def14a
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
(Amendment No. __)
Filed by the Registrant þ
Filed by a Party other than the Registrant o
Check appropriate box:
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Preliminary Proxy Statement |
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Confidential, For Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
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Definitive Proxy Statement |
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Definitive Additional Materials |
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Soliciting Material under Rule 14a-12 |
AGERE SYSTEMS INC.
(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment of filing fee (Check the appropriate box):
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No fee required. |
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
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(1) Title of each class of securities to which transaction applies: |
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(2) Aggregate number of securities to which transaction applies: |
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(3) Per unit price or other underlying value of transaction computed pursuant to Exchange
Act Rule 0-11 (Set forth the amount on which the filing fee is calculated and state how it
was determined): |
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(4) Proposed maximum aggregate value of transaction: |
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(5) Total fee paid: |
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Fee paid previously with preliminary materials: |
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Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the
offsetting fee was paid previously. Identify the previous filing
by registration statement number, or the form or schedule and the
date of its filing. |
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(1) Amount Previously Paid: |
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(2) Form, Schedule or Registration Statement No.: |
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(3) Filing Party: |
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(4) Date Filed: |
MERGER PROPOSED YOUR
VOTE IS VERY IMPORTANT
The boards of directors of each of LSI Logic Corporation and
Agere Systems Inc. have approved the merger of Agere with a
wholly owned subsidiary of LSI. If the proposed merger is
completed, Agere stockholders will receive 2.16 shares of
LSI common stock for each share of Agere common stock they own
at the completion of the merger.
Based on the number of shares of LSI and Agere common stock
outstanding on January 31, 2007, Agere stockholders are
expected to hold approximately 48% of the fully diluted shares
of LSI common stock following the completion of the merger. LSI
stockholders will continue to own their existing shares, which
will not be adjusted by the merger.
LSI common stock trades on the New York Stock Exchange under the
symbol LSI. As of February 2, 2007, the last
trading day before the date of this joint proxy
statement/prospectus, the last reported sales price of
LSI common stock at the end of regular trading hours, as
reported on the New York Stock Exchange, was $9.28.
LSI and Agere cannot complete the merger unless LSI stockholders
approve the issuance of shares of LSI common stock in the
merger and Agere stockholders adopt the merger agreement. The
obligations of LSI and Agere to complete the merger are also
subject to the satisfaction or waiver of several other
conditions to the merger. More information about LSI, Agere and
the merger is contained in this joint proxy
statement/prospectus. We encourage you to read carefully this
joint proxy statement/prospectus before voting, including the
section entitled Risk Factors beginning on
page 14.
The LSI board of directors recommends that LSI stockholders
vote FOR the proposal to approve the issuance of
shares of LSI common stock in the merger. The Agere board of
directors recommends that Agere stockholders vote
FOR the proposal to adopt the merger agreement.
The proposals are being presented to the respective stockholders
of each company at their special or annual meetings. The dates,
times and places of the meetings are as follows:
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For LSI stockholders:
March 29, 2007 at 10:00 a.m., local time, at
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For Agere stockholders:
March 29, 2007 at 9:00 a.m., local time, at
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1621 Barber Lane, Milpitas,
California
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The Edward Nash Theater
Raritan Valley Community College
Route 28W and Lamington Road
North Branch, New Jersey 08876
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Your vote is very important. Whether or not you plan to
attend your respective companys meeting, please take the
time to vote by completing and returning the enclosed proxy card
to your respective company or, if the option is available to
you, by granting your proxy electronically over the Internet or
by telephone. If your shares are held in street
name, you must instruct your broker in order to vote.
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Sincerely,
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Abhijit Y. Talwalkar
President and Chief Executive Officer
LSI Logic Corporation
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Richard L. Clemmer
President and Chief Executive Officer
Agere Systems Inc.
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None of the Securities and Exchange Commission, any state
securities regulator or any regulatory authority has approved or
disapproved of these transactions or the securities to be issued
under this joint proxy statement/prospectus or determined if the
disclosure in this joint proxy statement/prospectus is accurate
or adequate. Any representation to the contrary is a criminal
offense.
This joint proxy statement/prospectus is dated February 5,
2007, and is first being mailed to stockholders of
LSI and Agere on or about February 8, 2007.
LSI Logic Corporation
1621 Barber Lane
Milpitas, California 95035
(408) 433-8000
NOTICE OF SPECIAL MEETING OF
LSI STOCKHOLDERS
To the Stockholders of LSI Logic Corporation:
NOTICE IS HEREBY GIVEN that a Special Meeting of Stockholders of
LSI Logic Corporation, a Delaware corporation, will be held on
March 29, 2007, at 10:00 a.m., local time,
at 1621 Barber Lane, Milpitas, California to consider
and vote upon a proposal to approve the issuance of shares of
LSI Logic Corporation common stock in connection with a merger
of Atlas Acquisition Corp. with and into Agere Systems Inc.
contemplated by the Agreement and Plan of Merger among LSI,
Atlas Acquisition Corp. and Agere.
Any action on the item of business described above may be
considered at the special meeting at the time and on the date
specified above or at any time and date to which the special
meeting may be properly adjourned or postponed.
After careful consideration, the LSI board of directors
unanimously determined that the merger agreement and the
transactions contemplated by the merger agreement are advisable
and in the best interests of the LSI stockholders and has
unanimously approved the merger agreement. The LSI board of
directors recommends that the LSI stockholders vote
FOR the proposal to approve the issuance of shares
of LSI common stock in connection with the merger.
You are entitled to vote only if you were a holder of LSI common
stock at the close of business on February 2, 2007.
You are entitled to attend the special meeting only if you were
an LSI stockholder or joint holder as of the close of business
on February 2, 2007 or hold a valid proxy for the special
meeting.
The special meeting will begin promptly at 10:00 a.m.,
local time. Check-in will begin at 9:30 a.m., local time,
and you should allow ample time for the check-in procedures.
Your vote is very important. Whether or not you plan to
attend the special meeting, we encourage you to read the joint
proxy statement/prospectus and submit your proxy or voting
instructions for the special meeting as soon as possible. You
may submit your proxy or voting instructions for the special
meeting by completing, signing, dating and returning the proxy
card or voting instruction card in the pre-addressed envelope
provided. For specific instructions on how to vote your shares,
please refer to the section entitled The Special Meeting
of LSI Stockholders beginning on page 27 of the joint
proxy statement/prospectus.
