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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES ACT OF 1934
(AMENDMENT NO. 1)*
TRIQUINT SEMICONDUCTOR, INC.
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.001 PER SHARE
(Title of Class of Securities)
89674K103
(CUSIP Number)
PAMELA F. CRAVEN
600 MOUNTAIN AVENUE
MURRAY HILL, NJ 07974
(908) 582-8500
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
JULY 13, 1999
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP No. 89674K103
1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Lucent Technologies Inc. 22-3408857
2) CHECK THE APPROPRIATE ROW IF A MEMBER OF A GROUP (See Instructions)
(a) [ ]
(b) [ ]
3) SEC USE ONLY
4) SOURCE OF FUNDS
OO
5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) OR 2(e) [ ]
6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
Number of 7) SOLE VOTING POWER -0-
Shares
Beneficially 8) SHARED VOTING POWER -0-
Owned by Each
Reporting 9) SOLE DISPOSITIVE POWER -0-
Person With
10) SHARED DISPOSITIVE POWER -0-
11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-0-
12) CHECK IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
[ ]
13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
-0-
14) TYPE OF REPORTING PERSON (See Instructions)
CO
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ITEM 1. SECURITY AND ISSUER.
This statement relates to the common stock, par value $0.001 per share
("Common Stock") of TriQuint Semiconductor, Inc., a Delaware corporation
("TriQuint"). TriQuint's principal executive offices are located at 2300 N.E.
Brookwood Parkway, Hillsboro, Oregon 97124. On July 2, 1999, TriQuint effected a
3-for-2 stock split. The share amounts contained in this statement have been
adjusted to reflect that stock split.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) None
(b) None
(c) and (e) On July 13, 1999, Lucent converted its warrants to acquire
Common Stock into 193,922 shares of Common Stock. Also on July 13, 1999, Lucent
sold those 193,922 shares of Common Stock, together with an additional 691,588
shares of Common Stock, in an underwritten public offering, for $41.365 per
share. Following completion of the offering on July 19, 1999, Lucent did not
beneficially own any shares of Common Stock.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONS
WITH RESPECT TO SECURITIES OF THE ISSUER.
Lucent sold its shares of Common Stock pursuant to an underwriting
agreement (the "Underwriting Agreement") dated July 13, 1999, by and among
TriQuint, Lucent and SG Cowen Securities Corporation, Donaldson, Lufkin &
Jenrette Securities Corporation, Banc of America Securities LLC, CIBC World
Markets Corp., Dain Rauscher Wessels, a division of Dain Rauscher Incorporated
and U.S. Bancorp Piper Jaffray Inc. The Underwriting Agreement contained
representations, warranties, conditions, covenants and indemnities customarily
found in similar underwritten public offerings.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
A copy of the Underwriting Agreement is filed as Exhibit 99.1 to this
Statement.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: July 21, 1999
Lucent Technologies Inc.
By: /s/ Pamela F. Craven
Pamela F. Craven
Vice President - Law and Secretary
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EXHIBIT 99.1
3,865,000
TRIQUINT SEMICONDUCTOR, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
July 13, 1999
SG COWEN SECURITIES CORPORATION
Donaldson, Lufkin & Jenrette Securities Corporation
Banc of America Securities LLC
CIBC World Markets Corp.
Dain Rauscher Wessels,
a division of Dain Rauscher Incorporated
U.S. Bancorp Piper Jaffray Inc.
c/o SG Cowen Securities Corporation
One Financial Square, 27th Floor
New York, New York 10005
Dear Sirs:
1. INTRODUCTORY. TriQuint Semiconductor, Inc., a Delaware corporation
(the "Company"), and the selling stockholder named in Schedule B hereto (the
"Selling Stockholder") propose to sell, pursuant to the terms of this Agreement,
to the several underwriters named in Schedule A hereto (the "Underwriters," or,
each, an "Underwriter"), an aggregate of 3,865,000 shares of Common Stock, $.001
par value (the "Common Stock") of the Company. The aggregate of 3,865,000 shares
so proposed to be sold is hereinafter referred to as the "Firm Stock." The
Company also proposes to sell to the Underwriters, upon the terms and conditions
set forth in Section 4 hereof, up to an additional 579,750 shares of Common
Stock (the "Optional Stock"). The Firm Stock and the Optional Stock are
hereinafter collectively referred to as the "Stock."
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-81245) (the
"Initial Registration Statement") in respect of the Stock has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto but including
all documents incorporated by reference in the prospectus contained therein, to
you for each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any, increasing
the size of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the
"Securities Act") and the rules and regulations (the "Rules and Regulations") of
the Commission thereunder, which became effective upon filing, no other document
with respect
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to the Initial Registration Statement or document incorporated by reference
therein has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement, if
any, has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a) of
the Rules and Regulations, is hereinafter called a "Preliminary Prospectus");
the various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and including (i)
the information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Securities Act and deemed by virtue
of Rule 430A under the Securities Act to be part of the Initial Registration
Statement at the time it was declared effective and (ii) the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement at the time such part of the Initial Registration
Statement became effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statements"; and such final
prospectus, in the form first filed pursuant to Rule 424(b) under the Securities
Act, is hereinafter called the "Prospectus"; and any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or supplement to
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to any amendment
to the Registration Statements shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Initial Registration Statement that
is incorporated by reference in the Registration Statements. No document has
been or will be prepared or distributed in reliance on Rule 434 under the
Securities Act. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission.
(b) The Registration Statement conforms (and the Rule 462(b)
Registration Statement, if any, the Prospectus and any amendments or supplements
to either of the Registration Statements or the Prospectus, when they become
effective or are filed with the Commission, as the case may be, will conform) in
all material respects to the requirements of the Securities Act and the Rules
and Regulations and do not and will not, as of the applicable effective date (as
to the Registration Statements and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or supplement
thereto) contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the foregoing representations
and warranties shall not apply to information contained in or omitted from the
Registration Statements or the Prospectus or any such amendment or supplement
thereto in reliance upon, and in conformity with, written information furnished
to the Company through the Underwriters by or on behalf of any Underwriter
specifically for inclusion therein or through or by the Selling Stockholder
specifically for inclusion therein.
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(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus, when
such documents become effective or filed with Commission, as the case may be,
will conform in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(d) The Company and each of its subsidiaries (as defined in Section 15)
have been duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing as foreign corporations
in each jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification, and have
all power and authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged, except where the failure to
so qualify or have such power or authority would not have, singularly or in the
aggregate, a material adverse effect on the condition (financial or otherwise),
results of operations, business or prospects of the Company and its subsidiaries
taken as a whole (a "Material Adverse Effect"). The Company owns or controls,
directly or indirectly, only the following corporations, associations or other
entities: TriQuint Semiconductor GmbH and TriQuint Semiconductor Texas, Inc.
(e) This Agreement has been duly authorized executed and delivered by
the Company and constitutes a valid and binding obligation of the Company in
accordance with its terms.
(f) The Stock to be issued and sold by the Company to the Underwriters
hereunder has been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued,
fully paid and nonassessable and free of any preemptive or similar rights and
will conform to the description thereof contained in the Prospectus.
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company,
including the Stock, have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof contained in the
Prospectus.
(h) All the outstanding shares of capital stock of each subsidiary of
the Company have been duly authorized and validly issued, are fully paid and
nonassessable and, except to the extent set forth in the Prospectus, are owned
by the Company directly or indirectly through one or more wholly owned
subsidiaries, free and clear of any claim, lien, encumbrance, security interest,
restriction upon voting or transfer or any other claim of any third party.
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(i) The Company has full legal right, power and authority to enter into
this Agreement and perform the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by the Company and the consummation
of the transactions contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the provisions of the
charter or bylaws of the Company or any of its subsidiaries or any statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets.
(j) Except for the registration of the Stock under the Securities Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Stock by the Underwriters,
no consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company and the consummation
of the transactions contemplated hereby.
(k) KPMG Peat Marwick LLP, who have expressed their opinions on the
audited financial statements and related schedules included or incorporated by
reference in the Registration Statements and the Prospectus are independent
public accountants as required by the Securities Act and the Rules and
Regulations.
