Subsidiary of a security interest
pursuant to this Agreement in any receivable or any money or other amounts due
or to become due under any such contract, agreement, license or instrument. In
addition, any property subject to a Lien expressly permitted by subsection
7.2(g), (i), (n) or (o) of the Credit Agreement shall not be subject to the
security interest created by this Agreement as long as such other Lien is
effective.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent, the Co-Agents and the Banks to hold and
make Extensions of Credit and to enter into the Second Amendment to the Credit
Agreement, each Grantor hereby represents and warrants to the Administrative
Agent, each Co-Agent and each Bank that:
4.1 Title; No Other Liens. Except for the security interest granted to the
Administrative Agent for the ratable benefit of the Banks pursuant to this
Agreement and the other Liens permitted to exist on the Collateral by the Credit
Agreement, such Grantor owns each item of the Collateral free and clear of any
and all Liens or claims of others. No financing statement or other public notice
with respect to all or any part of the Collateral is on file or of record in any
public office, except such as have been filed in favor of the Administrative
Agent, for the ratable benefit of the Banks, pursuant to this Agreement or as
are permitted by the Credit Agreement.
4.2 Perfected First Priority Liens. The security interests granted pursuant
to this Agreement (a) upon completion of the filings and other actions specified
on Schedule 3 (which, in the case of all filings and other documents referred to
on said Schedule, have been delivered to the Administrative Agent in completed
and duly executed form) will constitute valid perfected security interests in
all of the Collateral in favor of the Administrative Agent, for the ratable
benefit of the Banks, as collateral security for such Grantor's Obligations,
enforceable in accordance with the terms hereof against all creditors of such
Grantor and any Persons purporting to purchase any Collateral from such Grantor
and (b) are prior to all other Liens on the Collateral in existence on the date
hereof except for Liens permitted by the Credit Agreement which may have
priority over the Liens on the Collateral, if any.
4.3 Chief Executive Office. On the date hereof, such Grantor's jurisdiction
of organization and the location of such Grantor's chief executive office or
sole place of business are specified on Schedule 4.
4.4 Inventory and Equipment. On the date hereof, the Inventory and the
Equipment (other than mobile goods and other than consigned Inventory as
permitted under Section 7.2(o) of the Credit Agreement and any Inventory and
Equipment at locations where there is less than $3,000 aggregate book value of
Inventory and Equipment) are kept at the locations listed on Schedule 5.
4.5 Farm Products. None of the Collateral constitutes, or is the Proceeds
of, Farm Products.
4.6 Investment Property. (a) The shares of Pledged Stock pledged by such
Grantor hereunder constitute all the issued and outstanding shares of all
classes of the Capital Stock of each Issuer owned by such Grantor or, in the
case of Foreign Subsidiary Voting Stock, if less, 65% of the outstanding Foreign
Subsidiary Voting Stock of each relevant Issuer (unless such Guarantor is
required to pledge a higher percentage of such Voting Stock pursuant to
subsection 6.8 of the Credit Agreement).
(b) All the shares of the Pledged Stock have been duly and validly issued
and are fully paid and nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid and binding
obligation of the obligor with respect thereto, enforceable in accordance with
its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(d) Such Grantor is the record and beneficial owner of, and has good and
marketable title to, the Investment Property pledged by it hereunder, free of
any and all Liens or options in favor of, or claims of, any other Person, except
the security interest created by this Agreement.
4.7 Receivables. (a) No amount payable to such Grantor under or in
connection with any Receivable is evidenced by any Instrument or Chattel Paper
which has not been delivered to the Administrative Agent.
(b) None of the obligors on any Receivables is a Governmental Authority.
(c) The amounts represented by such Grantor to the Banks from time to time
as owing to such Grantor in respect of the Receivables will at such times be
accurate.
4.8 Intellectual Property. (a) Schedule 6 lists all Intellectual Property
owned by such Grantor in its own name on the date hereof.
(b) On the date hereof, all material Intellectual Property is, to the
knowledge of such Grantor, valid, subsisting, unexpired and enforceable, has not
been abandoned and does not infringe the intellectual property rights of any
other Person, except as would not reasonably be expected to have, in the
aggregate, a material adverse effect on the business, financial condition,
properties, results of operations, value or prospects of the Company and any of
its Subsidiaries taken as a whole ("Material Adverse Effect").
(c) Except as set forth in Schedule 6, on the date hereof, none of the
Intellectual Property is the subject of any licensing or franchise agreement
pursuant to which such Grantor is the licensor or franchisor.
(d) No holding, decision or judgment has been rendered by any Governmental
Authority which would limit, cancel or question the validity of, or such
Grantor's rights in, any Intellectual Property.
(e) No action or proceeding is pending, or, to the knowledge of such
Grantor, threatened, on the date hereof (i) seeking to limit, cancel or question
the validity of any Intellectual Property or such Grantor's ownership interest
therein, or (ii) which, if adversely determined, would have a Material Adverse
Effect on the value of the Intellectual Property taken as a whole.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Administrative Agent, the
Co-Agents and the Banks that, from and after the date of this Agreement until
the Obligations shall have been paid in full, no Letter of Credit shall be
outstanding and the Commitments shall have terminated:
5.1 Delivery of Instruments, Certificated Securities and Chattel Paper. If
any amount payable under or in connection with any of the Collateral shall be or
become evidenced by any Instrument, Certificated Security or Chattel Paper, such
Instrument, Certificated Security or Chattel Paper shall be immediately
delivered to the Administrative Agent, duly indorsed in a manner satisfactory to
the Administrative Agent, to be held as Collateral pursuant to this Agreement.
5.2 Maintenance of Insurance. (a) Such Grantor will maintain, with
financially sound and reputable companies, insurance policies (i) insuring the
Inventory, Equipment and Vehicles against loss by fire, explosion, theft and
such other casualties comparable in scope and coverage as insurance maintained
by companies engaged in the same or similar businesses and (ii) to the extent
requested by the Administrative Agent, insuring such Grantor, the Administrative
Agent, the Co-Agents and the Banks against liability for personal injury and
property damage relating to such Inventory, Equipment and Vehicles, such
policies to be in such form and amounts comparable in scope and coverage as
insurance maintained by companies engaged in the same or similar businesses.
(b) All such insurance shall (i) provide that no cancellation, material
reduction in amount or material change in coverage thereof shall be effective
until at least 30 days after receipt by the Administrative Agent of written
notice thereof, (ii) name the Administrative Agent as insured party or loss
payee, (iii) if reasonably requested by the Administrative Agent, include a
breach of warranty clause and (iv) be reasonably satisfactory in all other
respects to the Administrative Agent.
(c) The Company shall deliver to the Administrative Agent and the Banks a
report of a reputable insurance broker with respect to such insurance
substantially concurrently with each delivery of the Company's audited annual
financial statements and such supplemental reports with respect thereto as the
Administrative Agent may from time to time reasonably request.
5.3 Payment of Obligations. Such Grantor will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all taxes, assessments and governmental charges or levies imposed
upon the Collateral or in respect of income or profits therefrom, as well as all
claims of any kind (including, without limitation, claims for labor, materials
and supplies) against or with respect to the Collateral, except that no such
charge need be paid if the amount or validity thereof is currently being
contested in good faith by appropriate proceedings, reserves in conformity with
GAAP with respect thereto have been provided on the books of such Grantor and
such proceedings could not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any interest
therein.
5.4 Maintenance of Perfected Security Interest; Further Documentation. (a)
Such Grantor shall maintain the security interest created by this Agreement as a
perfected security interest having at least the priority described in Section
4.2 and shall defend such security interest against the claims and demands of
all Persons whomsoever.
(b) Such Grantor will furnish to the Administrative Agent and the Banks
from time to time statements and schedules further identifying and describing
the assets and property of such Grantor and such other reports in connection
therewith as the Administrative Agent may reasonably request, all in reasonable
detail.
(c) At any time and from time to time, upon the written request of the
Administrative Agent, and at the sole expense of such Grantor, such Grantor will
promptly and duly execute and deliver, and have recorded, such further
instruments and documents and take such further actions as the Administrative
Agent may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including, without limitation, (i) filing any financing or continuation
statements under the Uniform Commercial Code (or other similar laws) in effect
in any jurisdiction with respect to the security interests created hereby and
(ii) in the case of Investment Property, Deposit Accounts and any other relevant
Collateral, taking any actions necessary to enable the Administrative Agent to
obtain "control" (within the meaning of the applicable Uniform Commercial Code)
with respect thereto.
5.5 Changes in Locations, Name, Etc. Such Grantor will not, except upon 15
days' prior written notice to the Administrative Agent and delivery to the
Administrative Agent of (a) all additional executed financing statements and
other documents reasonably requested by the Administrative Agent to maintain the
validity, perfection and priority of the security interests provided for herein
and (b) if applicable, a written supplement to Schedule 5 showing any additional
location at which Inventory or Equipment shall be kept:
(i) permit any of the Inventory or Equipment to be kept at a location other
than those listed on Schedule 5;
(ii) change its jurisdiction of organization or the location of its chief
executive office or sole place of business from that referred to in Section 4.3;
or
(iii) change its name, identity or corporate structure to such an extent
that any financing statement filed by the Administrative Agent in connection
with this Agreement would become misleading.
5.6 Notices. Such Grantor will advise the Administrative Agent and the
Banks promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or Liens
permitted under the Credit Agreement) on any of the Collateral which would
adversely affect the ability of the Administrative Agent to exercise any of its
remedies hereunder; and
(b) of the occurrence of any other event which could reasonably be expected
to have a material adverse effect on the aggregate value of the Collateral or on
the security interests created hereby.
5.7 Investment Property. (a) If such Grantor shall become entitled to
receive or shall receive any stock certificate (including, without limitation,
any certificate representing a stock dividend or a distribution in connection
with any reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights in respect of
the Capital Stock of any Issuer, whether in addition to, in substitution of, as
a conversion of, or in exchange for, any shares of the Pledged Stock, or
otherwise in respect thereof, such Grantor shall accept the same as the agent of
the Administrative Agent, the Co-Agents and the Banks, hold the same in trust
for the Administrative Agent, the Co-Agents and the Banks and deliver the same
forthwith to the Administrative Agent in the exact form received, duly indorsed
by such Grantor to the Administrative Agent, if required, together with an
undated stock power covering such certificate duly executed in blank by such
Grantor and with, if the Administrative Agent so requests, signature guaranteed,
to be held by the Administrative Agent, subject to the terms hereof, as
additional collateral security for the Obligations. Any sums paid upon or in
respect of the Investment Property upon the liquidation or dissolution of any
Issuer shall be paid over to the Administrative Agent to be held by it hereunder
as additional collateral security for the Obligations, and in case any
distribution of capital shall be made on or in respect of the Investment
Property or any property shall be distributed upon or with respect to the
Investment Property pursuant to the recapitalization or reclassification of the
capital of any Issuer or pursuant to the reorganization thereof, the property so
distributed shall, unless otherwise subject to a perfected security interest in
favor of the Administrative Agent, be delivered to the Administrative Agent to
be held by it hereunder as additional collateral security for the Obligations.