By Order of the Board of Directors,
ANDREW S. HUGHES
Vice President, General Counsel and Corporate Secretary
February 5, 2007
Milpitas, California
Agere Systems Inc.
1110 American Parkway NE
Allentown, Pennsylvania 18109
(610) 712-1000
NOTICE OF ANNUAL MEETING OF
AGERE STOCKHOLDERS
Agere Systems Inc. will hold its Annual Meeting of Stockholders
at the Edward Nash Theater at the Raritan Valley Community
College, Route 28W and Lamington Road, North Branch, New
Jersey 08876, on March 29, 2007, 9:00 a.m., local
time. We are holding the meeting for the following purposes:
1. To consider and vote on the proposal to adopt the
Agreement and Plan of Merger, dated as of December 3, 2006
(which we refer to as the merger agreement), by and among Agere,
LSI Logic Corporation and Atlas Acquisition Corp.;
2. To elect three members of the Agere board of directors
for terms described in the joint proxy statement/prospectus;
3. To re-approve the Agere Short Term Incentive Plan;
4. To ratify the Audit Committees selection of
PricewaterhouseCoopers LLP as Ageres independent
registered public accounting firm for fiscal 2007; and
5. To transact such other business as may properly come
before the meeting and any postponement or adjournment thereof.
The Agere board of directors has approved the merger
agreement and the transactions contemplated by the merger
agreement by unanimous vote of the directors present, and
recommends that you vote FOR the proposal to adopt
the merger agreement, which is described in detail in the joint
proxy statement/prospectus. The Agere board of
directors also recommends that you vote FOR each of
the director nominees of Agere listed in this joint proxy
statement/prospectus, FOR the re-approval of
Ageres Short Term Incentive Plan and FOR the
ratification of the selection of PricewaterhouseCoopers LLP as
Ageres independent registered public accounting firm for
fiscal 2007.
Holders of record of Agere common stock at the close of business
on February 2, 2007, are entitled to vote at the meeting. A
list of stockholders eligible to vote at the Agere annual
meeting will be available for inspection at the annual meeting
and at the offices of Agere in Allentown, Pennsylvania during
regular business hours for a period of no less than ten days
prior to the annual meeting.
In addition to the joint proxy statement/prospectus, proxy card
and voting instructions, Agere stockholders are receiving a copy
of the Agere 2006 annual report on
Form 10-K.
You can vote your shares by completing and returning a proxy
card. Most stockholders can also vote over the Internet or by
telephone. If Internet and telephone voting are available to
you, you can find voting instructions in the materials
accompanying the joint proxy statement/prospectus. You can
revoke a proxy at any time prior to its exercise at the meeting
by following the instructions in the enclosed joint proxy
statement/prospectus.
By Order of the Board of Directors,
JEAN F. RANKIN
Executive Vice President, General
Counsel and Secretary
February 5, 2007
Allentown, Pennsylvania
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This joint proxy statement/prospectus incorporates important
business and financial information about LSI and Agere from
documents that each company has filed with the Securities and
Exchange Commission but that have not been included in or
delivered with this joint proxy statement/prospectus. For a
listing of documents incorporated by reference into this joint
proxy statement/prospectus, please see the section entitled
Where You Can Find More Information beginning on
page 134 of this joint proxy statement/prospectus.
LSI will provide you with copies of this information relating
to LSI, without charge, upon written or oral request to:
LSI Logic
Corporation
1621 Barber Lane
Milpitas, California 95035
Attention: Investor Relations
Telephone Number:
1-800-433-8778
In addition, you may obtain copies of this information by
making a request through LSIs investor relations by
sending an
e-mail to
investorrelations@lsi.com.
Agere will provide you with copies of this information
relating to Agere, without charge, upon written or oral request
to:
Agere Systems Inc.
1110 American Parkway NE
Allentown, Pennsylvania 18109
Attention: Investor Relations
Telephone Number:
1-800-372-2477
In addition, you may obtain copies of this information by
making a request through Ageres investor relations by
sending an
e-mail to
investor@agere.com.
In order for you to receive timely delivery of the documents
in advance of the LSI special meeting, LSI should receive your
request no later than March 22, 2007.
In order for you to receive timely delivery of the documents
in advance of the Agere annual meeting, Agere should receive
your request no later than March 22, 2007.
iv
QUESTIONS
AND ANSWERS ABOUT THE MERGER
General
Questions and Answers
The following questions and answers briefly address some
commonly asked questions about the LSI special meeting, the
Agere annual meeting and the merger. They may not include all
the information that is important to stockholders of LSI and
Agere. Agere and LSI urge stockholders to read carefully this
entire joint proxy statement/prospectus, including the annexes
and the other documents referred to herein. Page references are
included in this summary to direct you to more detailed
discussions elsewhere in this joint proxy statement/prospectus.
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Why am I receiving this joint proxy
statement/prospectus? |
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LSI and Agere have agreed to combine their businesses under the
terms of a merger agreement that is described in this joint
proxy statement/prospectus. A copy of the merger agreement is
attached to this joint proxy statement/prospectus as
Annex A. |
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In order to complete the merger, LSI stockholders must approve
the issuance of shares of LSI common stock in connection with
the merger and Agere stockholders must adopt the merger
agreement. LSI will hold a special meeting of its stockholders
and Agere will hold an annual meeting of its stockholders to
obtain these approvals. Agere is also asking its stockholders to
approve other matters in connection with its annual meeting that
are described in this joint proxy statement/prospectus. This
joint proxy statement/prospectus contains important information
about the merger and the stockholder meetings of each of LSI and
Agere, and you should read it carefully. For LSI stockholders,
the enclosed voting materials for the LSI special meeting allow
LSI stockholders to vote shares of LSI common stock without
attending the LSI special meeting. For Agere stockholders, the
enclosed voting materials for the Agere annual meeting allow
Agere stockholders to vote shares of Agere common stock without
attending the Agere annual meeting. |
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Stockholder votes are important. LSI and Agere encourage
stockholders of each company to vote as soon as possible.
For more specific information on how to vote, please see the
questions and answers for each of the LSI and Agere stockholders
below. |
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Why are LSI and Agere proposing the merger? (see
page 68) |
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After reviewing strategic alternatives to address the
opportunities and challenges facing our companies, the boards of
directors of both LSI and Agere reached the same
conclusion this merger represents the best
strategic alternative for our respective companies. |
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Specifically, LSI and Agere believe the merger will provide
certain strategic and financial benefits, including the
following: |
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An increase in product development capabilities;
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Greater depth of relationships with customers;
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An enhanced intellectual property portfolio; and
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A reduction in operating costs.