(l) The financial statements, together with the related notes and
schedules, included or incorporation by reference in the Prospectus and in each
Registration Statement fairly present the financial position and the results of
operations and changes in financial position of the Company and its consolidated
subsidiaries at the respective dates or for the respective periods therein
specified. Such statements and related notes and schedules have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis except as may be set forth in the Prospectus.
(m) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since such date, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the business, general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated in
the Prospectus.
(n) Except as set forth in the Prospectus, there is no legal or
governmental proceeding pending to which the Company or any of its subsidiaries
is a party or of which any property or
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assets of the Company or any of its subsidiaries is the subject which,
singularly or in the aggregate, if determined adversely to the Company or any of
its subsidiaries, might have a Material Adverse Effect or would prevent or
adversely affect the ability of the Company to perform its obligations under
this Agreement; and to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(o) Neither the Company nor any of its subsidiaries (i) is in violation
of its charter or bylaws, (ii) is in default in any respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or to
which any of its property or assets is subject or (iii) is in violation in any
respect of any law, ordinance, governmental rule, regulation or court decree to
which it or its property or assets may be subject except any violations or
defaults which, singularly or in the aggregate, would not have a Material
Adverse Effect.
(p) The Company and each of its subsidiaries possess all licenses,
certificates, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate state, federal or foreign
regulatory agencies or bodies which are necessary or desirable for the ownership
of their respective properties or the conduct of their respective businesses as
described in the Prospectus except where any failures to possess or make the
same, singularly or in the aggregate, would not have a Material Adverse Effect,
and the Company has not received notification of any revocation or modification
of any such license, authorization or permit and has no reason to believe that
any such license, certificate, authorization or permit will not be renewed.
(q) Neither the Company nor any of its subsidiaries is or, after giving
effect to the offering of the Stock and the application of the proceeds thereof
as described in the Prospectus will become an "investment company" within the
meaning of the Investment Company Act of 1940, as amended and the rules and
regulations of the Commission thereunder.
(r) Neither the Company nor any of its officers, directors or
affiliates has taken or will take, directly or indirectly, any action designed
or intended to stabilize or manipulate the price of any security of the Company,
or which caused or resulted in, or which might in the future reasonably be
expected to cause or result in, stabilization or manipulation of the price of
any security of the Company.
(s) The Company and its subsidiaries own or possess the right to use
all patents, trademarks, trademark registrations, service marks, service mark
registrations, trade names, copyrights, licenses, inventions, trade secrets and
rights described in the Prospectus as being owned by them for the conduct of
their respective businesses, and the Company is not aware of any claim to the
contrary or any challenge by any other person to the rights of the Company and
its subsidiaries with respect to the foregoing. The Company's business as now
conducted and as proposed to be conducted does not and will not infringe or
conflict with any patents, trademarks, service marks, trade names, copyrights,
trade secrets, licenses or other intellectual property or franchise right of any
person. Except as described in the Prospectus, no claim has been made against
the Company alleging the infringement by the Company of any patent, trademark,
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service mark, trade name, copyright, trade secret, license in or other
intellectual property right or franchise right of any person except for such
claims as would, singularly or in the aggregate, not have a Material Adverse
Effect.
(t) The Company and each of its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use, all
items of real or personal property which are material to the business of the
Company and its subsidiaries taken as a whole, in each case free and clear of
all liens, encumbrances, claims and defects that may result in a Material
Adverse Effect.
(u) No labor disturbance by the employees of the Company or any of its
subsidiaries exists or, to the best of the Company's knowledge, is imminent
which might be expected to have a Material Adverse Effect. The Company is not
aware that any key employee or significant group of employees of the Company or
any subsidiary plans to terminate employment with the Company or any such
subsidiary.
(v) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section 4975
of the Internal Revenue Code of 1986, as amended from time to time (the "Code"))
or "accumulated funding deficiency" (as defined in Section 302 of ERISA) or any
of the events set forth in Section 4043(b) of ERISA (other than events with
respect to which the 30-day notice requirement under Section 4043 of ERISA has
been waived) has occurred with respect to any employee benefit plan which could
have a Material Adverse Effect; each employee benefit plan is in compliance in
all material respects with applicable law, including ERISA and the Code; the
Company has not incurred and does not expect to incur liability under Title IV
of ERISA with respect to the termination of, or withdrawal from, any "pension
plan"; and each "pension plan" (as defined in ERISA) for which the Company would
have any liability that is intended to be qualified under Section 401(a) of the
Code is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which could cause the loss of such
qualification.
(w) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission, or other release of any kind of toxic
or other wastes or other hazardous substances by, due to, or caused by the
Company or any of its subsidiaries (or, to the best of the Company's knowledge,
any other entity for whose acts or omissions the Company or any of its
subsidiaries is or may be liable) upon any of the property now or previously
owned or leased by the Company or any of its subsidiaries, or upon any other
property, in violation of any statute or any ordinance, rule, regulation, order,
judgment, decree or permit or which would, under any statute or any ordinance,
rule (including rule of common law), regulation, order, judgment, decree or
permit, give rise to any liability, except for any violation or liability which
would not have, singularly or in the aggregate with all such violations and
liabilities, a Material Adverse Effect; there has been no disposal, discharge,
emission or other release of any kind onto such property or into the environment
surrounding such property of any toxic or other wastes or other hazardous
substances with respect to which the Company or any of its subsidiaries have
knowledge, except for any such disposal, discharge, emission, or other release
of any kind which would not have, singularly or in the aggregate with all such
discharges and other releases, a Material Adverse Effect.
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(x) The Company and its subsidiaries each (i) have filed with all
necessary federal, state and foreign income and franchise tax returns, (ii) have
paid all federal sate, local and foreign taxes due and payable for which it is
liable, and (iii) do not have any tax deficiency or claims outstanding or
assessed or, to the best of the Company's knowledge, proposed against it which
could reasonably be expected to have a Material Adverse Effect.
(y) The Company and each of its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the conduct
of their respective businesses and the value of their respective properties and
as is customary for companies engaged in similar businesses in similar
industries.
(z) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(aa) The minute books of the Company and each of its subsidiaries have
been made available to the Underwriters and counsel for the Underwriters, and
such books (i) contain a complete summary of all meetings and actions of the
directors and stockholders of the Company and each of its subsidiaries since the
time of its respective incorporation through the date of the latest meeting and
action, and (ii) accurately in all material respects reflect all transactions
referred to in such minutes.
(bb) There is no franchise, lease, contract, agreement or document
required by the Securities Act or by the Rules and Regulations to be described
in the Prospectus or to be filed as an exhibit to the Registration Statements
which is not described or filed therein as required; and all descriptions of any
such franchises, leases, contracts, agreements or documents contained in the
Registration Statements are accurate and complete descriptions of such documents
in all material respects.
(cc) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders, customers or
suppliers of the Company on the other hand, which is required to be described in
the Prospectus and which is not so described.
(dd) No person or entity has the right to require registration of
shares of Common Stock or other securities of the Company because of the filing
or effectiveness of the Registration Statements or otherwise, except for the
Selling Stockholder and except for persons and entities who have expressly
waived such right or who have been given proper notice and have failed to
exercise such right within the time or times required under the terms and
conditions of such right.
(ee) Neither the Company nor any of its subsidiaries own any "margin
securities" as that term is defined in Regulations G and U of the Board of
Governors of the Federal Reserve
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System (the "Federal Reserve Board"), and none of the proceeds of the sale of
the Stock will be used, directly or indirectly, for the purpose of purchasing or
carrying any margin security, for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any margin
security or for any other purpose which might cause any of the Securities to be
considered a "purpose credit" within the meanings of Regulation G, T, U or X of
the Federal Reserve Board.
(ff) Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person that would give rise to a
valid claim against the Company or the Underwriters for a brokerage commission,
finder's fee or like payment in connection with the offering and sale of the
Stock.
(gg) No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in the
Prospectus has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(hh) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to which the
business or operations of the Company or any of its subsidiaries will be
affected by the Year 2000 Problem. As a result of such review, the Company has
no reason to believe, and does not believe, that the Year 2000 Problem will have
a Material Adverse Effect. The "Year 2000 Problem" as used herein means any
significant risk that computer hardware or software used in the receipt,
transmission, processing, manipulation, storage, retrieval, retransmission or
other utilization of data or in the operation of mechanical or electrical
systems of any kind will not, in the case of dates or time periods occurring
after December 31, 1999, function at least as effectively as in the case of
dates or time periods occurring prior to January 1, 2000.