If any sums of money or property so paid or distributed in respect of the
Investment Property shall be received by such Grantor, such Grantor shall, until
such money or property is paid or delivered to the Administrative Agent, hold
such money or property in trust for the Banks, segregated from other funds of
such Grantor, as additional collateral security for the Obligations.
(b) Without the prior written consent of the Administrative Agent, which
consent shall not be unreasonably withheld, such Grantor will not (i) vote to
enable, or take any other action to permit, any Issuer to issue any stock or
other equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any stock or
other equity securities of any nature of any Issuer, (ii) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect
to, the Investment Property or Proceeds thereof (except pursuant to a
transaction expressly permitted by the Credit Agreement), (iii) create, incur or
permit to exist any Lien or option in favor of, or any claim of any Person with
respect to, any of the Investment Property or Proceeds thereof, or any interest
therein, except for the security interests created by this Agreement or
(iv) enter into any agreement or undertaking restricting the right or ability of
such Grantor or the Administrative Agent to sell, assign or transfer any of the
Investment Property or Proceeds thereof.
(c) In the case of each Grantor which is an Issuer, such Issuer agrees that
(i) it will be bound by the terms of this Agreement relating to the Investment
Property issued by it and will comply with such terms insofar as such terms are
applicable to it, (ii) it will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 5.7(a) with
respect to the Investment Property issued by it and (iii) the terms of Sections
6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to all actions
that may be required of it pursuant to Section 6.3(c) or 6.7 with respect to the
Investment Property issued by it.
5.8 Receivables. (a) Other than in the ordinary course of business
consistent with its past practice or except as would not have a Material Adverse
Effect, such Grantor will not (i) grant any extension of the time of payment of
any Receivable, (ii) compromise or settle any Receivable for less than the full
amount thereof, (iii) release, wholly or partially, any Person liable for the
payment of any Receivable, (iv) allow any credit or discount whatsoever on any
Receivable or (v) amend, supplement or modify any Receivable in any manner that
could adversely affect the value thereof.
(b) Such Grantor will deliver to the Administrative Agent a copy of each
material demand, notice or document received by it that questions or calls into
doubt the validity or enforceability of more than 5% of the aggregate amount of
the then outstanding Receivables.
5.9 Intellectual Property. (a) Such Grantor (either itself or through
licensees) will (i) continue to use each material Trademark on each and every
trademark class of goods applicable to its current line as reflected in its
current catalogs, brochures and price lists in order to maintain such material
Trademark in full force free from any claim of abandonment for non-use,
(ii) maintain as in the past the quality of products and services offered under
such material Trademark, (iii) use such material Trademark with the appropriate
notice of registration and all other notices and legends required by applicable
Requirements of Law, (iv) not adopt or use any mark which is confusingly similar
or a colorable imitation of such material Trademark unless the Administrative
Agent, for the ratable benefit of the Banks, shall obtain a perfected security
interest in such mark pursuant to this Agreement, and (v) not (and not permit
any licensee or sublicensee thereof to) do any act or knowingly omit to do any
act whereby such material Trademark may become invalidated or impaired in any
way.
(b) Such Grantor (either itself or through licensees) will not do any act,
or omit to do any act, whereby any material Patent may become forfeited,
abandoned or dedicated to the public.
(c) Such Grantor (either itself or through licensees) (i) will employ each
material Copyright and (ii) will not (and will not permit any licensee or
sublicensee thereof to) do any act or knowingly omit to do any act whereby any
material portion of the Copyrights may become invalidated or otherwise impaired.
Such Grantor will not (either itself or through licensees) do any act whereby
any material portion of the Copyrights may fall into the public domain.
(d) Such Grantor (either itself or through licensees) will not do any act
that knowingly uses any material Intellectual Property to infringe the
intellectual property rights of any other Person.
(e) Such Grantor will notify the Administrative Agent and the Banks
immediately if it knows, or has reason to know based upon actual notice without
having conducted its own investigation thereof, that any application or
registration relating to any material Intellectual Property may become
forfeited, abandoned or dedicated to the public, or of any adverse determination
or development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office, the United States Copyright Office or any court or tribunal in
any country) regarding such Grantor's ownership of, or the validity of, any
material Intellectual Property or such Grantor's right to register the same or
to own and maintain the same.
(f) Whenever such Grantor, either by itself or through any agent, employee,
licensee or designee, shall file an application for the registration of any
Intellectual Property with the United States Patent and Trademark Office, the
United States Copyright Office or any similar office or agency in any other
country or any political subdivision thereof, such Grantor shall report such
filing to the Administrative Agent within thirty (30) Business Days after the
last day of the fiscal quarter in which such filing occurs. Upon request of the
Administrative Agent, such Grantor shall execute and deliver, and have recorded,
any and all agreements, instruments, documents, and papers as the Administrative
Agent may request to evidence the Administrative Agent's and the Banks' security
interest in any Copyright, Patent or Trademark and the goodwill and general
intangibles of such Grantor relating thereto or represented thereby.
(g) Such Grantor will take all reasonable and necessary steps, including,
without limitation, in any proceeding before the United States Patent and
Trademark Office, the United States Copyright Office or any similar office or
agency in any other country or any political subdivision thereof, to maintain
and pursue each application (and to obtain the relevant registration) and to
maintain each registration of the material Intellectual Property, including,
without limitation, filing of applications for renewal, affidavits of use and
affidavits of incontestability.
(h) In the event that any material Intellectual Property is infringed,
misappropriated or diluted by a third party, such Grantor shall (i) take such
actions as such Grantor shall reasonably deem appropriate under the
circumstances to protect such Intellectual Property and (ii) if such
Intellectual Property is of material economic value, promptly notify the
Administrative Agent after it learns thereof and sue for infringement,
misappropriation or dilution, to seek injunctive relief where appropriate and to
recover any and all damages for such infringement, misappropriation or dilution.
5.10 Vehicles. (a) No Vehicle shall be removed from the state which has
issued the certificate of title/ownership therefor for a period in excess of
four months.
(b) Within 30 days after the date hereof, and, with respect to any Vehicles
acquired by such Grantor subsequent to the date hereof, within 30 days after the
date of acquisition thereof, all applications for certificates of
title/ownership indicating the Administrative Agent's first priority security
interest in the Vehicle covered by such certificate, and any other necessary
documentation, shall be filed in each office in each jurisdiction which the
Administrative Agent shall deem advisable to perfect its security interests in
the Vehicles.
(c) Notwithstanding the foregoing, the Grantors shall not be required to
take any action to perfect the security interest in Vehicles created by the
Agreement (except filing Uniform Commercial Code financing statements) unless
requested by the Administrative Agent or the Required Banks.
SECTION 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables. (a) Following an Event of
Default and continuance thereof, the Administrative Agent shall have the right
to make test verifications of the Receivables in any manner and through any
medium that it reasonably considers advisable, and each Grantor shall furnish
all such assistance and information as the Administrative Agent may require in
connection with such test verifications. At any time and from time to time, upon
the Administrative Agent's request and at the expense of the relevant Grantor,
such Grantor shall cause independent public accountants or others satisfactory
to the Administrative Agent to furnish to the Administrative Agent reports
showing reconciliations, aging and test verifications of, and trial balances
for, the Receivables.
(b) The Administrative Agent hereby authorizes each Grantor to collect such
Grantor's Receivables, subject to the Administrative Agent's reasonable
direction and control, and the Administrative Agent may curtail or terminate
said authority at any time after the occurrence and during the continuance of an
Event of Default. If required by the Administrative Agent at any time after the
occurrence and during the continuance of an Event of Default, any payments of
Receivables, when collected by any Grantor, (i) shall be forthwith (and, in any
event, within two Business Days) deposited by such Grantor in the exact form
received, duly indorsed by such Grantor to the Administrative Agent if required,
in a Collateral Account maintained under the sole dominion and control of the
Administrative Agent, subject to withdrawal by the Administrative Agent for the
account of the Banks only as provided in Section 6.5, and (ii) until so turned
over, shall be held by such Grantor in trust for the Administrative Agent, the
Co-Agents and the Banks, segregated from other funds of such Grantor. Each such
deposit of Proceeds of Receivables shall be accompanied by a report identifying
in reasonable detail the nature and source of the payments included in the
deposit.
(c) At any time after the occurrence and during the continuance of an Event
of Default, at the Administrative Agent's request, each Grantor shall, deliver
to the Administrative Agent all original and other documents evidencing, and
relating to, the agreements and transactions which gave rise to the Receivables,
including, without limitation, all original orders, invoices and shipping
receipts.
6.2 Communications with Obligors: Grantors Remain Liable. (a) At any time
after the occurrence and during the continuance of an Event of Default, the
Administrative Agent in its own name or in the name of others may at any time
communicate with obligors under the Receivables and parties to the Contracts to
verify with them to the Administrative Agent's satisfaction the existence,
amount and terms of any Receivables or Contracts.
(b) Upon the request of the Administrative Agent at any time after the
occurrence and during the continuance of an Event of Default, each Grantor shall
notify obligors on the Receivables and parties to the Contracts that the
Receivables and the Contracts have been assigned to the Administrative Agent for
the ratable benefit of the Banks and that payments in respect thereof shall be
made directly to the Administrative Agent.
(c) Anything herein to the contrary notwithstanding, each Grantor shall
remain liable under each of the Receivables and Contracts to observe and perform
all the conditions and obligations to be observed and performed by it
thereunder, all in accordance with the terms of any agreement giving rise
thereto. Neither the Administrative Agent, any Co-Agent nor any Bank shall have
any obligation or liability under any Receivable (or any agreement giving rise
thereto) or Contract by reason of or arising out of this Agreement or the
receipt by the Administrative Agent, any Co-Agent or any Bank of any payment
relating thereto, nor shall the Administrative Agent, any Co-Agent or any Bank
be obligated in any manner to perform any of the obligations of any Grantor
under or pursuant to any Receivable (or any agreement giving rise thereto) or
Contract, to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by it or as to the sufficiency of any
performance by any party thereunder, to present or file any claim, to take any
action to enforce any performance or to collect the payment of any amounts which
may have been assigned to it or to which it may be entitled at any time or
times.