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When do LSI and Agere expect to complete the
merger? |
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LSI and Agere currently plan to complete the merger shortly
following the LSI and Agere stockholder meetings. However,
neither LSI nor Agere can predict the exact timing of the
completion of the merger because the merger is subject to
governmental and regulatory review processes and other
conditions. |
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How do the boards of directors of LSI and Agere recommend
that I vote? (see pages 27 and 41) |
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The LSI board of directors recommends that LSI stockholders vote
FOR the proposal to approve the issuance of shares
of LSI common stock in connection with the merger. |
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The Agere board of directors recommends that Agere stockholders
vote FOR the proposal to adopt the merger agreement. |
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What should I do now? |
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Please review this joint proxy statement/prospectus carefully
and vote as soon as possible. Most LSI and Agere stockholders
may vote over the Internet or by telephone. Stockholders may
also vote by signing, dating and returning each proxy card and
voting instruction card received. |
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What should I do if I receive more than one set of voting
materials? (see page 27) |
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Please vote each proxy card and voting instruction card that you
receive. You may receive more than one set of voting materials,
including multiple copies of this joint proxy
statement/prospectus and multiple proxy cards or voting
instruction cards. For example, stockholders who hold shares in
more than one brokerage account will receive a separate voting
instruction card for each brokerage account in which shares are
held. If shares are held in more than one name, stockholders
will receive more than one proxy or voting instruction card. In
addition, if you are a stockholder of both LSI and Agere, you
may receive one or more proxy cards or voting instruction cards
for LSI and one or more proxy cards or voting instruction cards
for Agere. If you are a stockholder of both LSI and Agere,
please note that a vote for the issuance of shares in connection
with the merger for the LSI special meeting will not constitute
a vote for the proposal to adopt the merger agreement for the
Agere annual meeting, and vice versa. Therefore, please vote
each proxy and voting instruction card you receive, whether from
LSI or Agere. |
Questions
and Answers for LSI Stockholders
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When and where is the LSI special meeting? (see
page 27) |
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The special meeting of LSI stockholders will be held at
10:00 a.m., local time, on March 29, 2007, at 1621 Barber
Lane, Milpitas, California. Check-in will begin at
9:30 a.m., local time. Please allow ample time for the
check-in procedures. |
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How can I attend the LSI special meeting? (see
page 27) |
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LSI stockholders or joint holders as of the close of business on
February 2, 2007, and those who hold a valid proxy for the
special meeting are entitled to attend the LSI special meeting.
LSI stockholders should be prepared to present photo
identification for admittance. In addition, names of record
holders will be verified against the list of record holders on
the record date prior to being admitted to the meeting. LSI
stockholders who are not record holders but who hold shares
through a broker or nominee (i.e., in street name), should
provide proof of beneficial ownership on the record date, such
as most recent account statement prior to February 2, 2007, or
other similar evidence of ownership. If LSI stockholders do not
provide photo identification or comply with the other procedures
outlined above upon request, they will not be admitted to the
LSI special meeting. |
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The LSI special meeting will begin promptly at 10:00 a.m.
Check-in will begin at 9:30 a.m., local time, and you
should allow ample time for the check-in procedures. |
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What is the vote of LSI stockholders required to approve
the issuance of shares of LSI common stock in connection with
the merger? (see page 28) |
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The issuance of shares of LSI common stock in connection with
the merger requires an affirmative vote of a majority of the
votes cast at the LSI special meeting, provided that the total
votes cast on the proposal represents over 50% of all shares of
LSI common stock entitled to vote on the proposal. |
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As an LSI stockholder, how can I vote? (see
page 28) |
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Stockholders of record as of the record date may vote in person
by attending the LSI special meeting, by completing and
returning a proxy card or, if you hold your shares in street
name, a voting instruction form. Most stockholders can also vote
over the Internet or by telephone. If Internet and telephone
voting are available, LSI stockholders can find voting
instructions in the materials accompanying this joint proxy
statement/prospectus. |
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The Internet and telephone voting facilities will close at
11:59 p.m., Eastern Time, on March 28, 2007. Please be
aware that LSI stockholders who vote over the Internet may incur
costs such as telephone and Internet access charges for which
they will be responsible. |
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The method by which LSI stockholders vote will in no way limit
the right to vote at the meeting if you later decide to attend
in person. If shares are held in street name, LSI stockholders
must obtain a proxy, executed in their favor, from their broker
or other holder of record, to be able to vote at the meeting. |
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If shares are held through a broker, such shares may be voted
even if holders of such shares do not vote or attend the special
meeting. Broker non-votes, if any, will not be
counted as votes cast on the proposal to issue shares of LSI
common stock in connection with the merger. |
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All shares entitled to vote and represented by properly
completed proxies received prior to the LSI special meeting and
not revoked will be voted at the meeting in accordance with your
instructions. If a signed proxy card is returned without
indicating how shares should be voted on a matter and the proxy
is not revoked, the shares represented by such proxy will be
voted as the LSI board of directors recommends and therefore
FOR the issuance of shares in connection with the
merger. |
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For a more detailed explanation of the voting procedures, please
see the section entitled Voting Procedures beginning
on page 28 of this joint proxy statement/prospectus. |
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As an LSI stockholder, what happens if I do not vote? (see
page 28) |
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Failure to vote or give voting instructions to your broker or
nominee for the LSI special meeting could make it more difficult
to meet the voting requirement that the total votes cast on the
proposal represent over 50% of all shares of LSI common stock
entitled to vote on the proposal. Therefore, LSI urges LSI
stockholders to vote. |
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As an LSI stockholder, may I change my vote after I have
submitted a proxy card or voting instruction card? (see
page 29) |
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Yes. LSI stockholders may revoke a previously granted proxy or
voting instruction at any time prior to the special meeting by: |
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signing and returning a later dated proxy or voting
instruction card for the LSI special meeting; or
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attending the LSI special meeting and voting in
person, as described in the section entitled The Special
Meeting of LSI Stockholders beginning on page 27 of
this joint proxy statement/prospectus.