(ii) The Stock is listed on the NASDAQ Stock Market's National Market.
3. REPRESENTATIONS AND WARRANTIES AND AGREEMENTS OF THE SELLING
STOCKHOLDER. The Selling Stockholder represents and warrants to, and agrees
with, the Underwriters that the Selling Stockholder:
(a) Has, and immediately prior to the First Closing Date (as defined in
Section 4 hereof) the Selling Stockholder will have, good and valid title to the
shares of Stock to be sold by the Selling Stockholder hereunder on such date,
free and clear of all liens, encumbrances, equities or claims, other than any
created under the Custody Agreement or the Power of Attorney (each as defined in
Section 3(c)); and upon delivery of such shares and payment therefor pursuant
hereto, good and valid title to such shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the Underwriters, assuming the
underwriters acquire such shares of Stock in good faith and without notice of
any adverse claims.
(b) Has duly executed and delivered a power of attorney, which is
irrevocable prior to July 31, 1999 (the "Power of Attorney"), appointing Steven
J. Sharp and Edward C.V. Winn, and each of them, as attorneys-in-fact (the
"Attorneys-in-fact") with authority to execute and deliver this Agreement on
behalf of the Selling Stockholder, to authorize the delivery of the shares of
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Stock to be sold by the Selling Stockholder hereunder and take certain other
actions on behalf of the Selling Stockholder in connection with the transactions
contemplated by this Agreement.
(c) Has duly executed and delivered a custody agreement (the "Custody
Agreement") with Chase Mellon Shareholder Services LLC as custodian (the
"Custodian"), pursuant to which the Custodian will hold the shares of Stock to
be sold by the Selling Stockholder hereunder for delivery under this Agreement.
(d) Has full right, power and authority to enter into this Agreement,
the Power of Attorney and the Custody Agreement; the execution, delivery and
performance of this Agreement, the Power of Attorney and the Custody Agreement
by the Selling Stockholder and the consummation by the Selling Stockholder of
the transactions contemplated hereby and thereby will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound or to which any of the
property or assets of the Selling Stockholder is subject, nor will such actions
result in any violation of the provisions of the charter or bylaws of the
Selling Stockholder or, to the best of the Selling Stockholder's knowledge, any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Selling Stockholder or the property or assets
of the Selling Stockholder; and, except for the registration of the Stock under
the Securities Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under the Exchange Act and applicable state
securities laws in connection with the purchase and distribution of the Stock by
the Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is required for
the execution, delivery and performance of this Agreement, the Power of Attorney
or the Custody Agreement by the Selling Stockholder and the consummation by the
Selling Stockholder of the transactions contemplated hereby and thereby.
(e) The Registration Statements do not, and the Prospectus and any
further amendments or supplements to the Registration Statements or the
Prospectus will not, as of the applicable effective date (as to the Registration
Statements and any amendment thereto) and as of the applicable filing date (as
to the Prospectus and any amendment or supplement thereto) contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading. The
preceding sentence applies only to the extent that any information contained in
or omitted from the Registration Statements or Prospectus was in reliance upon
and in conformity with written information furnished to the Company by such
Selling Stockholder specifically for inclusion therein.
4. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and the Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and the Selling Stockholder, that number of shares of Firm Stock (rounded up or
down, as determined by SG Cowen in its discretion, in order to avoid fractions)
obtained by multiplying 2,979,490 shares of Firm Stock in the case of the
Company and the number of shares of Firm Stock set forth opposite the name of
the Selling Stockholder in Schedule B hereto, in the case of the Selling
Stockholder, in each case by a fraction the
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<PAGE> 10
numerator of which is the number of shares of Firm Stock set forth opposite the
name of such Underwriter in Schedule A hereto and the denominator of which is
the total number of shares of Firm Stock.
The purchase price per share to be paid by the Underwriters to the
Company and the Selling Stockholder for the Stock will be $41.365 per share (the
"Purchase Price").
The Company and the Selling Stockholder will deliver the Firm Stock to
the Underwriters for the respective accounts of the several Underwriters (in the
form of definitive certificates, issued in such names and in such denominations
as the Underwriters may direct by notice in writing to the Company given at or
prior to 12:00 Noon, New York time, on the second full business day preceding
the First Closing Date (as defined below) against payment of the aggregate
Purchase Price therefor, by wire transfer in Federal (same day) funds to an
account at a bank acceptable to SG Cowen, payable to the order of the Company
and Chase Mellon Shareholder Services LLC as Custodian for the Selling
Stockholder, all at the offices of Wilson Sonsini Goodrich & Rosati, 650 Page
Mill Road, Palo Alto, California. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligations of each Underwriter hereunder. The time and date of the
delivery and closing shall be at 10:00 a.m., New York time, on July 19, 1999, in
accordance with Rule 15c6-1 of the Exchange Act. The time and date of such
payment and delivery are herein referred to as the "First Closing Date." The
First Closing Date and the location of delivery of, and the form of payment for,
the Firm Stock may be varied by agreement among the Company, the Selling
Stockholder and SG Cowen.
The Company and the Custodian shall make the certificates for the Stock
available to the Underwriters for examination on behalf of the Underwriters in
New York, New York at least twenty-four hours prior to the First Closing Date.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Stock as contemplated by the Prospectus, the
Underwriters may purchase all or less than all of the Optional Stock. The price
per share to be paid for the Optional Stock shall be the Purchase Price. The
Company agrees to sell to the Underwriters the number of shares of Optional
Stock specified in the written notice by SG Cowen described below and the
Underwriters agree, severally and not jointly, to purchase such shares of
Optional Stock for the account of each Underwriter in the same proportion as the
number of shares of Firm Stock set forth opposite such Underwriter's name bears
to the total number of shares of Firm Stock (subject to adjustment by SG Cowen
to eliminate fractions). The option granted hereby may be exercised as to all or
any part of the Optional Stock at any time, and from time to time, not more than
thirty (30) days subsequent to the date of this Agreement. No Optional Stock
shall be sold and delivered unless the Firm Stock previously has been, or
simultaneously is, sold and delivered. The right to purchase the Optional Stock
or any portion thereof may be surrendered and terminated at any time upon notice
by SG Cowen to the Company.
The option granted hereby may be exercised by written notice being
given to the Company by SG Cowen setting forth the number of shares of the
Optional Stock to be purchased by the Underwriters and the date and time for
delivery of and payment for the Optional Stock. Each date and time for delivery
of and payment for the Optional Stock (which may be the First
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<PAGE> 11
Closing Date, but not earlier) is herein called the "Option Closing Date" and
shall in no event be earlier than two (2) business days nor later than five (5)
business days after written notice is given. (The Option Closing Date and the
First Closing Date are herein called the "Closing Dates.")
The Company will deliver the Optional Stock to the Underwriters (in the
form of definitive certificates, issued in such names and in such denominations
as the Underwriters may direct by notice in writing to the Company given at or
prior to 12:00 Noon, New York time, on the second full business day preceding
the Option Closing Date against payment of the aggregate Purchase Price therefor
in federal (same day) funds by certified or official bank check or checks or
wire transfer to an account at a bank acceptable to SG Cowen payable to the
order of the Company all at the offices of SG Cowen. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligations of each Underwriter hereunder. The
Company shall make the certificates for the Optional Stock available to the
Underwriters for examination on behalf of the Underwriters in New York, New York
not later than 10:00 a.m., New York Time, on the business day preceding the
Option Closing Date. The Option Closing Date and the location of delivery of,
and the form of payment for, the Optional Stock may be varied by agreement
between the Company and SG Cowen.
The several Underwriters propose to offer the Stock for sale upon the
terms and conditions set forth in the Prospectus.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters that:
(a) The Company will prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Underwriters and file such Rule 462(b)
Registration Statement with the Commission on the date hereof; prepare the
Prospectus in a form approved by the Underwriters and file such Prospectus
pursuant to Rule 424(b) under the Securities Act not later than the second
business day following the execution and delivery of this Agreement by 9:00 a.m.