6.3 Pledged Stock. (a) Unless an Event of Default shall have occurred and
be continuing and the Administrative Agent shall have given notice to the
relevant Grantor of the Administrative Agent's intent to exercise its
corresponding rights pursuant to Section 6.3(b), each Grantor shall be permitted
to receive all cash dividends paid in respect of the Pledged Stock and all
payments made in respect of the Pledged Notes to the extent permitted in the
Credit Agreement, and to exercise all voting and corporate rights with respect
to the Investment Property; provided, however, that no vote shall be cast or
corporate right exercised or other action taken which, in the Administrative
Agent's reasonable judgment, would impair the Collateral or which would be
inconsistent with or result in any violation of any provision of the Credit
Agreement, this Agreement or any other Credit Document.
(b) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
the relevant Grantor or Grantors, (i) the Administrative Agent shall have the
right to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Investment Property and make application thereof to the
Obligations in such order as the Administrative Agent may determine, and
(ii) any or all of the Investment Property shall be registered in the name of
the Administrative Agent or its nominee, and the Administrative Agent or its
nominee may thereafter exercise (x) all voting, corporate and other rights
pertaining to such Investment Property at any meeting of shareholders of the
relevant Issuer or Issuers or otherwise and (y) any and all rights of
conversion, exchange and subscription and any other rights, privileges or
options pertaining to such Investment Property as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its discretion
any and all of the Investment Property upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate
structure of any Issuer, or upon the exercise by any Grantor or the
Administrative Agent of any right, privilege or option pertaining to such
Investment Property, and in connection therewith, the right to deposit and
deliver any and all of the Investment Property with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions as the Administrative Agent may determine), all without liability
except to account for property actually received by it, but the Administrative
Agent shall have no duty to any Grantor to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay in so
doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of any
Investment Property pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the Administrative Agent in writing that
(x) states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Investment Property directly to the Administrative Agent.
6.4 Proceeds to be Turned Over To Administrative Agent. In addition to the
rights of the Administrative Agent, the Co-Agents and the Banks specified in
Section 6.1 with respect to payments of Receivables, if an Event of Default
shall occur and be continuing, all Proceeds received by any Grantor consisting
of cash, checks and other near-cash items shall be held by such Grantor in trust
for the Administrative Agent and the Banks, segregated from other funds of such
Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to
the Administrative Agent in the exact form received by such Grantor (duly
indorsed by such Grantor to the Administrative Agent, if required). All Proceeds
received by the Administrative Agent hereunder shall be held by the
Administrative Agent in a Collateral Account maintained under its sole dominion
and control. All Proceeds while held by the Administrative Agent in a Collateral
Account (or by such Grantor in trust for the Administrative Agent, the Co-Agents
and the Banks) shall continue to be held as collateral security for all the
Obligations and shall not constitute payment thereof until applied as provided
in Section 6.5.
6.5 Application of Proceeds. At such intervals as may be agreed upon by the
Company and the Administrative Agent, or, if an Event of Default shall have
occurred and be continuing, at any time at the Administrative Agent's election,
the Administrative Agent may apply all or any part of Proceeds held in any
Collateral Account in payment of the Obligations in such order as the
Administrative Agent may elect, and any part of such funds which the
Administrative Agent elects not so to apply and deems not required as collateral
security for the Obligations shall be paid over from time to time by the
Administrative Agent to the Company or to whomsoever may be lawfully entitled to
receive the same. Any balance of such Proceeds remaining after the Obligations
shall have been paid in full, no Letters of Credit shall be outstanding and the
Commitments shall have terminated shall be paid over to the Company or to
whomsoever may be lawfully entitled to receive the same.
6.6 Code and Other Remedies. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Banks, may exercise, in
addition to all other rights and remedies granted to them in this Agreement and
in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the New York UCC
or any other applicable law. Without limiting the generality of the foregoing,
the Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon any Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Administrative Agent or any Bank or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Administrative Agent, any Co-Agent or any
Bank shall have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of redemption in
any Grantor, which right or equity is hereby waived and released. Each Grantor
further agrees, at the Administrative Agent's request, to assemble the
Collateral and make it available to the Administrative Agent at places which the
Administrative Agent shall reasonably select, whether at such Grantor's premises
or elsewhere. The Administrative Agent shall apply the net proceeds of any
action taken by it pursuant to this Section 6.6, after deducting all reasonable
costs and expenses of every kind incurred in connection therewith or incidental
to the care or safekeeping of any of the Collateral or in any way relating to
the Collateral or the rights of the Administrative Agent, the Co-Agents and the
Banks hereunder, including, without limitation, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Obligations, in such
order as the Administrative Agent may elect, and only after such application and
after the payment by the Administrative Agent of any other amount required by
any provision of law, including, without limitation, Section 9-504(l)(c) of the
New York UCC, need the Administrative Agent account for the surplus, if any, to
any Grantor. To the extent permitted by applicable law, each Grantor waives all
claims, damages and demands it may acquire against the Administrative Agent, any
Co-Agent or any Bank arising out of the exercise by them of any rights
hereunder. If any notice of a proposed sale or other disposition of Collateral
shall be required by law, such notice shall be deemed reasonable and proper if
given at least 10 days before such sale or other disposition. The application of
any Collateral shall be subject to subsection 10.14 of the Credit Agreement.
6.7 Registration Rights. (a) If the Administrative Agent shall determine to
exercise its right to sell any or all of the Pledged Stock pursuant to Section
6.6, and if in the opinion of the Administrative Agent it is necessary or
advisable to have the Pledged Stock, or that portion thereof to be sold,
registered under the provisions of the Securities Act, the relevant Grantor will
cause the Issuer thereof to (i) execute and deliver, and cause the directors and
officers of such Issuer to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts as may be, in the
opinion of the Administrative Agent, necessary or advisable to register the
Pledged Stock, or that portion thereof to be sold, under the provisions of the
Securities Act, (ii) use its commercially reasonable efforts to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering of
the Pledged Stock, or that portion thereof to be sold, and (iii) make all
amendments thereto and/or to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Each Grantor agrees to
cause such Issuer to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions which the Administrative Agent shall designate
and to make available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy the provisions
of Section 11(a) of the Securities Act.
(b) Each Grantor recognizes that the Administrative Agent may be unable to
effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) Each Grantor agrees to use its best efforts to do or cause to be done
all such other acts as may be necessary to make such sale or sales of all or any
portion of the Pledged Stock pursuant to this Section 6.7 valid and binding and
in compliance with any and all other applicable Requirements of Law. Each
Grantor further agrees that a breach of any of the covenants contained in this
Section 6.7 will cause irreparable injury to the Administrative Agent, the
Co-Agents and the Banks, that the Administrative Agent, the Co-Agents and the
Banks have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this Section 6.7 shall be
specifically enforceable against such Grantor, and such Grantor hereby waives
and agrees not to assert any defenses against an action for specific performance
of such covenants except for a defense that no Event of Default has occurred
under the Credit Agreement.
6.8 Waiver; Deficiency. Each Grantor waives and agrees not to assert any
rights or privileges which it may acquire under Section 9-112 of the New York
UCC. Each Grantor shall remain liable for any deficiency if the proceeds of any
sale or other disposition of the Collateral are insufficient to pay its
Obligations and the fees and disbursements of any attorneys employed by the
Administrative Agent, any Co-Agent or any Bank to collect such deficiency.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc. (a) Each
Grantor hereby irrevocably constitutes and appoints the Administrative Agent and
any officer or agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of such Grantor and in the name of such Grantor or in its own name,
for the purpose of carrying out the terms of this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Agreement, and,
without limiting the generality of the foregoing, each Grantor hereby gives the
Administrative Agent the power and right, on behalf of such Grantor, without
notice to or assent by such Grantor, to do any or all of the following:
(i) in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes, acceptances or
other instruments for the payment of moneys due under any Receivable or Contract
or with respect to any other Collateral and file any claim or take any other
action or proceeding in any court of law or equity or otherwise deemed
appropriate by the Administrative Agent for the purpose of collecting any and
all such moneys due under any Receivable or Contract or with respect to any
other Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and deliver, and
have recorded, any and all agreements, instruments, documents and papers as the
Administrative Agent may request to evidence the Administrative Agent's and the
Banks' security interest in such Intellectual Property and the goodwill and
general intangibles of such Grantor relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or threatened
against the Collateral, effect any repairs or any insurance called for by the
terms of this Agreement and pay all or any part of the premiums therefor and the
costs thereof;
(iv) execute, in connection with any sale provided for in Section 6.6 or
6.7, any endorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of the Collateral
to make payment of any and all moneys due or to become due thereunder directly
to the Administrative Agent or as the Administrative Agent shall direct; (2) ask
or demand for, collect, and receive payment of and receipt for, any and all
moneys, claims and other amounts due or to become due at any time in respect of
or arising out of any Collateral; (3) sign and indorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, notices and other documents in connection
with any of the Collateral; (4) commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to
collect the Collateral or any portion thereof and to enforce any other right in
respect of any Collateral; (5) defend any suit, action or proceeding brought
against such Grantor with respect to any Collateral; (6) settle, compromise or
adjust any such suit, action or proceeding and, in connection therewith, give
such discharges or releases as the Administrative Agent may deem appropriate;
(7) assign any Copyright, Patent or Trademark (along with the goodwill of the
business to which any such Copyright, Patent or Trademark pertains), throughout
the world for such term or terms, on such conditions, and in such manner, as the
Administrative Agent shall in its sole discretion determine; and (8) generally,
sell, transfer, pledge and make any agreement with respect to or otherwise deal
with any of the Collateral as fully and completely as though the Administrative
Agent were the absolute owner thereof for all purposes, and do, at the
Administrative Agent's option and such Grantor's expense, at any time, or from
time to time, all acts and things which the Administrative Agent deems necessary
to protect, preserve or realize upon the Collateral and the Administrative
Agent's and the Banks' security interests therein and to effect the intent of
this Agreement, all as fully and effectively as such Grantor might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the
Administrative Agent agrees that it will not exercise any rights under the power
of attorney provided for in this Section 7.1(a) unless an Event of Default shall
have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its agreements
contained herein, the Administrative Agent, at its option, but without any
obligation so to do, may perform or comply, or otherwise cause performance or
compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in connection with
actions undertaken as provided in this Section 7.1, together with interest
thereon at a rate per annum equal to the highest rate per annum at which
interest would then be payable on any category of past due ABR Loans under the
Credit Agreement, from the date of payment by the Administrative Agent to the
date reimbursed by the relevant Grantor, shall be payable by such Grantor to the
Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof All powers, authorizations and agencies
contained in this Agreement are coupled with an interest and are irrevocable
until this Agreement is terminated and the security interests created hereby are
released.