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Only the last submitted proxy or voting instruction card will be
considered. Please submit a proxy or voting instruction card for
the LSI special meeting as soon as possible. |
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What do LSI stockholders need to do now? |
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Carefully read and consider the information contained in and
incorporated by reference into this joint proxy
statement/prospectus, including its annexes. In order for LSI
shares to be represented at the special meeting, LSI
stockholders can (1) vote through the Internet or by
telephone by following the instructions included on their proxy
card, (2) indicate on the enclosed proxy card how they
would like to vote and return the proxy card in the accompanying
pre-addressed postage paid envelope, or (3) attend the LSI
special meeting in person. |
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Who can answer questions? |
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LSI stockholders with questions about the merger or the other
matters to be voted on at the LSI special meeting or who desire
additional copies of this joint proxy statement/prospectus or
additional proxy cards should contact: |
Georgeson Inc.
17 State Street, 10th Floor
New York, NY 10004
Toll Free:
(866) 783-6820
Banks and Brokerage Firms:
(212) 440-9800
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If you need additional copies of this joint proxy
statement/prospectus or voting materials, contact
Georgeson Inc. as described above or send an
e-mail to
investorrelations@lsi.com. |
Questions
and Answers for Agere Stockholders
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Why are Agere stockholders receiving this joint proxy
statement/prospectus? |
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In order to complete the merger, Agere stockholders must adopt
the merger agreement. |
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This joint proxy statement/prospectus contains important
information about the proposed merger, the merger agreement and
the Agere annual meeting, which should be read carefully. The
enclosed voting materials allow Agere stockholders to vote
shares without attending the Agere annual meeting. The vote of
Agere stockholders is very important. Agere stockholders are
encouraged to vote as soon as possible. |
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What will Agere stockholders receive in the merger? |
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If the proposed merger is completed, at the effective time of
the merger, Agere stockholders will be entitled to receive
2.16 shares of LSI common stock for each share of Agere
common stock that they own. Agere |
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stockholders will receive cash for any fractional shares they
would otherwise receive in the merger. The amount of cash for
fractional shares will be calculated by multiplying the
fractional share interest to which each such stockholder would
be entitled by the per share closing price of shares of LSI
common stock on the trading day immediately preceding the
closing date. Following the completion of the merger, former
Agere stockholders are expected to own approximately 48% of the
fully diluted shares of the combined company based on the number
of shares of LSI and Agere outstanding as of January 31,
2007, excluding shares issuable on conversion of Ageres
outstanding convertible notes. |
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What if I have Agere stock options? |
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Each outstanding option to purchase shares of Agere common
stock, whether or not exercisable, will be converted into an
option to acquire LSI common stock, on the same terms and
conditions as were applicable to such Agere stock option prior
to the effective time of the merger, except that the number of
shares for which such option is or may become exercisable and
the exercise price of the option will be adjusted to reflect the
exchange ratio. |
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What if I have Agere stock appreciation rights? |
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Each outstanding stock appreciation right relating to shares of
Agere common stock, whether or not exercisable, will be
converted into a stock appreciation right relating to shares of
LSI common stock, on the same terms and conditions as were
applicable to such Agere stock appreciation right prior to the
effective time of the merger, except that the number of shares
to which the stock appreciation right relates and the exercise
price of the stock appreciation right will be adjusted to
reflect the exchange ratio. |
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What if I have Agere restricted stock units? |
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Each Agere outstanding restricted stock unit award will be
converted into an award to receive shares of LSI common stock on
the same terms and conditions that were applicable to such Agere
restricted stock unit award prior to the effective time of the
merger, except that the number of shares subject to the award
will be adjusted to reflect the exchange ratio, and, for any
restricted stock unit award which vests upon a specified date if
performance based criteria are achieved, the performance based
criteria shall be waived and the restricted stock unit award
will vest in accordance with its terms and conditions on the
specified date. |
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What are the material United States federal income tax
consequences of the merger to Agere stockholders? |
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The transaction is intended to be a tax-free reorganization for
United States federal income tax purposes. If the merger
qualifies as a reorganization, Agere stockholders will not
recognize any gain or loss, for federal income tax purposes,
with respect to the shares of LSI common stock they receive in
the merger. However, Ageres stockholders will recognize
gain or loss on any fractional shares of LSI common stock for
which cash is received in lieu of a fractional share. |
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Are Agere stockholders entitled to dissenters
rights? |
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No. Under the Delaware General Corporation Law, holders of
Agere common stock are not entitled to dissenters
appraisal rights in connection with the merger. |
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What matters will Agere stockholders vote on at the annual
meeting? |
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Agere stockholders will vote on the following proposals: |
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To adopt the merger agreement;
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To elect three directors to serve until the next
annual meeting of stockholders and until their successors are
elected and qualified or until the consummation of the merger;
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To re-approve the Agere Short Term Incentive Plan;
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To ratify the audit committees selection of
PricewaterhouseCoopers LLP as Ageres independent
registered public accounting firm for fiscal 2007; and |
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To transact such other business as may properly come
before the annual meeting.
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How does the Agere board of directors recommend that Agere
stockholders vote? |
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The Agere board of directors, by the unanimous vote of the
directors present, has determined that the merger agreement and
the transactions contemplated by the merger agreement are
advisable and in the best interests of the Agere stockholders
and recommends that Agere stockholders vote FOR the
proposal to adopt the merger |
viii
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agreement. For a more complete description of the recommendation
of the Agere board of directors, see The
Merger Consideration of the Merger by the Agere
Board of Directors Recommendation of the Agere Board
of Directors. |
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The Agere board of directors also recommends that Agere
stockholders vote FOR each of the director nominees
listed under the heading Election of Agere
Directors, FOR the re-approval of Ageres
Short Term Incentive Plan and FOR the ratification
of the selection of PricewaterhouseCoopers LLP as Ageres
independent registered public accounting firm for fiscal 2007 at
the annual meeting. |
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Q: |
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When and where will the Agere annual meeting be
held? |
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The annual meeting is scheduled to be held at the Edward Nash
Theater at the Raritan Valley Community College, Route 28W
and Lamington Road, North Branch, New Jersey 08876, on
March 29, 2007, at 9:00 a.m., local time. |
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What vote is needed to adopt the merger agreement and to
approve the other matters at the annual meeting? |
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A: |
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The proposal to adopt the merger agreement requires the
affirmative vote of the holders of at least a majority of the
shares of Agere common stock outstanding on the record date. |
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Re-approval of the Agere Short Term Incentive Plan and
ratification of the selection of PricewaterhouseCoopers LLP as
Ageres independent registered public accounting firm for
fiscal 2007 each requires the affirmative vote of the holders of
a majority of the Agere common stock present in person or
represented by proxy and entitled to vote at the annual meeting.