New York City time, if the determination of the pubic offering price occurred
before 12:00 noon New York City time on the date of execution of this Agreement,
or by 6:00 p.m. New York City time if such determination occurred later; make no
further amendment or any supplement to the Registration Statements or to the
Prospectus prior to the Option Closing Date to which the Underwriters shall
reasonably object by notice to the Company after a reasonable period to review;
advise the Underwriters, promptly after it receives notice thereof, of the time
when any amendment to either Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Underwriters with copies thereof; file promptly all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus is required in connection with the offering or sale
of the Stock; advise the Underwriters, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Stock for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the
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<PAGE> 12
Registration Statements or the Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or suspending
any such qualification, use promptly its best efforts to obtain its withdrawal.
(b) If at any time prior to the expiration of nine months after the
effective date of the Initial Registration Statement when a prospectus relating
to the Stock is required to be delivered any event occurs as a result of which
the Prospectus as then amended or supplemented would include any untrue
statement of a material fact, or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
or to file under the Exchange Act any document incorporated by reference in the
Prospectus to comply with the Securities Act or the Exchange Act, the Company
will promptly notify the Underwriters thereof and upon their request will
prepare an amended or supplemented Prospectus or make an appropriate filing
pursuant to Section 13 or 14 of the Exchange Act which will correct such
statement or omission or effect such compliance. The Company will furnish
without charge to each Underwriter and to any dealer in securities as many
copies as the Underwriters may from time to time reasonably request of such
amended or supplemented Prospectus; and in case any Underwriter is required to
deliver a prospectus relating to the Stock nine months or more after the
effective date of the Initial Registration Statement, the Company upon the
request of the Underwriters and at the expense of such Underwriter will prepare
promptly an amended or supplemented Prospectus as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Securities Act.
(c) To furnish promptly to each of the Underwriters and to counsel for
the Underwriters a signed copy of each of the Registration Statements as
originally filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith.
(d) To deliver promptly to the Underwriters in New York City such
number of the following documents as the Underwriters shall reasonably request:
(i) conformed copies of the Registration Statements as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits), (ii)
each Preliminary Prospectus, (iii) the Prospectus (not later than 10:00 a.m.,
New York time, of the business day following the execution and delivery of this
Agreement) and any amended or supplemented Prospectus (not later than 10:00
a.m., New York City time, on the business day following the date of such
amendment or supplement) and (iv) any document incorporated by reference in the
Prospectus (excluding exhibits thereto).
(e) To make generally available to its stockholders as soon as
practicable, but in any event not later than 18 months after the effective date
of the Registration Statement (as defined in Rule 158(c) under the Securities
Act), an earnings statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158).
(f) The Company will promptly take from time to time such actions as
the Underwriters may reasonably request to qualify the Stock for offering and
sale under the securities or Blue Sky laws of such jurisdictions as the
Underwriters may designate and to continue such
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<PAGE> 13
qualifications in effect for so long as required for the distribution of the
Stock; provided that the Company and its subsidiaries shall not be obligated to
qualify as foreign corporations in any jurisdiction in which they are not so
qualified or to file a general consent to service of process in any
jurisdiction;
(g) During the period of five years from the date hereof, the Company
will deliver to the Underwriters and, upon request, to each of the other
Underwriters, (i) as soon as they are available, copies of all reports or other
communications furnished to stockholders and (i) as soon as they are available,
copies of any reports and financial statements furnished or filed with the
Commission pursuant to the Exchange Act or any national securities exchange or
automatic quotation system on which the Stock is listed or quoted.
(h) The Company will not directly or indirectly offer, sell, assign,
transfer, pledge, contract to sell, or otherwise dispose of any shares of Common
Stock or securities convertible into or exercisable or exchangeable for Common
Stock for a period of 90 days from the date of the Prospectus without the prior
written consent of SG Cowen other than the Company's sale of the Stock hereunder
and the issuance of shares pursuant to employee benefit plans, qualified stock
option plans or other employee compensation plans existing on the date hereof or
pursuant to currently outstanding options, warrants or rights, except as
otherwise contemplated in such letter. The Company will cause each officer,
director and stockholder listed in Schedule C to furnish to the Underwriters,
prior to the First Closing Date, a letter, substantially in the form of Exhibit
I hereto, pursuant to which each such person shall agree not to directly or
indirectly offer, sell, assign, transfer, pledge, contract to sell, or otherwise
dispose of any shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock for a period of 90 days from the
date of the Prospectus, without the prior written consent of SG Cowen, except as
otherwise contemplated in such letter.
(i) The Company will supply the Underwriters with copies of all
correspondence to and from, and all documents issued to and by, the Commission
in connection with the registration of the Stock under the Securities Act.
(j) Prior to each of the Closing Dates the Company will furnish to the
Underwriters, as soon as they have been prepared, copies of any unaudited
interim consolidated financial statements of the Company for any periods
subsequent to the periods covered by the financial statements appearing in the
Registration Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any
press release or other communication directly or indirectly or hold any press
conference with respect to the Company, its condition, financial or otherwise,
or earnings, business affairs or business prospects (except for routine oral
marketing communications in the ordinary course of business and consistent with
the past practices of the Company and of which the Underwriters are notified),
without the prior written consent of the Underwriters, unless in the judgment of
the Company and its counsel, and after notification to the Underwriters, such
press release or communication is required by law.
(l) In connection with the offering of the Stock, until SG Cowen shall
have notified the Company of the completion of the resale of the Stock, the
Company will not, and will cause
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<PAGE> 14
its affiliated purchasers (as defined in Regulation M under the Exchange Act)
not to, either alone or with one or more other persons, bid for or purchase, for
any account in which it or any of its affiliated purchasers has a beneficial
interest, any Stock, or attempt to induce any person to purchase any Stock; and
not to, and to cause its affiliated purchasers not to, make bids or purchase for
the purpose of creating actual, or apparent, active trading in or of raising the
price of the Stock.
(m) The Company will not take any action prior to the Option Closing
Date which would require the Prospectus to be amended or supplemented pursuant
to Section 4(b);
(n) The Company will apply the net proceeds from the sale of the Stock
as set forth in the Prospectus under the heading "Use of Proceeds."
6. FURTHER AGREEMENTS OF THE SELLING STOCKHOLDER. The Selling
Stockholder agrees with the several Underwriters that:
(a) The shares of Stock represented by the certificates held in custody
under the Custody Agreement are for the benefit of and coupled with and subject
to the interests of the Underwriters and the Selling Stockholder, and that the
arrangement for such custody and the appointment of the Attorneys-in-fact are
irrevocable to the extent provided therein; that the obligations of such Selling
Stockholder hereunder shall not be terminated by operation of law, whether by
the liquidation or distribution of the Selling Stockholder, or any other event,
that if the Selling Stockholder is liquidated or dissolved or any other event
occurs, before the delivery of the Stock to be sold by the Selling Stockholder
hereunder, certificates for the Firm Stock to be sold by the Selling Stockholder
shall be delivered on behalf of such Selling Stockholder in accordance with the
terms and conditions of this Agreement and the Custody Agreement, and action
taken by the Attorneys-in-fact or any of them under the Power of Attorney shall
be as valid as if such liquidation or dissolution or other event had not
occurred, whether or not the Custodian, the Attorneys-in-fact or any of them
shall have notice of such liquidation or dissolution or other event.
(b) It will deliver to SG Cowen on or prior to the First Closing Date a
properly completed and executed United States Treasury Department Form W-8 (if
the Selling Stockholder is a non-United States person) or Form W-9 (if the
Selling Stockholder is a United States person) or such other applicable form or
statement specified by Treasury Department regulations in lieu thereof.