7.2 Duty of Administrative Agent. The Administrative Agent's sole duty with
respect to the custody, safekeeping and physical preservation of the Collateral
in its possession, under Section 9-207 of the New York UCC or otherwise, shall
be to deal with it in the same manner as the Administrative Agent deals with
similar property for its own account. Neither the Administrative Agent, any
Co-Agent, any Bank nor any of their respective officers, directors, employees or
agents shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of any Grantor or any
other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof. The powers conferred on the Administrative
Agent, the Co-Agents and the Banks hereunder are solely to protect the
Administrative Agent's, the Co-Agents' and the Banks' interests in the
Collateral and shall not impose any duty upon the Administrative Agent, any
Co-Agent or any Bank to exercise any such powers. The Administrative Agent, the
Co-Agents and the Banks shall be accountable only for amounts that they actually
receive as a result of the exercise of such powers, and neither they nor any of
their officers, directors, employees or agents shall be responsible to any
Grantor for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct.
7.3 Execution of Financing Statements. Pursuant to Section 9-402 of the New
York UCC and any other applicable law, each Grantor authorizes the
Administrative Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the
signature of such Grantor in such form and in such offices as the Administrative
Agent determines appropriate to perfect the security interests of the
Administrative Agent under this Agreement. A photographic or other reproduction
of this Agreement shall be sufficient as a financing statement or other filing
or recording document or instrument for filing or recording in any jurisdiction.
7.4 Authority of Administrative Agent. Each Grantor acknowledges that the
rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Administrative Agent, the Co-Agents
and the Banks, be governed by the Credit Agreement and by such other agreements
with respect thereto as may exist from time to time among them, but, as between
the Administrative Agent and the Grantors, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Banks with full and valid
authority so to act or refrain from acting, and no Grantor shall be under any
obligation, or entitlement, to make any inquiry respecting such authority.
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with subsection 10.1 of the Credit Agreement.
8.2 Notices. All notices, requests and demands to or upon the
Administrative Agent or any Grantor hereunder shall be effected in the manner
provided for in subsection 10.2 of the Credit Agreement; provided that any such
notice, request or demand to or upon any Guarantor shall be addressed to such
Guarantor at its notice address set forth on Schedule 1.
8.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent, any Co-Agent nor any Bank shall by any act (except by a
written instrument pursuant to Section 8.1), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of the Administrative Agent, any Co-Agent or
any Bank, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Administrative Agent,
any Co-Agent or any Bank of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Administrative
Agent, such Co-Agent or such Bank would otherwise have on any future occasion.
The rights and remedies herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any other rights or remedies provided
by law.
8.4 Enforcement Expenses; Indemnification. (a) Each Guarantor agrees to pay
or reimburse each Bank, each Co-Agent and the Administrative Agent for all its
costs and expenses incurred in collecting against such Guarantor under the
guarantee contained in Section 2 or otherwise enforcing or preserving any rights
under this Agreement and the other Credit Documents to which such Guarantor is a
party, including, without limitation, the reasonable fees and disbursements of
counsel (including the allocated reasonable fees and expenses of in-house
counsel) to each Bank and Co-Agent and of counsel to the Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the Administrative Agent, the
Co-Agents and the Banks harmless from, any and all liabilities with respect to,
or resulting from any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions contemplated by
this Agreement.
(c) Each Guarantor agrees to pay, and to save the Administrative Agent, the
Co-Agents and the Banks harmless from, any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement to the
extent the Company would be required to do so pursuant to subsection 10.5 of the
Credit Agreement.
(d) The agreements in this Section 8.4 shall survive repayment of the
Obligations and all other amounts payable under the Credit Agreement and the
other Credit Documents.
8.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of the
Administrative Agent, the Co-Agents and the Banks and their successors and
assigns; provided that no Grantor may assign, transfer or delegate any of its
rights or obligations under this Agreement without the prior written consent of
the Administrative Agent.
8.6 Set-Off. Each Grantor hereby irrevocably authorizes the Administrative
Agent, each Co-Agent and each Bank at any time and from time to time while an
Event of Default specified in subsection 8(a) or 8(f) of the Credit Agreement
shall have occurred and be continuing, without notice to such Grantor or any
other Grantor, any such notice being expressly waived by each Grantor, to
set-off and appropriate and apply any and all deposits (general or special, time
or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Administrative Agent, such Co-Agent or such Bank to or for the
credit or the account of such Grantor, or any part thereof in such amounts as
the Administrative Agent, such Co-Agent or such Bank may elect, against and on
account of the obligations and liabilities of such Grantor to the Administrative
Agent, such Co-Agent or such Bank hereunder and claims of every nature and
description of the Administrative Agent, such Co-Agent or such Bank against such
Grantor, in any currency, whether arising hereunder, under the Credit Agreement,
any other Credit Document or otherwise, as the Administrative Agent, such
Co-Agent or such Bank may elect, whether or not the Administrative Agent, any
Co-Agent or any Bank has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. The
Administrative Agent, each Co-Agent and each Bank shall notify such Grantor
promptly of any such set-off and the application made by the Administrative
Agent, such Co-Agent or such Bank of the proceeds thereof, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Administrative Agent, each Co-Agent and each Bank
under this Section 8.6 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which the Administrative Agent,
such Co-Agent or such Bank may have.
8.7 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
8.8 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8.9 Section Headings. The Section headings used in this Agreement are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
8.10 Integration. This Agreement and the other Credit Documents represent
the agreement of the Grantors, the Administrative Agent and the Banks with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Bank relative to subject matter hereof and thereof not expressly set forth or
referred to herein or in the other Credit Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction; Waivers. Each Grantor hereby irrevocably
and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement and the other Credit Documents to which it is a
party, or for recognition and enforcement of any judgment in respect thereof, to
the non-exclusive general jurisdiction of the Courts of the State of New York,
the courts of the United States of America for the Southern District of New
York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Grantor at its
address referred to in Section 8.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to sue in
any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
Section any special, exemplary, punitive or consequential damages.
8.13 Acknowledgments. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents to which it is a
party;
(b) neither the Administrative Agent, any Co-Agent nor any Bank has any
fiduciary relationship with or duty to any Grantor arising out of or in
connection with this Agreement or any of the other Credit Documents, and the
relationship between the Grantors, on the one hand, and the Administrative
Agent, the Co-Agents and Banks, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Banks or among the Grantors and the Banks.
8.14 Additional Grantors. Each Subsidiary of the Company that is required
to become a party to this Agreement pursuant to subsection 6.8 of the Credit
Agreement shall become a Grantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of an Assumption Agreement in the form
of Annex 1 hereto.
8.15 Releases. (a) At such time as the Loans, the Reimbursement Obligations
and the other Obligations shall have been paid in full, the Commitments have
been terminated and no Letters of Credit shall be outstanding, the Collateral
shall be released from the Liens created hereby, and this Agreement and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and each Grantor hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Grantors. At the request and sole
expense of any Grantor following any such termination, the Administrative Agent
shall deliver to such Grantor any Collateral held by the Administrative Agent
hereunder, and execute and deliver to such Grantor such documents as such
Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by any Grantor in a transaction permitted by the Credit Agreement,
then the Administrative Agent, at the request and sole expense of such Grantor,
shall execute and deliver to such Grantor all releases or other documents
reasonably necessary for the release of the Liens created hereby on such
Collateral. At the request and sole expense of the Company, a Subsidiary
Guarantor shall be released from its obligations hereunder in the event that all
the Capital Stock of such Subsidiary Guarantor shall be sold, transferred or
otherwise disposed of in a transaction permitted by the Credit Agreement;
provided that the Company shall have delivered to the Administrative Agent,
prior to the date of the proposed release, a written request for release
identifying the relevant Subsidiary Guarantor and the terms of the sale or other
disposition in reasonable detail, including the price thereof and any expenses
in connection therewith, together with a certification by the Company stating
that such transaction is in compliance with the Credit Agreement and the other
Credit Documents.
(c) If any property of a Grantor does not constitute Collateral to the
extent provided in the last sentence of Section 3 because it is subject to a
Lien expressly permitted by subsection 7.2(g), (i), (n) or (o) of the Credit
Agreement, then the Administrative Agent, at the sole expense and request of
such Grantor, shall execute and deliver to such Grantor all releases or other
documents reasonably necessary for the release of the Liens created hereby on
such property.
8.16 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and
Collateral Agreement to be duly executed and delivered as of the date first
above written.
GENERAL SEMICONDUCTOR, INC.
By:/s/ Andrew M. Caggia
Title: Sr. Vice President, Chief
Financial Officer
ATC CORP.
By:/s/ Andrew M. Caggia
Title: Director
CENTURY COMPONENTS, INC.
By:/s/ Andrew M. Caggia
Title: Director
GENERAL SEMICONDUCTOR (ARIZONA), INC.
By:/s/ Andrew M. Caggia
Title: Director
GENERAL SEMICONDUCTOR REMITTANCE PRODUCTS, INC.
By:/s/ Andrew M. Caggia
Title: Director
<PAGE>
guarantee.doc
Schedule 1
NOTICE ADDRESSES OF GUARANTORS
The address of each Guarantor is:
c/o General Semiconductor, Inc.
10 Melville Park Road
Melville, New York 11747-3 113
<PAGE>
guarantee.doc
Schedule 2
DESCRIPTION OF INVESTMENT PROPERTY
<TABLE>
<CAPTION>
Pledged Stock:
Issuer Class of Stock Stock No. of Shares
Certificate No.
<S> <C> <C> <C>
General Semiconductor International, Inc. (a New York Common
corporation)**
ATC Corp. (a Delaware corporation) Common 2 100
Century Components, Inc. (a Delaware corporation) Common 2 1,000
General Semiconductor (Arizona), Inc. Common 1 1,942
(a Delaware corporation)
General Semiconductor Industries, Inc. Common 2 65
(a Delaware corporation)*
General Semiconductor Remittance Products, Inc. Common 1 1,000
(a Florida corporation)
General Semiconductor (China) Holdings, Inc. Common 650
a Delaware corporation)*
General Semiconductor of Taiwan, Ltd. (an entity Common 1, 8, 9-1, 9-2, 1, 903, 574
organized under the laws of Taiwan)* 10
GSI - General Semiconductor Industries, Inc. Common 2 65
(a Delaware Corporation)*
General Semiconductor Korea Co., Ltd. Common
(a Korean Corporation)**
General Semiconductor France, S.A. N/A N/A N/A
(an entity organized under the laws of France)*
General Semiconductor (Singapore) Pte. Ltd. (an entity Common
organized under the laws of Singapore)**
General Semiconductor (UK) Ltd. (an entity organized Common
under the laws of the United Kingdom)**
General Semiconductor Hongkong Ltd. (an entity organized Common
under the laws of Hong Kong)**
General Semiconductor (Deutschland) GmbH (an entity Common
organized under the laws of Germany)**
* 65% of shares owned pledged under original Pledge Agreement.