Directors will be elected by a plurality of the votes cast. |
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How do Agere stockholders vote? |
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If you were an Agere stockholder on the record date for the
Agere annual meeting, you may vote at the meeting. Most
stockholders can vote over the Internet or by telephone. If
Internet and telephone voting are available to you, you can find
voting instructions in the materials accompanying this joint
proxy statement/prospectus. You can also vote by completing and
returning a proxy card or, if you hold your shares in street
name, a voting instruction form. |
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The Internet and telephone voting facilities will close at
11:59 p.m., Eastern Daylight Time, on March 28, 2007.
Please be aware that Agere stockholders who vote over the
Internet may incur costs such as telephone and Internet access
charges for which they will be responsible. Voting instructions
from participants in Ageres 401(k) plan must be received
by 11:59 p.m., Eastern Daylight Time, on March 26,
2007. |
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The method by which Agere stockholders vote will in no way limit
their right to vote at the meeting if such stockholders later
decide to attend in person. If shares are held in street name,
Agere stockholders must obtain a proxy, executed in their favor,
from a broker or other holder of record, to be able to vote at
the meeting. |
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If shares are held through a broker, such shares may be voted
even if the Agere stockholder does not vote or attend the annual
meeting. Under the rules of the New York Stock Exchange, member
brokers who do not receive instructions from beneficial owners
will be allowed to vote on the election of directors, the
proposal to re-approve the Short Term Incentive Plan
and the proposal to ratify the audit committees
selection of PricewaterhouseCoopers LLP as Ageres
independent registered public accounting firm for fiscal 2007.
Broker non-votes, if any, will have the same effect
as votes cast against the proposal to adopt the merger agreement. |
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If you hold shares through Ageres 401(k) plan and do not
vote, those shares will be voted in the same proportion as
shares in the plan that are voted by plan participants. |
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All shares entitled to vote and represented by properly
completed proxies received prior to the Agere annual meeting and
not revoked will be voted at the meeting in accordance with
stockholder instructions. If a signed proxy card is returned
without indicating how shares should be voted on a matter and
the proxy is not revoked, the shares represented by the proxy
will be voted as the Agere board of directors recommends and
therefore FOR the adoption of the merger agreement,
FOR each of the director nominees listed under the
heading Election of Agere Directors, FOR
the re-approval of Ageres Short Term Incentive Plan and
FOR the ratification of the selection of
PricewaterhouseCoopers LLP as Ageres independent
registered public accounting firm for fiscal 2007 at the annual
meeting. |
ix
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Q: |
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As an Agere stockholder, can I change my vote after I have
delivered my proxy? |
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Yes. Agere stockholders may revoke a proxy (including an
Internet or telephone vote) at any time before it is exercised
by timely delivery of a properly executed, later-dated proxy or
by voting in person at the meeting. |
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What will happen if Agere stockholders abstain from voting
or do not vote? |
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If an Agere stockholder abstains from voting or does not vote,
it will have the same effect as a vote against the proposal to
adopt the merger agreement. If a stockholder is present in
person or by proxy and abstains from voting, it will have the
same effect as a vote against (1) the proposal to
re-approve the Agere Short Term Incentive Plan and (2) the
proposal to ratify the selection of PricewaterhouseCoopers LLP
as Ageres independent registered public accounting firm
for fiscal 2007. Abstentions will have no effect on the election
of Agere directors. If an Agere stockholder returns a proxy and
does not indicate how it should be voted, shares represented by
such proxy will be voted as the Agere board of directors
recommends on all matters for consideration at the Agere annual
meeting. |
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Should Agere stock certificates be sent in now? |
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A: |
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No. If the merger is completed, Agere stockholders will
receive written instructions for sending in any stock
certificates they may have. |
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Q: |
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What do Agere stockholders need to do now? |
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A: |
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Carefully read and consider the information contained in and
incorporated by reference in this joint proxy
statement/prospectus, including its annexes. In order for shares
to be represented at the Agere annual meeting, Agere
stockholders can (1) vote over the Internet or by telephone
by following the instructions included on the proxy card,
(2) indicate on the enclosed proxy card how they would like
to vote and return the proxy card in the accompanying
pre-addressed postage paid envelope, or (3) attend the
Agere annual meeting in person. |
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Q: |
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As an Agere stockholder, who can answer my
questions? |
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A: |
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Agere stockholders with questions about the merger or the other
matters to be voted on at the Agere annual meeting should
contact The Proxy Advisory Group, LLC by phone at
(212) 213-3832,
or toll-free at
1-866-678-1770.
Agere stockholders who desire additional copies of this joint
proxy statement/prospectus or additional proxy cards should send
written requests or inquiries to Agere Systems Inc.,
1110 American Parkway NE,
Room 10A-301C,
Allentown, Pennsylvania 18109, Attention: Response Center, or
call
1-800-372-2447. |
x
SUMMARY
The following is a summary of the information contained in this
joint proxy statement/prospectus relating to the merger. This
summary may not contain all of the information about the merger
that is important to you. For a more complete description of the
merger, LSI and Agere encourage you to read carefully this
entire joint proxy statement/prospectus, including the attached
annexes. In addition, LSI and Agere encourage you to read the
information incorporated by reference into this joint proxy
statement/prospectus, which includes important business and
financial information about LSI and Agere. Stockholders of LSI
and Agere may obtain the information incorporated by reference
into this joint proxy statement/prospectus without charge by
following the instructions in the section entitled Where
You Can Find More Information beginning on page 134
of this joint proxy statement/prospectus.
The
Merger and the Merger Agreement (see page 94)
LSI and Agere have agreed to combine their businesses under the
terms of a merger agreement between the companies that is
described in this joint proxy statement/prospectus. A copy of
the merger agreement is attached to this joint proxy
statement/prospectus as Annex A. Under the terms of the
merger agreement, a newly-formed, wholly-owned subsidiary of LSI
will merge with and into Agere and Agere will survive the merger
as a wholly-owned subsidiary of LSI. Upon completion of the
merger, holders of Agere common stock will be entitled to
receive 2.16 shares of LSI common stock for each share of
Agere common stock they then hold. LSI stockholders will
continue to own their existing shares of LSI common stock after
the merger.
Parties
to the Merger
LSI Logic
Corporation
1621
Barber Lane
Milpitas, California 95035
(408) 433-8000
LSI designs, develops, and markets complex, high-performance
semiconductors and storage systems. In 2005, LSIs
operations were organized in four markets: communications,
consumer products, storage components and storage systems. On
March 6, 2006, LSI announced its plans to focus its
business growth opportunities in the information storage and
consumer markets.