7. PAYMENT OF EXPENSES. The Company agrees with the Underwriter to pay
(a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Stock and any taxes payable in that connection; (b) the costs
incident to the Registration of the Stock under the Securities Act; (c) the
costs incident to the preparation, printing and distribution of the Registration
Statement, Preliminary Prospectus, Prospectus any amendments and exhibits
thereto or any document incorporated by reference therein the costs of printing,
reproducing and distributing the Power of Attorney, the Custody Agreement, the
"Agreement Among Underwriters" between the Underwriters and the Underwriters,
the Master Selected Dealers' Agreement, the Underwriters' Questionnaire and this
Agreement by mail, telex or other means of communications; (d) the fees and
expenses (including related fees and expenses of counsel for the Underwriters)
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<PAGE> 15
incurred in connection with filings made with the National Association of
Securities Dealers; (e) any applicable listing or other fees; (f) the fees and
expenses of qualifying the Stock under the securities laws of the several
jurisdictions as provided in Section 5(f) and of preparing, printing and
distributing Blue Sky Memoranda and Legal Investment Surveys (including related
fees and expenses of counsel to the Underwriters); (g) all fees and expenses of
the registrar and transfer agent of the Stock; and (h) all other costs and
expenses incident to the performance of the obligations of the Company and of
the Selling Stockholder under this Agreement (including, without limitation, the
fees and expenses of the Company's counsel and the Company's independent
accountants); provided that, except as otherwise provided in this Section 7 and
in Section 10, the Underwriters shall pay their own costs and expenses,
including the fees and expenses of their counsel, any transfer taxes on the
Stock which they may sell and the expenses of advertising any offering of the
Stock made by the Underwriters.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations
of the several Underwriters hereunder are subject to the accuracy, when made and
on each of the Closing Dates, of the representations and warranties of the
Company and the Selling Stockholder contained herein, to the accuracy of the
statements of the Company and the Selling Stockholder made in any certificates
pursuant to the provisions hereof, to the performance by the Company and the
Selling Stockholder of their obligations hereunder, and to each of the following
additional terms and conditions:
(a) No stop order suspending the effectiveness of either the
Registration Statements shall have been issued and no proceedings for that
purpose shall have been initiated or threatened by the Commission, and any
request for additional information on the part of the Commission (to be included
in the Registration Statements or the Prospectus or otherwise) shall have been
complied with to the reasonable satisfaction of the Underwriters. The Rule
462(b) Registration Statement, if any, and the Prospectus shall have been timely
filed with the Commission in accordance with Section 5(a).
(b) None of the Underwriters shall have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue statement
of a fact which, in the opinion of counsel for the Underwriters, is material or
omits to state any fact which, in the opinion of such counsel, is material and
is required to be stated therein or is necessary to make the statements therein
not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of this Agreement, the Custody
Agreements, the Powers of Attorney, the Stock, the Registration Statement and
the Prospectus and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Company and the
Selling Stockholder shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters.
(d) Wilson Sonsini Goodrich & Rosati, P.C. shall have furnished to the
Underwriters such counsel's written opinion, as counsel to the Company,
addressed to the Underwriters and
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<PAGE> 16
dated the Closing Date, in form and substance reasonably satisfactory to the
Underwriters, to the effect that:
(i) The Company and TriQuint Semiconductor Texas, Inc. have
been duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good
standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power
and authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged, except where the
failure to so qualify or have such power or authority would not have,
singularly or in the aggregate, a Material Adverse Effect.
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company, including the Stock being delivered on the Closing Date, have
been duly and validly authorized and issued, to such counsel's
knowledge, are fully paid and non-assessable and conform to the
description thereof contained or incorporated by reference in the
Prospectus.
(iii) All the outstanding shares of capital stock of TriQuint
Semiconductor Texas, Inc. have been duly authorized and validly issued,
are fully paid and nonassessable and, except to the extent set forth in
the Prospectus, are owned by the Company directly, free and clear of
any claim, lien, encumbrance, security interest, restriction upon
voting or transfer or any other claim of any third party.
(iv) Except as disclosed in or contemplated by the Prospectus,
to such counsel's knowledge, there are no outstanding options, warrants
or other rights calling for the issuance of, and no commitments, plans
or arrangements to issue, any shares of capital stock of the Company or
any security convertible into or exchangeable for capital stock of the
Company. There are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any
shares of the Stock pursuant to the Company's charter or bylaws or any
agreement or other instrument known to such counsel.
(v) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known to
such counsel to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which
any of the properties or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any violation
of the Charter or bylaws of the Company or of any of its subsidiaries
or any statute or any order, rule or regulation of any court or
governmental agency or body or court having
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<PAGE> 17
jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets.
(vi) The Company has full corporate right, power and authority
to enter into this Agreement and to sell and deliver the Common Shares
to be sold by it to the several Underwriters; this Agreement has been
duly and validly authorized by all necessary corporate action by the
Company, has been duly and validly executed and delivered by and on
behalf of the Company, and is a valid and binding agreement of the
Company in accordance with its terms, except as enforceability may be
limited by general equitable principles, bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights
generally and except with respect to those provisions relating to
indemnity or contribution for liabilities arising under the Act as to
which no opinion need be expressed; and no approval, authorization,
order, consent, registration, filing, qualification, license or permit
of or with any court, regulatory, administrative or other governmental
body is required for the execution and delivery of this Agreement by
the Company or the consummation of the transactions contemplated by
this Agreement, except such as have been obtained and are in full force
and effect under the Act and such as may be required under applicable
Blue Sky laws in connection with the purchase and distribution of the
Common Stock by the Underwriters and the clearance of such offering
with NASD.
(vii) The description in the Registration Statement and
Prospectus of statutes, legal or governmental proceedings and contracts
and other documents are accurate in all material respects; and to the
best of such counsel's knowledge, there are no statutes, legal or
governmental proceedings, contracts or other documents of a character
required to be described in the Registration Statement or Prospectus or
to be filed as exhibits to the Registration Statement which are not
described or filed as required.
(viii) To the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries (i) is in violation of its charter
or bylaws or (ii) is in default, and no event has occurred, which, with
notice or lapse of time or both, would constitute a default, in the due
performance or observance of any term, covenant or condition contained
in any agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is except, in the
case of clauses (i) and (ii), for those defaults, violations or
failures which, either individually or in the aggregate, would not have
a Material Adverse Effect.
(ix) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property or asset of the Company or any of its
subsidiaries is the subject which, singularly or in the aggregate, if
determined adversely to the Company or any of its subsidiaries, might
have a Material Adverse Effect or would prevent or adversely affect the
ability of the Company to perform its obligations under this Agreement;
and,
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<PAGE> 18
to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(x) The Registration Statement was declared effective under
the Securities Act as of the date and time specified in such opinion,
the Rule 462(b) Registration Statement, if any, was filed with the
Commission on the date specified therein, the Prospectus was filed with
the Commission pursuant to the subparagraph of Rule 424(b) of the Rules
and Regulations specified in such opinion on the date specified therein
and no stop order suspending the effectiveness of the Registration
Statement has been issued and, to the knowledge of such counsel, no
proceeding for that purpose is pending or threatened by the Commission.
(xi) The Registration Statements, as of the respective
effective dates and the Prospectus, as of its date, and any further
amendments or supplements thereto, as of their respective dates, made
by the Company prior to the Closing Date (other than the financial
statements and other financial data contained therein, as to which such
counsel need express no opinion) complied as to form in all material
respects with the requirements of the Securities Act and the Rules and
Regulations; and the documents incorporated by reference in the
Prospectus and any further amendment or supplement to any such
incorporated document made by the Company prior to the Closing Date
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of
the Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder.
(xii) To the best of such counsel's no person or entity has
the right to require registration of shares of Common Stock or other
securities of the Company because of the filing or effectiveness of the
Registration Statements or otherwise, except for persons and entities
who have expressly waived such right or who have been given proper
notice and have failed to exercise such right within the time or times
required under the terms and conditions of such right.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date, in form and
substance satisfactory to the Underwriters, to the effect that (x) such counsel
has acted as counsel to the Company in connection with the preparation of the
Registration Statements (y) based on such counsel's examination of the
Registration Statements and such counsel's investigations made in connection
with the preparation of the Registration Statements and "conferences with
certain officers and employees of and with auditors for and counsel to the
Company," such counsel has no reason to believe that (i) the Registration
Statements, as of the respective effective dates, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading, or
that the Prospectus contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading or (ii) any document incorporated by reference in the
Prospectus
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<PAGE> 19
or any further amendment or supplement to any such incorporated document made by
the Company prior to the Closing Date, when they became effective or were filed
with the Commission, as the case may be, contained, in the case of a
registration statement which became effective under the Securities Act, any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or, in the case of other documents which were filed
under the Exchange Act with the Commission, any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; it being understood that such counsel need express no opinion as
to the financial statements or other financial data contained in the
Registration Statement or the Prospectus.
The foregoing opinion and statement may be qualified by a statement to
the effect that such counsel has not independently verified the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus and takes no responsibility therefor except to the
extent set forth in the opinion described in clauses (viii) and (ix) above.