** Denotes a subsidiary considered to be a Foreign Subsidiary under the
Credit Agreement of which 65% of equity interest owned is
to be pledged.
</TABLE>
<PAGE>
Schedule 2
DESCRIPTION OF INVESTMENT PROPERTY
Pledged Notes:
Issuer Payee Principal Amount
General Semiconductor (Europe) Ltd. Century Components, Inc. $3,387,000
Century Components, Inc. General Semiconductor, Inc. $3,387,000
<PAGE>
guarantee.doc
Schedule 3
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
Grantor Filing Office
1. ATC Corp. Central Filing Office, Delaware
State of New York
Suffolk County, New York
2. Century Components, Inc. Central Filing Office, Delaware
State of New York
Suffolk County, New York
3. General Semiconductor Central Filing Office, Delaware
(Arizona), Inc. State of New York
Suffolk County, New York
4. General Semiconductor Remittance Central Filing Office, Florida
Products, Inc. State of New York
Suffolk County, New York
5. General Semiconductor, Inc. Central Filing Office, Delaware
Central Filing Office, California
Los Angeles County, California
State of New York
Nassau County, New York
City Register, Queens County, New York
Suffolk County, New York
Patent and Trademark Filings
This Agreement shall be filed with the U.S. Patent and Trade Office.
Actions with respect to Pledged Stock
Perfection achieved upon the Administrative Agent receiving possession
of the Pledged Stock.
Other Actions
[None]
<PAGE>
guarantee.doc
Schedule 4
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Grantor Jurisdiction of Organization
General Semiconductor, Inc. Delaware
ATC CORP. Delaware
Century Components, Inc. Delaware
General Semiconductor (Arizona), Inc. Delaware
General Semiconductor Remittance Products, Inc. Florida
The chief executive office of each Grantor is:
10 Melville Park Road
Melville, New York, 11747-3113
<PAGE>
guarantee.doc
Schedule 5
LOCATION OF INVENTORY AND EQUIPMENT
Grantor Location
General Semiconductor, Inc. Dimerco Express
145-45 156th Street
Jamaica, NY 11434
(Queens County)
Dimerco Express
406 North Oak Street
Inglewood, CA 90302
(Los Angeles County)
General Semiconductor, Inc.
10 Melville Park Road
Melville, NY 11747
(Suffolk County)
General Semiconductor, Inc.
172 Spruce Street
Westbury, NY 11590
(Nassau County)
General Semiconductor, Inc. c/o Dimerco Air
Forwarder (HK) Ltd.
Unit 505 HK
International Distribution Centre
18 Container Port Rd., Kwai Chung
N.T., Hong Kong
General Semiconductor of Tawain, Ltd.
Distribution Center
233 Pao Chiao Road, Hsin-Tien
Taipei, Taiwan, ROC
LOCATION OF INVENTORY AND EQUIPMENT
Grantor Location
General Semiconductor, Inc. General Semiconductor, Inc.
10 Melville Park Road
Melville, NY 11747
(Suffolk County)
General Semiconductor, Inc. General Semiconductor, Inc.
172 Spruce Street
Westbury, NY 11590
(Nassau County)
<PAGE>
guarantee.doc
Schedule 6
PATENTS AND PATENT LICENSES
TRADEMARKS AND TRADEMARK LICENSES
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Short Status Application Filing U.S. Patent Issue
Description Number Date Number Date Title
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
EPI Vapor Dep granted 140,293 4/14/80 4,293,755 10/6/81 Method for cooling
induction-heated vapor dep.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
CVD-EPI granted 10,746 2/9/79 4,284,867 8/18/81 Chemical vapor dep. reactor with
infrared reflector.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Poli-Si granted 6/037864 5/10/79 4,238,436 12/9/80 Separation of polycrystalline
silicon.
in EPI reactor granted 6/106767 12/26/79 4,271,235 6/2/81 Method of obtaining polysilicon
and ...
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
EPI suscept. Imp... granted 433,158 10/6/82 4,499,354 2/12/85 Susceptor for radiant absorption
heater system.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Schottky granted 703,703 2/12/85 4,638,551 1/27/87 Schottky barrier device & method
of manufacture.
Guardring granted 922,532 10/23/86 4,742,377 5/3/88 Schottky barrier device with
doped composite guarding.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
EPI suscept imp. granted 553,962 11/21/83 4,522,149 6/11/85 Reactor and susceptor for
chemical vapor.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Brazed Melf granted 648,672 9/10/84 4,564,885 1/14/86 Rectifier with slug construction
and mold.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Opto package granted 4,590,667 5/27/86 Method and apparatus for
assembling semi...LED's.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Epi granted 750,488 6/27/85 4,659,400 4/21/87 Method of forming epitaxial
wafers.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Epi-PAR granted 784,451 10/4/85 4,740,477 4/26/88 Method for fabricating a
rectifying P-N junction having ...
granted 142,737 1/11/88 4,891,685 1/2/90 Rectifying P-N junction having
improved breakdown.
granted 404,604 9/27/89 5,010,023 4/23/91
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
MOSFET granted 150,755 2/1/88 4,859,621 8/22/89 Method for setting the threshold
voltage of a power...
granted 358,883 5/30/89 4,929,987 5/29/90
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Opto patent granted 5,412 1/20/87 4,789,886 12/6/88 Method and apparatus for
insulating high voltage.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Brazed GPP granted 151,066 2/1/88 4,942,139 7/17/90 Method...brazed glass
prepassivated chip rectifier.
granted 480,367 12/14/90 4,987,476 1/22/91 Brazed glass prepassivated chip
rectifier.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Salastic passiv. granted 4,904,610 2/27/90 Water level process for
fabricating passivated
sem...devices.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Square MELF granted 164,219 3/4/88 4,829,406 5/9/89 Square body leadless electrical
device.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Non epi PAR aband 219,071 7/18/88 Passivated p-n junction in mesa
semiconductor structure.
granted 365,519 6/13/89 4,980,315 12/25/90 Method...passivated P-N junction
in mesa.
granted 884,325 5/11/92 5,166,769 11/14/92 Passivated mesa semiconductor
and...
granted 921,900 7/29/92 5,278,095 1/11/94 Method for making passivated mesa
semiconductor.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Brazing material granted 314,808 2/24/89 4,921,158 5/1/90 Brazing material.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Si-Ge Epi granted 492,117 3/13/90 5,097,308 3/17/92 Method for controlling the
switching speed of bipolar...
granted 684,682 4/11/91 5,102,810 4/7/92
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
SiC package granted 447,213 12/7/89 5,008,735 4/16/91 Package diode for high temp.
operation.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Cupped moly pending 737,401 7/29/91 Rectifier construction.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
GF1 granted 748,876 8/23/91 5,151,846 9/29/92 Method of making surface mount
superectifier.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
E-Pak granted 917,778 7/21/92 5,371,647 12/6/94 Surge protection circuit module
and...
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Melf with notches (for granted 752,749 8/30/91 5,248,902 9/28/93 Surface mounting diode.
Taiwan only)
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Melf with notches pending 821,683 1/16/92 Semiconductor diode construction.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Surge pack case pending 148,875 11/8/93 Plastic hollow case for
encapsulation of a ...
pending 218,802 3/28/94
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
A-Pak granted 229,555 4/19/94 5,512,784 4/30/96 Surge protector subassembly for
3-lead...package.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Lead straightening granted 856,715 3/24/92 5,304,429 4/19/94 Semiconductor devices having
copper terminal leads
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Smart epi granted 15,384 2/9/93 5,324,685 6/28/94 Method for fabricating a
multilayer epitaxial structure.
granted 66,538 5/24/93
granted 242,877 5/16/94 5,432,121 7/11/95
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Smart epi reactor aband 15,658 2/9/93
granted 411,408 3/28/95 5,571,329 11/5/96 Gas flow system for CVD reactor.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
TVS (GSI) granted 836,491 2/18/92 5,245,412 9/14/93 Low capacitance silicon transient
suppressor.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
2 chip pkg. (GSI) granted 5,528,079 6/18/96 ...package for a two terminal
semiconductor device.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
TVS Array (GSI) pending 814,379 12/26/91 Multilead small outline diode
array package.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Surgepack (GSI) granted 4,599,636 7/8/86 Two terminal axial lead
suppressor
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Low-cost epi granted 21,130 3/8/93 5,360,509 11/1/94 Low cost method of fabricating
epi. semicond. Devices.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Ni plating tool pending 08/282914 7/29/94 Containing apparatus for
electronic parts.
pending 08/541605 10/10/95
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Beta-smart epi granted 82,952 7/1/93 5,298,457 3/29/94 Method...epi techniques to form
Si-Ge interfaces...
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Mega-smart epi granted 82,951 7/1/93 5,342,805 8/30/94 Method...semiconductor material
by epitaxi.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Biframe granted 274,009 1/12/94 5,506,174 4/9/96 Automated assembly...a pair of
lead frames.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Triframe granted 273,854 7/12/94 5,484,097 1/16/96 Fabrication of hybrid
semiconductor devices.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Epi PAR corner granted 230,299 4/20/94 5,399,901 3/21/95 Semiconductor...for improved
surface voltage breakdown...
pending 406,515 3/17/95 Semiconductor...for improved
surface voltage breakdown...
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Slit in Tab allowed 509,378 95 Lead with slits for improved
solder joints.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Si-Ge FER pending 08/580071 Dec. '95 TVS FER with optimized placing of
Si-GE layers.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
L.C. Epi for Sky allowed 409762 96 Improved method...LCE...and
Schottky devices.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Waffle chip pending 08/554749 11/7/95 Mesa semiconductor structure with
depressed region.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Planar FER pending 08/649135 5/14/96 Planar P-N junction structure
with multilayer passivation.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Liquid epoxy pending 21487794 11/4/94 Method of encapsulating
semiconductors.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Liquid epoxy pending 08/580,070 12/20/95 Method & apparatus for injection
molding of...
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Imp rev energy pending Diode with improved rev energy
char and method for...
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Epi (GS 100) pending 09/010,471 11/24/98 Epitaxial-type semicond. with
improved resistance to
transient...
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
switching diode (ITT) granted 5,814,874 9/29/99 Semicond. Device having shorter
switching time with low VF
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
MESA Structure granted 50,106 3/30/98 5,885,986 3/16/99 Semi Chips having MESA Structure
provided by Sawing.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
Fabricating Diode granted 5,930,660 Fabricating Diode with Improved
Reverse Energy.