LSI offers integrated circuit products, board-level products,
and software for use in consumer applications, high-performance
storage controllers, enterprise hard disk controllers, and
systems for storage area networks. LSIs integrated
circuits are also used in a wide range of communication devices.
LSI operates in two segments the semiconductor
segment and the storage systems segment in which LSI
offers products and services for a variety of electronic systems
applications. LSIs products are marketed primarily to
original equipment manufacturers that sell products to
LSIs target markets.
LSI was incorporated in California on November 6, 1980, and
was reincorporated in Delaware on June 11, 1987. LSIs
principal offices are located at 1621 Barber Lane, Milpitas,
California 95035, and LSIs telephone number at that
location is
(408) 433-8000.
LSIs home page on the Internet is www.lsi.com.
Agere
Systems Inc.
1110
American Parkway NE
Allentown, Pennsylvania 18109
(610) 712-1000
Agere is a leading provider of integrated circuit solutions for
a variety of computing and communications applications. Some of
Ageres solutions include related software and reference
designs. Ageres solutions are used in products such as
hard disk drives, mobile phones, high-speed communications
systems and personal computers. Agere also licenses its
intellectual property to others.
1
Atlas
Acquisition Corp.
1621
Barber Lane
Milpitas, California 95035
(408) 433-8000
Atlas Acquisition Corp. is a newly-formed, wholly-owned
subsidiary of LSI. LSI formed Atlas Acquisition Corp. solely to
effect the merger, and Atlas Acquisition Corp. has not conducted
and will not conduct any business during any period of its
existence.
Recommendation
of the LSI Board of Directors (see page 69)
After careful consideration, the LSI board of directors
unanimously determined that the merger agreement and the
consummation of the transactions contemplated by the merger
agreement are advisable and in the best interests of the LSI
stockholders, and has unanimously approved the merger agreement.
The LSI board of directors recommends that the LSI stockholders
vote FOR the proposal to approve the issuance of
shares of LSI common stock in connection with the merger.
Opinion
of LSI Financial Advisor Regarding the Merger (see
page 71)
On December 3, 2006, Morgan Stanley delivered its written
opinion to the LSI board of directors that, as of that date and
subject to the assumptions, considerations and limitations set
forth in its opinion, the exchange ratio provided for in the
merger agreement was fair, from a financial point of view, to
LSI. Morgan Stanley provided its opinion for the information and
assistance of the LSI board of directors in connection with the
boards consideration of the merger. The Morgan Stanley
opinion is not a recommendation as to how any LSI stockholder
should vote or take any other action with respect to the
proposal to approve the issuance of shares of LSI common stock
in connection with the merger.
The full text of the written opinion of Morgan Stanley, which
sets forth assumptions made, matters considered and limitations
on the review undertaken in connection with its opinion, is
attached to this joint proxy statement/prospectus as
Annex B. Stockholders of LSI are urged to read the opinion
carefully and in its entirety. LSI stockholders should carefully
consider the discussion of Morgan Stanleys analysis in the
section entitled Opinion of LSI Financial Advisor
beginning on page 71 of this joint proxy
statement/prospectus.
Recommendation
of the Agere Board of Directors (see page 81)
After careful consideration, the Agere board of directors by
unanimous vote of the directors present determined that the
merger is advisable and in the best interests of Agere and its
stockholders, and approved the merger agreement. The Agere board
of directors recommends that the Agere stockholders vote
FOR the proposal to adopt the merger agreement. The
Agere board of directors also recommends that Agere stockholders
vote FOR each of the director nominees of Agere
listed under the heading Election of Agere
Directors, FOR the re-approval of Ageres
Short Term Incentive Plan and FOR the ratification
of the selection of PricewaterhouseCoopers LLP as Ageres
independent registered public accounting firm for fiscal 2007.
Opinion
of Agere Financial Advisor Regarding the Merger (see
page 84)
On December 3, 2006, Goldman, Sachs & Co. rendered
its oral opinion, subsequently confirmed by delivery of its
written opinion, dated December 3, 2006, to Ageres
board of directors that, as of the date of its opinion and based
upon and subject to the factors and assumptions set forth in the
opinion, the exchange ratio of 2.16 shares of LSI common
stock to be received for each share of Agere common stock
pursuant to the merger agreement was fair from a financial point
of view to the holders of shares of Agere common stock.
The full text of the written opinion of Goldman Sachs, dated
December 3, 2006, which sets forth the assumptions made,
procedures followed, matters considered and limitations on the
review undertaken in connection with the opinion, is attached as
Annex C to this joint proxy statement/prospectus. Goldman
Sachs provided its opinion for the information and assistance of
Ageres board of directors in connection with its
consideration of the merger. Goldman Sachs opinion is not
a recommendation as to how any holder of Agere common stock
should vote with respect to the merger. Pursuant to an
engagement letter between Agere and Goldman Sachs, Agere has
agreed to pay Goldman Sachs a transaction fee of approximately
$28 million, substantially all of which is payable upon
consummation of the merger.
2
Some
Agere Directors and Executive Officers Have Interests in the
Merger (see page 90)
Certain members of the Agere board of directors and certain of
Ageres executive officers have interests in the
transactions contemplated by the merger agreement that may be
different than, or in addition to, the interests of Agere
stockholders generally. These interests include, among other
things, the following:
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Executive officers whose employment is terminated under certain
circumstances after the merger will be entitled to severance
benefits payable by Agere;
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Certain executive officers hold stock options which will become
exercisable and restricted stock units which will vest if their
employment is terminated under certain circumstances on or after
adoption of the merger agreement by Agere stockholders (or, if
later, on receipt of necessary governmental agency consent);
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Three directors from Ageres current board of directors
will be designated by Agere to serve on the board of directors
of the combined company after the effective time of the merger;
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Certain of Ageres current executive officers will be
offered continued employment with the combined company after the
effective time of the merger;
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Certain directors hold stock options which will become
exercisable upon adoption of the merger agreement by Agere
stockholders (or, if later, upon receipt of necessary
governmental agency consent); and
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Directors and officers will be indemnified by the combined
company with respect to acts or omissions by them in their
capacities as such prior to the effective time of the merger.
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The Agere board of directors was aware of these interests and
considered them, among other matters, in making its
recommendation. See The Merger Consideration
of the Merger by the Agere Board of Directors.