(c) Jonathan Gilbert, Esq. shall have furnished to the Underwriters
such counsel's written opinion, as counsel to the Selling Stockholder, addressed
to the Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
(i) The Selling Stockholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and the
Custody Agreement; the execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement by the
Selling Stockholder and the consummation by the Selling Stockholder of
the transactions contemplated hereby and thereby will not conflict with
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which the Selling Stockholder is a party or by which the
Selling Stockholder is bound or to which any of the property or assets
of the Selling Stockholder is subject, nor will such actions result in
any violation of the provisions of the charter or bylaws of the Selling
Stockholder nor, to such counsel's knowledge, will such actions result
in a violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Selling Stockholder or the property or assets of the Selling
Stockholder; and, except for the registration of the Stock under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state securities laws in connection with the
purchase and distribution of the Stock by the Underwriters, to such
counsel's knowledge, no consent, approval, authorization or order of,
or filing or registration with, any such court or governmental agency
or body is required for the execution, delivery and performance of this
Agreement, the Power of Attorney or the Custody Agreement by the
Selling Stockholder and the consummation by the Selling Stockholder of
the transactions contemplated hereby and thereby.
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<PAGE> 20
(ii) This Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Stockholder and constitutes a
valid and binding agreement of the Selling Stockholder, except as
enforceability may be limited by general equitable principles,
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and except with respect to those
provisions relating to indemnity or contribution for liabilities
arising under the Act as to which no opinion need be expressed.
(iii) The Power-of-Attorney and the Custody Agreement have
been duly authorized, executed and delivered by the Selling Stockholder
and constitute valid and binding agreements of the Selling Stockholder.
(iv) Upon payment for, and delivery of, the shares of Stock to
be sold by the Selling Stockholder under this Agreement in accordance
with the terms hereof, good and valid title to such shares, free and
clear of all liens, encumbrances, equities or claims will pass to the
Underwriters (assuming the Underwriters acquire such shares of Stock in
good faith and without notice of any adverse claims).
(f) An opinion of Skjerven, Morrill, MacPherson, Franklin & Friel,
patent counsel for the Company, dated the First Closing Date, or the Second
Closing Date, as the case may be, to the effect that:
(i) The Company is listed in the records of the U.S. Patent
and Trademark Office as the holder of trademarks set forth in a
schedule to such opinion. Such counsel knows of no claims of third
parties to any ownership interest or lien with respect to any of such
patents, patent applications or trademarks;
(ii) To the best of such counsel's knowledge, the Company owns
47 active U.S. patents, two issued foreign patents, 14 pending U.S.
patent applications, eight pending foreign patent applications, two
U.S. trademark registrations and five foreign trademark registrations.
(iii) Such counsel is not aware of any material defects of
form in the preparation or filing of patent applications or trademark
applications on behalf of the Company;
(iv) Such counsel (A) is not aware of any pending or
threatened action, suit, proceeding or claim by others that the Company
is infringing or otherwise violating any patents, trademarks or trade
secrets, and (B) is not aware of any pending or threatened action,
suit, proceeding, or claim by others challenging the validity or scope
of the patent applications or the patents or trademarks held by or
licensed to the Company; and
(v) According to such counsel's records, the Company is listed
or is in the process of being listed in the records of the appropriate
foreign office as the sole holder of record of the foreign patent
applications and foreign trademark
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<PAGE> 21
applications set forth in a schedule of such opinion. Such counsel has
no actual knowledge of any claims of third parties to any ownership
interest or lien with respect to any patents or patent applications or
trademarks or any trademark applications, and has not been advised that
any pending foreign patent applications or pending foreign trademark
applications have been rejected. Such opinion and knowledge may be
based upon inquiry of the foreign patent and trademark attorneys
engaged to prepare, file and prosecute such patents, patent
applications, trademarks and trademark applications.
Such counsel shall also state that they have participated in telephone
conferences with employees of the Company (that counsel are informed have
primary responsibility for the Company's patents, patent applications,
trademarks, trademark applications and other intellectual property) in which the
Company's patents, patent applications, trademarks, trademark applications and
the contents of the statements in the Prospectus under the captions "Risk
Factors - Our business may be harmed if we fail to protect our proprietary
technology" and "Risk Factors - Our ability to produce our semiconductors may
suffer if someone claims we infringe on their intellectual property"
(collectively, the "Intellectual Property Portion") were discussed, and,
although such counsel is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement (except to the extent stated in this subparagraph (f)),
on the basis of such conferences and such representation of the Company, and to
the best of such counsel's knowledge, the Intellectual Property Portion, insofar
as it constitutes a summary of the Company's patents and patent applications and
trademarks and trademark applications, is in all material respects an accurate
summary of, and fairly summarizes in all material respects the legal matters,
documents and proceedings relating to, the patents, patent applications,
trademarks and trademark application as described therein, and nothing has come
to the attention of such counsel which leads them to believe that the
Intellectual Property Portion of the Registration Statement, as of the time the
Registration Statement became effective under the Act, and such portion of the
Prospectus or any amendment or supplement thereto, on the date such Prospectus,
amendment or supplement thereto was filed pursuant to Rule 424(b), and such
portion of the Registration Statement and the Prospectus, or any amendment or
supplement thereto, as of the Closing Date or the Option Closing Date, as the
case may be, contains an untrue statement of a material fact or omits to state a
material fact required to be misleading. With respect to such statement,
Skjerven, Morrill, MacPherson, Franklin & Friel may state that their belief is
based upon the procedures set forth therein, but is without independent check
and verification not referred to therein.
(g) The Underwriters shall have received from Pillsbury Madison & Sutro
LLP counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to such matters as the Underwriters may reasonably require,
and the Company and the Selling Stockholder shall have furnished to such counsel
such documents as they request for enabling them to pass upon such matters.
(h) At the time of the execution of this Agreement, the Underwriters
shall have received from KPMG Peat Marwick LLP a letter, addressed to the
Underwriters and dated such date, in form and substance satisfactory to the
Underwriters (i) confirming that they are independent certified public
accountants with respect to the Company and its subsidiaries within the meaning
of the Securities Act and the Rules and Regulations and (ii) stating the
conclusions
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<PAGE> 22
and findings of such firm with respect to the financial statements and certain
financial information contained or incorporated by reference in the Prospectus.
(i) On the Closing Date, the Underwriters shall have received a letter
(the "bring-down letter") from KPMG Peat Marwick LLP addressed to the
Underwriters and dated the Closing Date confirming, as of the date of the
bring-down letter (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is given
in the Prospectus as of a date not more than three business days prior to the
date of the bring-down letter), the conclusions and findings of such firm with
respect to the financial information and other matters covered by its letter
delivered to the Underwriters concurrently with the execution of this Agreement
pursuant to Section 6(g).
(j) The Company shall have furnished to the Underwriters a certificate,
dated the Closing Date, of its Chairman of the Board, its President or a Vice
President and its chief financial officer stating that (i) such officers have
carefully examined the Registration Statements and the Prospectus and, in their
opinion, the Registration Statements as of their respective effective dates and
the Prospectus, as of each such effective date, did not include any untrue
statement of a material fact and did not omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
(ii) since the effective date of the Initial Registration Statement no event has
occurred which should have been set forth in a supplement or amendment to the
Registration Statements or the Prospectus, (iii) to the best of their knowledge
after reasonable investigation, as of the Closing Date, the representations and
warranties of the Company in this Agreement are true and correct and the Company
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, and (iv)
subsequent to the date of the most recent financial statements included or
incorporated by reference in the Prospectus, there has been no material adverse
change in the financial position or results of operation of the Company and its
subsidiaries, or any change, or any development including a prospective change,
in or affecting the condition (financial or otherwise), results of operations,
business or prospects of the Company and its subsidiaries taken as a whole,
except as set forth in the Prospectus.
(k) The Selling Stockholder shall have furnished to the Underwriters on
the Closing Date a certificate, dated the such date, signed by, or on behalf of,
the Selling Stockholder stating that the representations and warranties of the
Selling Stockholder contained herein are true and correct as of the Closing Date
and that the Selling Stockholder has complied with all agreements contained
herein to be performed by the Selling Stockholder at or prior to the Closing
Date.