- ------------------------ ----------- -------------- ----------- -------------- ------------ -----------------------------------
- ------------------------ ----------- -------------- ----------- ----------------- --------- -----------------------------------
Short Status Application Filing Patent Issue
Description Number Date Number Date Title
- ------------------------ ----------- -------------- ----------- ----------------- --------- -----------------------------------
- ------------------------ ----------- -------------- ----------- ----------------- --------- -----------------------------------
Low-cost Epi MY granted MY-110854-A 5/31/99 Low cost method of Fabricating
Expitaxial Semiconductor Devices.
- ------------------------ ----------- -------------- ----------- ----------------- --------- -----------------------------------
</TABLE>
<PAGE>
Schedule 6
PATENTS AND PATENT LICENSES
TRADEMARKS AND TRADEMARK LICENSES
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
REFERENCES MARK FILED APPL # REGDT REG # STATUS
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
65375-0064 GENERAL SEMICONDUCTOR 12/23/96 75/217,340 10/13/98 2,194,144 Registered
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
65375-0061 GENFET Mailed
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
65375-0065 GS & DESIGN 7/9/97 75/321,569 Allowed
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
65375-0066 GSI 12/23/96 76/217,341 Allowed
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
65375-0006 SUPERECTIFIER 1/28/85 73/519,608 8/27/85 1,356,394 Registered
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
65375-0027 THYZORB 12/20/84 73/514,475 7/2/85 1,345,882 Registered
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
653375-0002 TRANSZORB 7/28/98 7/28/96 75/526,580 Pending
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
65376-0076 ZORB 2/17/88 73/712,184 9/13/88 1,503,773 Registered
- ----------------------- ------------------------ ---------- --------------- ------------- ------------ -------------
</TABLE>
<PAGE>
guarantee.doc
ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Guarantee and
Collateral Agreement dated as of August 15, 1999 (the "Agreement"), made by the
Grantors parties thereto for the benefit of The Chase Manhattan Bank, as
Administrative Agent. The undersigned agrees for the benefit of the
Administrative Agent, the Co-Agents and the Banks as follows:
1. The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the undersigned.
2. The undersigned will notify the Administrative Agent promptly in writing
of the occurrence of any of the events described in Section 5.7(a) of the
Agreement.
3. The terms of Sections 6.3(c) and 6.7 of the Agreement shall apply to it,
mutatis mutandis, with respect to all actions that may be required of it
pursuant to Section 6.3(c) or 6.7 of the Agreement.
[NAME OF ISSUER]
By:
Name:
Title:
Address for Notices:
Fax:
<PAGE>
2
guarantee.doc
Annex 1 to
Guarantee and Collateral Agreement
ASSUMPTION AGREEMENT, dated as of____________, __, made by
__________________________________, a ________________ corporation (the
"Additional Grantor"), in favor of THE CHASE MANHATTAN BANK, as administrative
agent (in such capacity, the "Administrative Agent") for the banks and other
financial institutions (the "Banks") parties to the Credit Agreement referred to
below. All capitalized terms not defined herein shall have the meaning ascribed
to them in such Credit Agreement.
W I T N E S S E T H:
WHEREAS, General Semiconductor, Inc., a Delaware corporation (the
"Company"), is a party to the Credit Agreement, dated as of July 23, 1997, with
the Administrative Agent, the Banks and the Co-Agents named therein (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement");
WHEREAS, in connection with the Credit Agreement, the Company and certain
of its Subsidiaries (other than the Additional Grantor) have entered into the
Guarantee and Collateral Agreement, dated as of August 15, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Guarantee and
Collateral Agreement") in favor of the Administrative Agent for the benefit of
the Banks;
WHEREAS, the Credit Agreement requires the Additional Grantor to become a
party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver this
Assumption Agreement in order to become a party to the Guarantee and Collateral
Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing and delivering this
Assumption Agreement, the Additional Grantor, as provided in Section 8.15 of the
Guarantee and Collateral Agreement, hereby becomes a party to the Guarantee and
Collateral Agreement as a Grantor thereunder with the same force and effect as
if originally named therein as a Grantor and, without limiting the generality of
the foregoing, hereby expressly assumes all obligations and liabilities of a
Grantor thereunder. The information set forth in Annex 1-A hereto is hereby
added to the information set forth in the Schedules to the Guarantee and
Collateral Agreement. The Additional Grantor hereby represents and warrants that
each of the representations and warranties contained in Section 4 of the
Guarantee and Collateral Agreement is true and correct on and as the date hereof
(after giving effect to this Assumption Agreement) as if made on and as of such
date.
2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to
be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:
Name:
Title:
Annex 1-A to
Assumption Agreement
Supplement to Schedule 1
Supplement to Schedule 2
Supplement to Schedule 3
Supplement to Schedule 4
Supplement to Schedule 5
Supplement to Schedule 6
Supplement to Schedule 7
Supplement to Schedule 8
GENERAL SEMICONDUCTOR, INC.
ANNUAL INCENTIVE PLAN
1. Purpose
The purpose of the Annual Incentive Plan is to enhance the ability of
General Semiconductor, Inc. to attract, motivate, reward and retain key
employees, to strengthen their commitment to the success of the Company and to
align their interests with those of the Company's stockholders by providing
additional compensation to designated key employees of the Company based on the
achievement of performance objectives. To this end, the Annual Incentive Plan
provides a means of annually rewarding participants primarily based on the
performance of the Company and its Business Units and secondarily based on the
achievement of personal performance objectives.
2. Eligibility
Participation in the Plan for a Performance Period shall be limited to
those Employees who, because of their significant impact on the current and
future success of the Company, the CEO selects, in accordance with Section 4, to
participate in the Plan for that Performance Period. Notwithstanding the
foregoing, Officers shall participate in the Plan in every Performance Period.
To be eligible to participate in the Plan in any Performance Period an
Employee shall have had at least three months active tenure during such
Performance Period and be actively employed by the Company on the Award payment
date (except as provided in Sections 6 and 7).
Employees shall participate in only one annual cash or sales incentive plan
for any specific period in time. For example, an individual may not participate
in both the Plan and the Company's sales incentive plan at the same time. An
individual may participate in this Plan and another Plan sequentially during any
Performance Period because of promotion or reassignment, provided that
participation in each such plan is pro-rated to reflect (to the nearest weekly
increment) the period during which he or she participated in each plan.
3. Administration
The administration of the Plan shall be consistent with the purpose and the
terms of the Plan. The Plan shall be administered by the Committee with respect
to Officers and by the CEO with respect to all other Participants. The Committee
and the CEO, as the case may be, shall have full authority to establish the
rules and regulations relating to the Plan, to interpret the Plan and those
rules and regulations, to select Participants in the Plan, to determine each
Participant's Target Award Percentage, to approve all Awards, to decide the
facts in any case arising under the Plan and to make all other determinations
and to take all other actions necessary or appropriate for the proper
administration of the Plan, including the delegation of such authority or power,
where appropriate; provided, however, that only the Committee shall have
authority to amend or terminate the Plan. The Committee's and the CEO's
administration of the Plan, including all such rules and regulations,
interpretations, selections, determinations, approvals, decisions, delegations,
amendments, terminations and other actions, shall be final and binding on the
Company, their respective stockholders and all employees of the Company,
including the Participants and their respective beneficiaries.
4. Determination of Awards
Prior to, or as soon as practicable following, the commencement of each
Performance Period, the CEO with respect to all Employees other than Officers
shall determine the Employees who shall be Participants during that Performance
Period and determine each Participant's Target Award Percentage and the
Committee shall determine each Officer's Target Award Percentage. The Company
shall prepare schedules, which will be treated as part of the Plan for that
Performance Period, setting forth (a) the Participants during that Performance
Period, (b) each Participant's Target Award Percentage for that Performance
Period, and (c) the Operational Targets (and the allocation among the
Operational Targets) for that Performance Period (which shall be established
within 90 days after the commencement of such Performance Period). The Company
shall notify each Participant of his or her Target Award Percentage and the
applicable Operational Targets for the Performance Period. The Committee shall
establish the Target Award Percentage and the Operational Targets for Officers
within 90 days after the commencement of the relevant Performance Period.
A Participant earns an Award for a Performance Period based on (i) the
Company's and his or her Business Unit's achievement of the Operational Targets,
and (ii) in the case of Participants other than the CEO, his or her achievement
of personal performance goals. The portion of Awards based on Company or
Business Unit Performance will only be earned if the Company or Business Unit,
as applicable, achieves at least the minimum percentage specified by the
Committee or the CEO, as applicable, of the Operational Target set for the
Performance Period. The Awards for any Performance Period may also be increased
above the Target Award Percentage for achievement in excess of the Operational
Targets for that Performance Period, as specified by the Committee or CEO, as
applicable, for that Performance Period. The Awards of each Participant (other
than the CEO) may be adjusted upward or downward by twenty percent (20%) by the
Committee or the CEO, as applicable, based upon the CEO's or the Committee's
determination of a Participant's Personal Performance Percentage for that
Performance Period; provided, however, that such adjustments shall neither
increase nor decrease the total amount paid on the basis of the achievement of
the Operational Targets for that Performance Period. The Committee is authorized
to reduce the amount of the award payable to the CEO by not more than 20% for
any Performance Period based upon its assessment of personal performance but not
to increase the Award above that yielded by the Operational Target Award earned
for the CEO.
5. Changes to the Target
The Committee, with respect to Officers, and the CEO, with respect to all
other Participants, may at any time prior to the final determination of Awards
change the Target Award Percentage of any Participant or assign a different
Target Award Percentage to a Participant to reflect any change in the
Participant's responsibility level or position during the course of the
Performance Period.
The Committee, with respect to Officers, and the CEO, with respect to all
other Participants, may at any time prior to the final determination of Awards
change the Operational Targets to reflect a change in corporate capitalization,
such as a stock split or stock dividend, or a corporate transaction, such as a
merger, consolidation, separation, reorganization or partial or complete
liquidation; or to equitably reflect changed business circumstances during the
Performance Period; the occurrence of any extraordinary event; any change in
applicable accounting rules or principles; any change in the Company's method of
accounting; any change in applicable law; any change due to any merger,
consolidation, acquisition, reorganization, stock split, stock dividend
combination of shares or other changes in the Company's corporate structure or
shares; or any other change of a similar nature.
6. Payment of Awards
The Committee shall certify and announce the Awards that will be paid by
the Company to each Officer as soon as practicable following the final
determination of the Company's financial results for the relevant Performance
Period. Subject to the provisions of Section 7, payment of the Awards certified
by the Committee shall normally be made, in a single lump sum cash payment as
soon as practicable following the close of such Performance Period but in any
event within 120 days after the close of the Performance Period. In the case of
all other Participants, as soon as practicable after the close of a Performance
Period, the CEO shall review the Business Units' financial performance against
the Operational Targets for that Performance Period and, subject to the
provisions of Section 7, each Award to the extent earned shall be paid in a
single lump sum cash payment as soon as practicable after the close of the
Performance Period, but no later than 120 days following the close of the
Performance Period.