Share
Ownership of Directors and Executive Officers of LSI (see
page 28)
At the close of business on the record date for the LSI special
meeting, directors and executive officers of LSI beneficially
owned and were entitled to vote approximately 1.8% of the shares
of LSI common stock outstanding on that date.
Share
Ownership of Directors and Executive Officers of Agere (see page
40)
At the close of business on the record date for the Agere annual
meeting, directors and executive officers of Agere beneficially
owned and were entitled to vote less than 1% of the shares
of Agere common stock outstanding on that date.
Directors
and Certain Officers of LSI Following the Merger (see
page 93)
Effective upon closing of the merger, LSIs board of
directors will continue to consist of nine members, six of whom
will be designated by LSI and three of whom shall be designated
by Agere. Abhijit Talwalkar will serve as President and Chief
Executive Officer and Bryon Look will serve as Chief Financial
Officer following the merger. Although the exact composition of
the combined companys executive management team following
the merger was not finalized as of the date of this joint proxy
statement/prospectus, it is expected that Phil Brace, Phil
Bullinger, Jon Gibson, Andy Micallef, Umesh Padval, Jean Rankin,
Denis Regimbal, Jeff Richardson and Rudy Stroh will serve as
part of the combined companys post-merger executive
management team.
What is
Needed to Complete the Merger (see page 106)
Several conditions must be satisfied or waived before LSI and
Agere complete the merger, including those summarized below:
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adoption of the merger agreement by Agere stockholders;
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approval by LSI stockholders of the issuance of shares of LSI
common stock in the merger;
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no order of any court preventing the completion of the merger
shall be in effect;
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receipt of antitrust approvals from the United States and any
other foreign antitrust regulators, except for foreign
approvals, which, if not obtained, would not have a material
adverse effect on LSI, Agere and their subsidiaries, taken as a
whole;
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receipt of opinions by LSI and Agere from their respective tax
counsel that the merger will qualify as a
reorganization under the Internal Revenue Code;
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accuracy of each partys respective representations and
warranties in the merger agreement, except as would not have a
material adverse effect;
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material compliance by each party with its covenants in the
merger agreement; and
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absence of a material adverse effect on LSI or Agere,
respectively, from December 3, 2006 to the completion of
the merger.
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LSI and
Agere Are Prohibited from Soliciting Other Offers (see
page 99)
The merger agreement contains detailed provisions that prohibit
LSI and Agere, and their officers, directors, affiliates,
advisors and representatives from taking any action to solicit
or engage in discussions or negotiations with any person or
group with respect to an acquisition proposal as defined in the
merger agreement, including:
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an acquisition which would result in the person or group
acquiring more than 15% of a partys total outstanding
securities;
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an acquisition which would result in the person or group
acquiring more than 50% of any class of equity securities of a
partys subsidiaries that generate or constitute 15% or
more of the net revenues, net income or assets of such party;
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a sale or disposition by a party of assets that generate or
constitute 15% or more of the net revenues, net income or assets
of such party;
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a merger or other business combination involving a party or
subsidiaries that generate or constitute 15% or more of the net
revenues, net income or net assets of such party;
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any liquidation, dissolution, recapitalization or reorganization
involving a party or subsidiaries that generate or constitute
15% or more of the net revenues, net income or net assets of
such party; or
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any combination of the transactions described above.
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The merger agreement does not, however, prohibit either party
from considering a bona fide acquisition proposal from a third
party if specified conditions are met.
LSI and
Agere May Terminate the Merger Agreement Under Specified
Circumstances (see page 108)
Under circumstances specified in the merger agreement, either
LSI or Agere may terminate the merger agreement. These
circumstances generally include if:
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the merger is not completed by May 15, 2007 (which date
will be extended to August 31, 2007 if the merger has not
been completed as a result of a failure to obtain required
antitrust approvals and all other conditions to closing have
been satisfied or waived on or prior to such time);
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a final, non-appealable order of a court or any governmental
authority has the effect of permanently prohibiting completion
of the merger;
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the required approval of the stockholders of LSI of the issuance
of shares of LSI common stock in the merger has not been
obtained at LSIs duly held special meeting;
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the required approval of the stockholders of Agere to adopt the
merger agreement has not been obtained at Ageres duly held
annual meeting;
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the board of directors of the other party takes any of the
actions in opposition to the merger described as a
triggering event in the merger agreement;
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the other party breaches its representations, warranties or
covenants in the merger agreement such that its conditions to
completion of the merger regarding representations, warranties
or covenants would not be satisfied; or
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the other party consents to termination.
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LSI or
Agere May Pay a Termination Fee Under Specified Circumstances
(see page 109)
If the merger agreement is terminated, either LSI or Agere, in
specified circumstances, may be required to pay a termination
fee of $120 million to the other party.
4
The
Merger is Intended to Qualify as a Reorganization for United
States Federal Income Tax Purposes (see page 110)
The merger has been structured to qualify as a reorganization
for United States federal income tax purposes, and LSI and Agere
have each received the opinion of their respective counsel,
attached as exhibits 8.1 and 8.2 to the LSI registration
statement on
Form S-4
of which this joint proxy statement/prospectus forms a part,
regarding such qualification. Assuming the merger so qualifies,
Agere stockholders generally will not recognize gain or loss for
United States federal income tax purposes as a result of
receiving LSI common stock in exchange for their Agere common
stock pursuant to the merger, except with respect to cash
received instead of fractional shares of LSI common stock.
Stockholders of Agere should carefully read the discussion
setting forth such tax opinions in the section entitled
Material United States Federal Income Tax Consequences of
the Merger beginning on page 110 of this joint proxy
statement/prospectus. Further, stockholders of Agere are
encouraged to consult with a tax advisor because tax matters can
be complicated, and the tax consequences of the merger will
depend upon the specific situation of each stockholder.
Accounting
Treatment of the Merger (see page 112)
LSI will account for the merger under the purchase method of
accounting for business combinations.
LSI and
Agere Have Not Yet Obtained All Required Regulatory Approvals to
Complete the Merger (see page 112)
The merger is subject to certain antitrust laws. LSI and Agere
have made filings under applicable antitrust laws with the
United States Department of Justice and the United States
Federal Trade Commission, and the applicable waiting period
associated with such filings has expired. LSI and Agere are also
required to make, and have made, antitrust filings with
antitrust regulators in China and Germany. Under the merger
agreement, LSI and Agere are not obligated to complete the
merger until the applicable approvals have been received from
such foreign antitrust regulators where the failure to obtain
such foreign approvals would result in a material adverse effect
on LSI, Agere and their subsidiaries, taken as a whole.