(l) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus (ii)
since such date there shall not have been any change in the capital stock other
than the issuance of common stock upon the exercise of stock options or under
the 1998 Employee Stock Purchase Plan or as described in the Registration
Statement, or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting the
business, general affairs, management, financial position, stockholders' equity
or results of
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<PAGE> 23
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case described
in clause (i) or (ii), is, in the judgment of the Underwriters, so material and
adverse as to make it impracticable or inadvisable to proceed with the sale or
delivery of the Stock on the terms and in the manner contemplated in the
Prospectus.
(m) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency or
body which would, as of the Closing Date, prevent the issuance or sale of the
Stock; and no injunction, restraining order or order of any other nature by any
federal or state court of competent jurisdiction shall have been issued as of
the Closing Date which would prevent the issuance or sale of the Stock.
(n) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review (other than an announcement
with positive implications of a possible upgrading), its rating of any of the
Company's debt securities.
(o) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment of
the Underwriters, impracticable or inadvisable to proceed with the sale or
delivery of the Stock on the terms and in the manner contemplated in the
Prospectus.
(p) The National Market System shall have approved the Stock for
inclusion, subject only to official notice of issuance.
(q) SG Cowen shall have received the written agreements, substantially
in the form of Exhibit I hereto, of the officers, directors and stockholders of
the Company listed in Schedule C to this Agreement.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
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<PAGE> 24
9. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Underwriter, its
officers, employees, Underwriters and agents and each person, if any, who
controls any Underwriter within the meaning of the Securities Act (collectively
the "Underwriter Indemnified Parties" and, each an "Underwriter Indemnified
Party") against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which that Underwriter Indemnified Party may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Prospectus, either of the Registration Statements or the Prospectus
or in any amendment or supplement thereto or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, either of the Registration
Statements or the Prospectus or in any amendment or supplement thereto a
material fact required to be stated therein or necessary to make the statements
therein not misleading or (iii) any act or failure to act, or any alleged act or
failure to act, by any Underwriter in connection with, or relating in any manner
to, the Stock or the offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, damage, liability or action arising
out of or based upon matters covered by clause (i) or (ii) above, (provided that
the Company shall not be liable in the case of any matter covered by this clause
(iii) to the extent that it is determined in a final judgement by a court of
competent jurisdiction that such loss, claim, damage, liability or action
resulted directly from any such act or failure to act undertaken or omitted to
be taken by such Underwriter through its gross negligence or willful misconduct)
and shall reimburse each Underwriter Indemnified Party promptly upon demand for
any legal or other expenses reasonably incurred by that Underwriter Indemnified
Party in connection with investigating or preparing to defend or defending
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of or is based
upon (i) an untrue statement or alleged untrue statement in or omission or
alleged omission from the Preliminary Prospectus, either of the Registration
Statements or the Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company through
the Underwriters by or on behalf of any Underwriter specifically for use
therein, which information the parties hereto agree is limited to the
Underwriter's Information (as defined in Section 18); provided, further however,
that the foregoing indemnification agreement with respect to the Preliminary
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such loss, claim, damage or liability purchased Securities,
or any officers, employees, Underwriters, agents or controlling persons of such
Underwriter, if (i) a copy of the Prospectus (as then amended or supplemented)
was required by law to be delivered to such person at or prior to the written
confirmation of the sale of Securities to such person, (ii) a copy of the
Prospectus (as then amended or supplemented) excluding documents incorporated by
reference therein was not sent or given to such person by or on behalf of such
Underwriter and such failure was not due to non-compliance by the Company with
Section 5(d), and (iii) the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such loss, claim, damage or liability. This
indemnity agreement is not exclusive and will be in addition to any liability
which the Company might otherwise have and shall not limit any rights or
remedies which may otherwise be available at law or in equity to each
Underwriter Indemnified Party.
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<PAGE> 25
(b) The Selling Stockholder shall indemnify and hold harmless each
Underwriter Indemnified Party, against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which that Underwriter
Indemnified may become subject, under the Securities Act or otherwise, insofar
as such loss, claim, damage, liability or action arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Prospectus, either of the Registration Statements
or the Prospectus or in any amendment or supplement thereto or (ii) the omission
or alleged omission to state in the Preliminary Prospectus, either of the
Registration Statements or the Prospectus or in any amendment or supplement
thereto a material fact required to be stated therein or necessary to make the
statements therein not misleading but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company through the Underwriters by or on behalf of the Selling Stockholder
specifically for inclusion therein, and shall reimburse each Underwriter
Indemnified Party promptly upon demand for any legal or other expenses
reasonably incurred by that Underwriter Indemnified Party in connection with
investigating or preparing to defend or defending against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, the liability of the
Selling Stockholder under this Section 9 shall be limited to the net proceeds
received by the Selling Stockholder.
(c) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company its officers, employees, Underwriters and agents, each
of its directors and each person, if any, who controls the Company within the
meaning of the Securities Act (collectively the "Company Indemnified Parties"
and each a "Company Indemnified Party") and the Selling Stockholder, its
officers, employees, Underwriters and agents and each person, if any, who
controls the Selling Stockholder within the meaning of the Securities Act
(collectively, the "Stockholder Indemnified Parties" and each a "Stockholder
Indemnified Party"), against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company Indemnified
Parties or the Selling Stockholder Indemnified Parties may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Prospectus,
either of the Registration Statements or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company through the Underwriters by or on behalf of that Underwriter
specifically for use therein, and shall reimburse the Company Indemnified
Parties and the Selling Stockholder Indemnified Parties for any legal or other
expenses reasonably incurred by such parties in connection with investigating or
preparing to defend or defending against or appearing as third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided that the parties hereto hereby agree that such
written information provided by the Underwriters consists solely of the
Underwriter's Information as defined in Section 18 hereof. This indemnity
agreement is not exclusive and will be in addition to any liability which the
Underwriters might otherwise have and shall not limit any rights or remedies
which may otherwise be available at law or in equity to the Company Indemnified
Parties and Selling Stockholder Indemnified Parties.
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<PAGE> 26
(d) Promptly after receipt by an indemnified party under this Section 9
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 9 except to the extent it has been materially
prejudiced by such failure; and, provided, further, that the failure to notify
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under this Section 9. If any such claim
or action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by SG Cowen, if the
indemnified parties under this Section 9 consist of any Underwriter Indemnified
Party, or by the Company if the indemnified parties under this Section 9 consist
of any Company Indemnified Parties or by the Selling Stockholder if the
indemnified parties under this Section 9 consist of any Stockholder Indemnified
Parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 9(a), 9(b) and 9(c), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. Subject to the provisions of Section 9(f) below, no indemnifying party
shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(e) If at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party
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<PAGE> 27
agrees that it shall be liable for any settlement of the nature contemplated by
this Section 9 effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
request for reimbursement, (ii) such indemnifying party shall have received
notice of the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of such
settlement.
(f) If the indemnification provided for in this Section 9 is
unavailable or insufficient to hold harmless an indemnified party under Section
9(a), 9(b) or 9(c), then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company, the Selling Stockholder
and the Underwriters from the offering of the Stock or if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, the Selling
Stockholder and the Underwriters with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company, the Selling Stockholder and the Underwriters
with respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Stock purchased under this
Agreement (before deducting expenses) received by the Company and the Selling
Stockholder bear to the total underwriting discounts and commissions received by
the Underwriters with respect to the Stock purchased under this Agreement from
the Company or the Selling Stockholder, as applicable, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Stockholder or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission; provided that the parties hereto agree that the
written information furnished to the Company through the Underwriters by or on
behalf of the Underwriters for use in any Preliminary Prospectus, either of the
Registration Statements or the Prospectus consists solely of the Underwriter's
Information. The Company, the Selling Stockholder and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 9(f) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 9(f) shall be deemed to include, for purposes
of this Section 9(f), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 9 (f), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Stock underwritten by it and distributed to the public
were offered to the public less the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of
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<PAGE> 28
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute as provided in this Section
9(f) are several in proportion to their respective underwriting obligations and
not joint.
10. TERMINATION. The obligations of the Underwriters hereunder may be
terminated by SG Cowen, in its absolute discretion by notice given to and
received by the Company prior to delivery of and payment for the Firm Stock if,
prior to that time, any of the events described in Sections 8(l), 8(m), 8(n) or
8(o) have occurred or if the Underwriters shall decline to purchase the Stock
for any reason permitted under this Agreement.