If a Change in Control occurs, the Company shall, within 60 days
thereafter, pay to each Participant in the Plan immediately prior to the Change
in Control (regardless of whether the Participant remains employed after the
Change in Control) an Award which is calculated assuming that all performance
percentages are 100 percent, and such Award shall be prorated to the date of the
Change in Control based on the Participant's Base Salary earned to the date of
the Change in Control.
7. Limitations on Rights to Payment of Awards
No Participant shall have any right to receive payment of an Award under
the Plan for a Performance Period unless the Participant remains in the employ
of the Company through the Award payment date, except as provided in the last
paragraph of Section 6. However, if the Participant has active service with the
Company for at least three months during any Performance Period and the
Participant's employment with the Company terminates due to the death,
Disability or Retirement (or, in the event of the Participant's death, the
Participant's estate, beneficiary or beneficiaries as determined under Section
8), the Participant shall remain eligible to receive a prorated portion of any
earned Award, based on the number of weeks that the Participant was actively
employed and performed services during such Performance Period.
8. Designation of Beneficiary
A Participant may designate a beneficiary or beneficiaries who, in the
event of the Participant's death prior to full payment of any Award hereunder,
shall receive payment of any Award due under the Plan. Such designation shall be
made by the Participant on a form prescribed by the Committee. The Participant
may, at any time, change or revoke such designation. A beneficiary designation,
or revocation of a prior beneficiary designation, will be effective only if it
is made in writing on a form provided by the Company, signed by the Participant
and received by the Company's Human Resources Department. If the Participant
does not designate a beneficiary or the beneficiary dies prior to receiving any
payment of an Award, Awards payable under the Plan shall be paid to the
Participant's estate.
9. Amendment and Termination
(a) The Committee may at any time, or from time to time, amend, in whole or
in part, the Plan. However, no amendment or termination of the Plan shall
adversely affect any Participant's right to or interest in an Award earned prior
to the date of such amendment, unless the Participant agrees in writing thereto.
(b) The Committee may terminate the Plan, in whole or in part; however,
each Participant shall receive an amount equal to the amount of the Award that
would have been paid for the Performance Period, prorated for the number of
weeks in the Performance Period prior to the date of termination of the Plan.
10. Miscellaneous Provisions
(a) This Plan is not a contract between the Company and the Employees or
the Participants. Neither the establishment of this Plan, nor any action taken
hereunder, shall be construed as giving any Employee or any Participant any
right to be retained in the employ of the Company. The Company is under no
obligation to continue the Plan.
(b) A Participant's right and interest under the Plan may not be assigned
or transferred, except as provided in Section 8, and any attempted assignment or
transfer shall be null and void and shall extinguish, in the Company's sole
discretion, the Company's obligation under the Plan to pay Awards with respect
to the Participant.
(c) The Plan shall be unfunded. The Company shall not be required to
establish any special or separate fund, or to make any other segregation of
assets, to assure payment of Awards.
(d) The Company shall have the right to deduct from Awards paid, any taxes
or other amounts required by law to be withheld.
(e) Nothing contained in the Plan shall limit or affect in any manner or
degree the normal and usual powers of management, exercised by the Officers and
the Board of Directors or committees thereof, to change the duties or the
character of employment of any employee of the Company or to remove the
individual from the employment of the Company at any time, all of which rights
and powers are expressly reserved.
(f) The Plan and the rights of all persons claiming hereunder shall be
construed and determined in accordance with the laws of the State of New York,
without giving effect to conflict of law principles thereof.
11. Definitions
(a) "Award" shall mean the incentive award earned by a Participant under
the Plan for any Performance Period.
(b)"Base Salary" shall mean the Participant's annual base salary, paid in
the performance period. Annual base salary does not include Awards under the
Plan, long-term incentive awards, imputed income from such programs as executive
life insurance or nonrecurring earnings such as moving expenses and is based on
salary before reductions for such items as contributions under Sections 401(k)
or 125 of the Internal Revenue Code of 1986, as amended, and Company-sponsored
deferred compensation arrangements.
(c) "Board" shall mean the Board of Directors of the Company.
(d) "Business Unit" shall mean either the Company, a strategic function,
regional group or other unit of classification, as specified by the Committee or
CEO, as applicable.
(e) "CEO" shall mean the Chief Executive Officer of the Company.
(f) "Change in Control" shall mean the occurrence of any of the following:
(1) An acquisition (other than directly from the Company) of any voting
securities of the Company (the "Voting Securities") by any "Person" (as the term
Person is used for purposes of Section 13(d) or 14(d) of the 1934 Act),
immediately after which such Person has "Beneficial Ownership" (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty-three
percent (33%) or more of the then outstanding Shares or the combined voting
power of the Company's then outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred pursuant to this Section
11(f)(1), Shares or Voting Securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not constitute an acquisition which
would cause a Change in Control. A "Non-Control Acquisition" shall mean an
acquisition by (i) an employee benefit plan (or a trust forming a part thereof)
maintained by (A) the Company or (B) any corporation or other Person of which a
majority of its voting power or its voting equity securities or equity interest
is owned, directly or indirectly, by the Company (for purposes of this
definition, a "Related Entity"), (ii) the Company or any Related Entity, or
(iii) any Person in connection with a "Non-Control Transaction" (as hereinafter
defined);
(2) The individuals who, as of October 19, 1999, are members of the Board
(the "Incumbent Board"), cease, for any reason, to constitute at least a
majority of the members of the Board; provided, however, that if the election,
or nomination for election by the Company's common stockholders, of any new
director was approved by a vote of at least two-thirds (2/3) of the Incumbent
Board, such new director shall, for purposes of this Plan, be considered as a
member of the Incumbent Board; provided further, however, that no individual
shall be considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened "Election Contest"
(as described in Rule 14a-11 promulgated under the Exchange Act) or other actual
or threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board (a "Proxy Contest") including by reason of any agreement
intended to avoid or settle any Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or reorganization with or into the Company or
in which securities of the Company are issued, unless such merger, consolidation
or reorganization is a "Non-Control Transaction." A "Non-Control Transaction"
shall mean a merger, consolidation or reorganization with or into the Company or
in which securities of the Company are issued where:
(i) the stockholders of the Company, immediately before such merger,
consolidation or reorganization, own directly or indirectly immediately
following such merger, consolidation or reorganization, at least a majority of
the combined voting power of the outstanding voting securities of the
corporation resulting from such merger or consolidation or reorganization (the
"Surviving Corporation"), in substantially the same proportion as their
ownership of the Voting Securities immediately before such merger, consolidation
or reorganization.
(ii) the individuals, who were members of the Incumbent Board immediately
prior to the extension of the agreement providing for such merger, consolidation
or reorganization, constitute at least a majority of the members of the board of
directors of the Surviving Corporation, or a corporation beneficially directly
or indirectly owning a majority of the Voting Securities of the Surviving
Corporation, and
(iii) no Person other than (1) the Company, (2) any Related Entity, (3) any
employee benefit plan (or any trust forming a part thereof) that, immediately
prior to such merger, consolidation or reorganization, was maintained by the
Company or any Related Entity, or (4) any Person who, immediately prior to such
merger, consolidation or reorganization had Beneficial Ownership of thirty-three
percent (33%) or more of the then outstanding Voting Securities or Shares, has
Beneficial Ownership of thirty-three percent (33%) or more of the combined
voting power of the Surviving Corporation's then outstanding voting securities
or its common stock.
(B) A complete liquidation or dissolution of the Company; or
(C) The sale or other disposition of all or substantially all of the assets
of the Company to any Person (other than a transfer to a Related Entity or the
distribution to the Company's stockholders of the stock of a Related Entity or
any other assets).
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the then outstanding Shares or
Voting Securities as a result of the acquisition of Shares or Voting Securities
by the Company which, by reducing the number of Shares or Voting Securities then
outstanding, increases the proportional number of shares Beneficially Owned by
the Subject Persons, provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the acquisition of Shares or
Voting Securities by the Company, and after such share acquisition by the
Company, the Subject Person becomes the Beneficial Owner of any additional
Shares or Voting Securities Beneficially Owned by the Subject Person, then a
Change in Control shall occur.
(g) "Committee" shall mean the Compensation Committee of the Board.
(h) "Company" shall mean General Semiconductor, Inc., and its Subsidiaries.
(i) "Disability" shall mean permanent disability, as defined in the
Company's long-term disability plan.
(j) "Effective Date" shall mean January 1, 2000.
(l) "Employee" shall mean any person (including an officer) employed by the
Company or any of its Subsidiaries on a full-time salaried basis.
(m) "1934 Act" shall mean the Securities Exchange Act of 1934, as amended.
(n) "Officer" shall mean the CEO and an officer of the Company elected by
the Board.
(o) "Operational Targets," for any Performance Period, shall mean the
financial performance of the Company, as specified by the Committee or the CEO,
as applicable, as the stock price, earnings per share, net earnings, operating
income, return on assets, net capital employed, shareholder return, return on
equity, growth in assets, unit volume, sales, market share, or strategic
business criteria consisting of one or more Company objectives based on meeting
specified revenue goals, market penetration goals, geographic business expansion
goals, cost targets, customer satisfaction goals, product development goals, or
goals relating to acquisitions or divestitures. In setting Operational Targets
pursuant to Section 4, the Committee or the CEO shall use objectively
determinable Operational Targets based on the foregoing criteria. To the extent
applicable, any such Operational Target shall be determined in accordance with
generally accepted accounting principles and reported upon by the Company's
independent accountants. The Operational Targets established by the Committee or
the CEO may be (but need not be) different each Performance Period and different
Operational Targets may be applicable to different Participants.
(p) "Participant," for any Performance Period, shall mean an Officer or
Employee selected to participate in the Plan for such Performance Period in
accordance with Section 2.
(q) "Performance Period" shall mean the fiscal year of the Company or any
other period designated by the Committee with respect to which an Award is
earned.
(s) "Personal Performance Percentage," with respect to Participants other
than the CEO for any Performance Period, shall mean the percentage between 80%
and 120%, based on the achievement of the Participant's personal performance
goals, as determined in accordance with Section 4.
(t) "Plan" shall mean this General Semiconductor, Inc. Annual Incentive
Plan, as from time to time amended and in effect.
(u) "Retirement" shall mean retirement at or after age 65 or early
retirement with the prior written approval of the Company.
(v) "Shares" shall mean the common stock, par value $.01 per share, of the
Company.
(w) "Subsidiary" shall mean a corporation as defined in Section 424(f) of
the Internal Revenue Code of 1986, as amended, with the Company being treated as
the employer corporation for purposes of this definition.
(x) "Target Award Percentage" for any Participant with respect to any
Performance Period, shall mean the percentage of the Participant's Base Salary
that the Participant would earn as an Award for that Performance Period if each
of the Operational Target Awards Earned and the Personal Performance Percentage
(if applicable) for that Performance Period is 100%, and shall be determined by
the Committee with respect to Officers and by the CEO with respect to all other
Participants, based on the Participant's responsibility level or the position or
positions held during the Performance Period; provided, however, that if any
Participant other than an Officer held more than one position during the
Performance Period, then the CEO may designate a different Target Award
Percentage with respect to each position and the Award will be pro-rated to
reflect ( to the nearest semi-monthly increment) the period during which such
Participant had each Target Award Percentage.
Adopted: ________________, 1999
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<NAME> General Semiconductor Inc
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GENERAL SEMICONDUCTOR, INC. (THE "COMPANY")
EXHIBIT 99 - FORWARD LOOKING INFORMATION
The Private Securities Litigation Reform Act of 1995 provides a "safe harbor"
for forward looking statements. The Company's Form 10-K/A for the year ended
December 31, 1998, the Company's 1998 Annual Report to Stockholders, any Form
10-Q or Form 8-K of the Company, or any other oral or written statements made by
or on behalf of the Company, may include forward looking statements which
reflect the Company's current views with respect to future events and financial
performance. These forward looking statements are identified by their use of
such terms and phrases as "intends," "intend," "intended," "goal," "estimate,"
"estimates," "expects," "expect," "expected," "project," "projects,"
"projected," "projections," "plans," "anticipates," "anticipated," "should,"
"designed to," "foreseeable future," "believe," "believes" and "scheduled" and
similar expressions. Readers are cautioned not to place undue reliance on these
forward looking statements, which speak only as of the date the statement was
made. The Company undertakes no obligation to publicly update or revise any
forward looking statements, whether as a result of new information, future
events or otherwise.
The actual results of the Company may differ significantly from the results
discussed in forward-looking statements. Factors that might cause such a
difference include, but are not limited to, (a) the general political, economic
and competitive conditions in the United States, Taiwan (Republic of China), the
People's Republic of China, Ireland, Germany, France and other markets where the
Company operates; (b) changes in capital availability or costs, such as changes
in interest rates, market perceptions of the industry in which the Company
operates, or security ratings; (c) uncertainties relating to customer plans and
commitments; (d) employee workforce factors; (e) authoritative generally
accepted accounting principles or policy changes from such standard-setting
bodies as the Financial Accounting Standards Board and the Securities and
Exchange Commission and the factors set forth below.
Leverage; Certain Restrictions Under Credit Facilities
The Company is substantially leveraged. The degree to which the Company is
leveraged could have important consequences, including the following: (i) the
Company's ability to obtain additional financing in the future for working
capital, capital expenditures, product development, acquisitions, general
corporate purposes or other purposes may be impaired; (ii) a portion of the
Company's and its subsidiaries' cash flow from operations must be dedicated to
the payment of the principal of and interest on its indebtedness; (iii) the
Company Credit Agreement, dated as of July 23, 1997 as amended, with certain
banks, and The Chase Manhattan Bank, as Administrative Agent, contains certain
restrictive financial and operating covenants, including, among others,
requirements that the Company satisfy certain financial ratios; (iv) a
significant portion of the Company's borrowings are at floating rates of
interest, causing the Company to be vulnerable to increases in interest rates;
(v) the Company's degree of leverage may make it more vulnerable to a downturn
in general economic conditions; and (vi) the Company's degree of leverage may
limit its flexibility in responding to changing business and economic
conditions.
Competition
The Company operates in the discrete segment of the semiconductor business. Its
products are commodity-like in nature and are subject to cyclical variations in
pricing and capacity utilization levels.The Company is subject to competition
from a substantial number of foreign and domestic companies, some of which have
greater financial, engineering, manufacturing and other resources, or offer a
broader product line, than the Company. The Company's competitors can be
expected to continue to improve the design and performance of their products and
to introduce new products with competitive price and performance
characteristics. Although the Company believes that it enjoys certain
technological and other advantages over its competitors, realizing and
maintaining such advantages will require continued investment by the Company in
engineering, research and development, marketing and customer service and
support. There can be no assurance that the Company will have sufficient
resources to continue to make such investments or that the Company will be
successful in maintaining such advantages.
Industry Price Declines
The discrete segment of the semiconductor industry has recently experienced
unusually large price declines and may experience such declines in the future.
During 1998 and 1999, average selling prices of the Company's products weakened
at rates beyond those historically experienced due to continued excess capacity
in the industry. The excess capacity resulted from a combination of factors,
including industry expansion in 1996, economic difficulties in Southeast Asia,
the economic slowdown in Japan and difficulties in the computer and computer
peripherals industry. During this period, the Company's manufacturing facilities
were underutilized. The underutilization of the Company's facilities for an
extended period in the future could result in production inefficiencies and
cause a reduction in the Company's operating margins. There can be no assurance
that the discrete segment of the semiconductor industry will not experience
future pricing declines which could have a material adverse effect on the
Company's business, results of operations and liquidity.
International Operations
Almost all of the Company's products are manufactured or assembled in Taiwan
(Republic of China), the People's Republic of China, Ireland, Germany, and
France. These foreign operations are subject to the usual risks inherent in
situating operations abroad, including risks with respect to currency exchange
rates, economic and political destabilization, restrictive actions by foreign
governments, nationalizations, natural events such as severe weather, floods and
earthquakes, the laws and policies of the United States affecting trade, foreign
investment and loans, and foreign tax laws. The Company's cost-competitive
status relative to other competitors could be adversely affected if the Company
experiences unfavorable movements in foreign currency rates. In addition, a
substantial portion of the annual sales of the Company' business are outside of
the United States.
International sales generally represent 70% of the Company's worldwide sales.
Sales to the Asia Pacific region accounted for approximately 35% of the
Company's worldwide sales for the year ended December 31, 1998. The Company's
order trends and average selling prices weakened significantly in 1998,
reflecting the economic difficulties in Southeast Asia, the economic slowdown in
Japan and the difficulties in the computer and computer peripherals industry. In
the first half of 1999, the Company has benefited from improving economic
conditions in Southeast Asia but has still experienced price erosion. The
Company's financial performance in the future may be adversely affected by
international economic conditions.
Environment
The Company is subject to various federal, state, local and foreign laws and
regulations governing environmental matters, including the use, discharge and
disposal of hazardous materials. The Company's manufacturing facilities are
believed to be in substantial compliance with current laws and regulations.
Complying with current laws and regulations has not had a material adverse
effect on the Company's financial condition. The Company is responsible for
obligations with respect to environmental matters relating to the Company's
discontinued operations and its status as a "potentially responsible party." The
Company is presently engaged in the remediation of eight discontinued operations
in six states, and is a "potentially responsible party" at five hazardous waste
sites in four states.
The Company has engaged independent consultants to assist management in
evaluating potential liabilities related to environmental matters. Management
assesses the input from these independent consultants along with other
information known to the Company in its effort to continually monitor these
potential liabilities. Management assesses its environmental exposure on a
site-by-site basis, including those sites where the Company has been named a
"potentially responsible party." Such assessments include the Company's share of
remediation costs, information known to the Company concerning the size of the
hazardous waste sites, their years of operation and the number of past users and
their financial viability. The Company has recorded a reserve for environmental
matters of $30.6 million at September 30, 1999 ($31.3 million at June 30, 1999).
While the ultimate outcome of these matters cannot be determined, management
does not believe that the final disposition of these matters will have a
material adverse affect on the Company's financial position, results of
operations or cash flows beyond the amounts previously provided for in the
financial statements.
The Company's present and past facilities have been in operation for many years,
and over that time in the course of those operations, such facilities have used
substances which are or might be considered hazardous, and the Company has
generated and disposed of wastes which are or might be considered hazardous.
Therefore, it is possible that additional environmental issues may arise in the
future which the Company cannot now predict.
Year 2000
The Company recognizes the importance of ensuring that neither its customers nor
its business operations are disrupted as a result of the Year 2000 phenomenon.
This phenomenon is a result of computer programs having been written using two
digits (rather than four) to define the applicable year. Any information
technology ("IT") systems that have time sensitive software may recognize a date
using "00" as the year 1900 rather than the year 2000, which could result in
miscalculations and systems failures. The problem also extends to many "non-IT"
systems such as operating and control systems that rely on embedded chip
systems. The Company, with the assistance of outside consulting resources, is
centrally coordinating activities directed toward achieving global Year 2000
compliance. The primary areas of potential impact include business application
systems, production equipment systems, suppliers, financial institutions,
government agencies and environmental support organizations. None of the
Company's products contain date sensitive or date processing logic.
In 1996 the Company began an upgrade of its business applications software which
includes the implementation of the full suite of JD Edwards ("JDE") financial,
distribution and manufacturing applications. The JDE software was selected to
add worldwide functionality and efficiency to the business processes of the
Company as well as address Year 2000 exposure. The JDE financial and
distribution modules have been installed and are Year 2000 compliant. The JDE
manufacturing module will be installed in 2000. The Company has completed the
modification of the existing manufacturing applications with each of its six
factories.
Since the Company's financial, distribution and manufacturing applications are
Year 2000 compliant, incremental costs associated with achieving Year 2000
compliance beyond the scope of this project (estimated at less than $1.0
million) should not have a material effect on the Company's financial condition
or results of operations and are being expensed as incurred.
The Company has surveyed its suppliers, financial institutions, government
agencies and others with which it does business to determine their Year 2000
readiness and coordinate conversion efforts. At the current time, respondents
critical to the operations of the Company have indicated that they are, or
reasonably believe that they will be, Year 2000 compliant. If a material risk
arises, the Company is prepared to perform on-site visits to validate the
accuracy of the information received and will test such systems where
appropriate and possible. Additionally, the Company has established programs to
ensure that future purchases of equipment and software are Year 2000 compliant.
Costs incurred have been insignificant to date.
The Company does not expect Year 2000 issues to have a material adverse effect
on its products, services, competitive position, financial condition or results
of operations. If, however, any of the Company systems are not Year 2000
compliant or if government agencies, the Company's customers, or suppliers fail
to achieve Year 2000 compliance, the Company may experience adverse consequences
including the following: (i) customers may be unable to place orders due either
to the Company's or customers system failures; (ii) the Company may be unable to
maintain adequate production scheduling, inventory cost accounting and other
elements of its business that are dependent upon computer systems; and (iii) the
Company may be unable to deliver its products on a timely basis.
The disclosures contained herein constitute Year 2000 Readiness Statements
pursuant to the Year 2000 Information and Readiness Disclosure Act, Public Law
105-271.