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) this Agreement
shall have been terminated pursuant to Sections 10 or 12, (b) the Company or the
Selling Stockholder shall fail to tender the Stock for delivery to the
Underwriters for any reason permitted under this Agreement, or (c) the
Underwriters shall decline to purchase the Stock for any reason permitted under
this Agreement, the Company shall reimburse the Underwriters for the fees and
expenses of their counsel and for such other out-of-pocket expenses as shall
have been reasonably incurred by them in connection with this Agreement and the
proposed purchase of the Stock, and upon demand the Company shall pay the full
amount thereof to the SG Cowen. If this Agreement is terminated pursuant to
Section 12 by reason of the default of one or more Underwriters, neither the
Company nor the Selling Stockholder shall be obligated to reimburse any
defaulting Underwriter on account of those expenses.
12. SUBSTITUTION OF UNDERWRITERS. If any Underwriter or Underwriters
shall default in its or their obligations to purchase shares of Stock hereunder
and the aggregate number of shares which such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed ten percent (10%) of
the total number of shares underwritten, the other Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the shares which such defaulting Underwriter or Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters shall so default and the
aggregate number of shares with respect to which such default or defaults occur
is more than ten percent (10%) of the total number of shares underwritten and
arrangements satisfactory to the Underwriters and the Company for the purchase
of such shares by other persons are not made within forty-eight (48) hours after
such default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the shares of Stock of a defaulting
Underwriter or Underwriters as provided in this Section 12, (i) the Company and
the Selling Stockholder shall have the right to postpone the Closing Dates for a
period of not more than five (5) full business days in order that the Company
and the Selling Stockholder may effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees promptly to file any
amendments to the Registration Statement or supplements to the Prospectus which
may thereby be made necessary, and (ii) the respective numbers of shares to be
purchased by the remaining Underwriters or substituted Underwriters shall be
taken as the basis of their underwriting obligation for all purposes of this
Agreement. Nothing herein contained shall relieve any defaulting Underwriter of
its liability to
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<PAGE> 29
the Company, the Selling Stockholder or the other Underwriters for damages
occasioned by its default hereunder. Any termination of this Agreement pursuant
to this Section 12 shall be without liability on the part of any non-defaulting
Underwriter, the Selling Stockholder or the Company, except expenses to be paid
or reimbursed pursuant to Sections 7 and 11 and except the provisions of Section
9 shall not terminate and shall remain in effect.
13. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This
Agreement shall inure to the benefit of and be binding upon the several
Underwriters, the Company and the Selling Stockholder and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person other than the persons mentioned in the
preceding sentence any legal or equitable right, remedy or claim under or in
respect of this Agreement, or any provisions herein contained, this Agreement
and all conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of such persons and for the benefit of no other
person; except that the representations, warranties, covenants, agreements and
indemnities of the Company and the Selling Stockholder contained in this
Agreement shall also be for the benefit of the Underwriter Indemnified Parties,
and the indemnities of the several Underwriters shall also be for the benefit of
the Company Indemnified Parties and the Selling Stockholder Indemnified Parties.
14. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The
respective indemnities, covenants, agreements, representations, warranties and
other statements of the Company, the Selling Stockholder and the several
Underwriters, as set forth in this Agreement or made by them respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter, the Selling
Stockholder, the Company or any person controlling any of them and shall survive
delivery of and payment for the Stock.
15. NOTICES. All statements, requests, notices and agreements hereunder
shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to SG Cowen Securities Corporation, 4 Embarcadero
Center, San Francisco, California 94111, Attention: Ken Rivera (Fax: (415)
646-7352);
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to TriQuint Semiconductor, Inc., 2300 NE Brookwood
Parkway, Hillsboro, Oregon 97124, Attention: Steven J. Sharp; (Fax: (503)
615-8901);
(c) if to the Selling Stockholder, shall be delivered or sent by mail
or facsimile transmission to the Selling Stockholder at the address set forth on
Schedule B hereto;
provided, however, that any notice to an Underwriter pursuant to Section 9 shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Underwriters, which address will be supplied to any other party hereto by the
Underwriters upon request. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof.
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<PAGE> 30
16. DEFINITION OF CERTAIN TERMS. For purposes of this Agreement, (a)
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading and (b) "subsidiary" has the meaning set forth in Rule 405 of the
Rules and Regulations.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
18. UNDERWRITERS' INFORMATION. The parties hereto acknowledge and agree
that, for all purposes of this Agreement, the Underwriters' Information consists
solely of the following information in the Prospectus: (i) the last two
paragraphs on the front cover page concerning the terms of the offering by the
Underwriters; and (ii) the statements concerning the Underwriters contained in
the first, third and seventh paragraphs under the heading "Underwriting."
19. AUTHORITY OF THE UNDERWRITERS. In connection with this Agreement,
you will act for and on behalf of the several Underwriters, and any action taken
under this Agreement by the Underwriters, will be binding on all the
Underwriters and any taken under this Agreement by any of the Attorneys-in-fact
will be binding on the Selling Stockholder.
20. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.
21. GENERAL. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. In this Agreement, the masculine, feminine and neuter
genders and the singular and the plural include one another. The section
headings in this Agreement are for the convenience of the parties only and will
not affect the construction or interpretation of this Agreement. This Agreement
may be amended or modified, and the observance of any term of this Agreement may
be waived, only by a writing signed by the Company, the Selling Stockholder and
the Underwriters.
22. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Any person executing and delivering this Agreement as Attorney-in-fact
for the Selling Stockholder represents by so doing that he or she has been duly
appointed as Attorney-in-fact by such Selling Stockholder pursuant to a validly
existing and binding Power of Attorney which authorizes such Attorney-in-fact to
take such action.
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<PAGE> 31
If the foregoing is in accordance with your understanding of the
agreement between the Company, the Selling Stockholder and the several
Underwriters, kindly indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
TRIQUINT SEMICONDUCTOR, INC.
By
-----------------------------------------
Name
---------------------------------------
Title
--------------------------------------
LUCENT TECHNOLOGIES INC.
By
-----------------------------------------
Attorney-in-fact acting on
behalf of the Selling
Stockholder listed in Schedule B
Accepted as of the date first above written:
SG COWEN SECURITIES CORPORATION
Donaldson, Lufkin & Jenrette Securities Corporation
Banc of America Securities LLC
CIBC World Markets Corp.
Dain Rauscher Wessels,
a division of Dain Rauscher Incorporated
U.S. Bancorp Piper Jaffray Inc.
By SG COWEN SECURITIES CORPORATION
By
-----------------------------------------
Name
---------------------------------------
Title
--------------------------------------
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<PAGE> 32
SCHEDULE A
<TABLE>
<CAPTION>
Number of Optional
Number of Firm Shares to Shares (if any) to be
Name be Purchased Purchased
- ------------------------------------------ ------------------------ ---------------------
<S> <C> <C>
SG Cowen Securities Corporation 1,468,700 220,305
Donaldson, Lufkin & Jenrette Securities
Corporation 541,100 81,165
Banc of America Securities LLC 463,800 69,570
CIBC World Markets Corp. 463,800 69,570
Dain Rauscher Wessels,
a division of Dain Rauscher Incorporated 463,800 69,570
U.S. Bancorp Piper Jaffray Inc. 463,800 69,570
--------- ---------
TOTAL 3,865,000 579,750
</TABLE>
A-1
<PAGE> 33
SCHEDULE B
<TABLE>
<CAPTION>
Number of Firm Number of Optional
Selling Stockholder Shares to be Sold Shares to be Sold
------------------- ----------------- ------------------
<S> <C> <C>
Lucent Technologies Inc. 885,510 None
600 Mountain Avenue
Murray Hill, New Jersey 07974
Attn: Jonathan Gilbert
(Fax: (908) 582-2209)
TOTAL
</TABLE>
B-1
<PAGE> 34
SCHEDULE C
LIST OF STOCKHOLDERS SUBJECT TO SECTION 4(h)
Steven J. Sharp
Edward C.V. Winn
Charles Scott Gibson
Bruce Fournier
Walden Rhines
J. David Pye
Edward F. Tuck
Thomas V. Cordner
Paul A. Gary
C-1