LSI Will
List Shares of LSI Common Stock on the New York Stock Exchange
(see page 112)
LSI will use all reasonable efforts to cause the shares of LSI
common stock to be issued in connection with the merger to be
authorized for listing on the New York Stock Exchange before the
completion of the merger, subject to official notice of issuance.
No
Appraisal Rights (see page 113)
Neither LSI stockholders nor Agere stockholders are entitled to
dissenters rights of appraisal for their shares under the
Delaware General Corporation Law in connection with the merger.
5
SUMMARY
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF LSI
The following table sets forth summary selected historical
consolidated financial data with respect to LSI as of the dates
and for the periods indicated. The historical consolidated
statement of operations data presented below for the nine months
ended October 1, 2006 and the historical consolidated
balance sheet data as of October 1, 2006 have been derived
from LSIs unaudited historical consolidated financial
statements which are incorporated by reference into this joint
proxy statement/prospectus. The historical consolidated
statement of operations data presented below for the fiscal
years ended December 31, 2005, 2004, and 2003, and the
historical consolidated balance sheet data as of
December 31, 2005 and December 31, 2004 have been
derived from LSIs audited historical consolidated
financial statements, which are incorporated by reference into
this joint proxy statement/prospectus. The historical
consolidated statement of operations data presented below for
the fiscal years ended December 31, 2002 and 2001 and the
historical consolidated balance sheet data as of
December 31, 2003, 2002 and 2001 have been derived from
LSIs audited historical consolidated financial statements,
which are not incorporated by reference into this joint proxy
statement/prospectus.
Stockholders of LSI and Agere should read the following summary
selected historical consolidated financial data together with
the consolidated financial statements and accompanying notes
contained in LSIs Annual Report on
Form 10-K
for its fiscal year ended December 31, 2005 as filed with
the Securities and Exchange Commission, as well as the sections
of LSIs Annual Report on
Form 10-K,
entitled Managements Discussion and Analysis of
Financial Condition and Results of Operations, all of
which are incorporated by reference into this joint proxy
statement/prospectus. The following summary selected historical
consolidated financial data may not be indicative of LSIs
future performance.
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Nine Months
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Ended Oct. 1,
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Year Ended December 31,
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2006(1)
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2005
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2004
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2003(2)
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2002(3)
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2001(4)
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(In thousands, except per share amounts)
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Consolidated Statement of
Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
1,458,497
|
|
|
$
|
1,919,250
|
|
|
$
|
1,700,164
|
|
|
$
|
1,693,070
|
|
|
$
|
1,816,938
|
|
|
$
|
1,784,923
|
|
Gross profit
|
|
$
|
628,230
|
|
|
$
|
832,436
|
|
|
$
|
735,608
|
|
|
$
|
677,205
|
|
|
$
|
648,716
|
|
|
$
|
413,927
|
|
Net income/(loss)
|
|
$
|
110,625
|
|
|
$
|
(5,623
|
)
|
|
$
|
(463,531
|
)
|
|
$
|
(308,547
|
)
|
|
$
|
(292,440
|
)
|
|
$
|
(991,955
|
)
|
Net income/(loss) per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
0.28
|
|
|
$
|
(0.01
|
)
|
|
$
|
(1.21
|
)
|
|
$
|
(0.82
|
)
|
|
$
|
(0.79
|
)
|
|
$
|
(2.84
|
)
|
Diluted
|
|
$
|
0.27
|
|
|
$
|
(0.01
|
)
|
|
$
|
(1.21
|
)
|
|
$
|
(0.82
|
)
|
|
$
|
(0.79
|
)
|
|
$
|
(2.84
|
)
|
Shares used in computing per share
amounts:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
397,408
|
|
|
|
390,135
|
|
|
|
384,070
|
|
|
|
377,781
|
|
|
|
370,529
|
|
|
|
349,280
|
|
Diluted
|
|
|
403,779
|
|
|
|
390,135
|
|
|
|
384,070
|
|
|
|
377,781
|
|
|
|
370,529
|
|
|
|
349,280
|
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At October 1,
|
|
|
At December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
2004
|
|
|
2003
|
|
|
2002
|
|
|
2001
|
|
|
|
(In thousands)
|
|
|
Consolidated Balance Sheet
Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
2,978,910
|
|
|
$
|
2,796,066
|
|
|
$
|
2,874,001
|
|
|
$
|
3,447,901
|
|
|
$
|
4,012,736
|
|
|
$
|
4,525,077
|
|
Total current liabilities
|
|
$
|
742,228
|
|
|
$
|
742,769
|
|
|
$
|
396,280
|
|
|
$
|
391,251
|
|
|
$
|
390,679
|
|
|
$
|
509,985
|
|
Long-term debt
|
|
$
|
350,000
|
|
|
$
|
350,000
|
|
|
$
|
781,846
|
|
|
$
|
865,606
|
|
|
$
|
1,241,217
|
|
|
$
|
1,335,806
|
|
Total stockholders equity
|
|
$
|
1,803,978
|
|
|
$
|
1,627,950
|
|
|
$
|
1,618,046
|
|
|
$
|
2,042,450
|
|
|
$
|
2,300,355
|
|
|
$
|
2,479,885
|
|
|
|
(1)
|
On January 1, 2006, LSI adopted
SFAS 123-R
Share-Based Payments using the modified prospective
transition method. During the nine months ended October 1,
2006, LSI completed the sale of the Gresham, Oregon
semiconductor manufacturing facility to ON Semiconductor for
approximately $105.0 million in cash.
|
|
(2)
|
On January 1, 2003, LSI adopted SFAS No. 146,
Accounting for Exit or Disposal Activities.
SFAS No. 146 has been applied to restructuring
activities initiated after December 31, 2002 and changes
the timing of when restructuring charges are recorded to the
date when the liabilities are incurred.
|
|
(3)
|
During 2002, LSI recorded $46 million in additional excess
inventory and related charges and $67 million in charges
for restructuring of operations and other items, net. LSI
adopted SFAS No. 142 Goodwill and Other
Intangible Assets on January 1, 2002, as a result of
which goodwill is no longer amortized.
|
|
(4)
|
During 2001, LSI recorded $211 million in additional excess
inventory and related charges, a $97 million in-process
research and development charge associated with the acquisitions
of C-Cube and AMI, which were effective on May 11, 2001 and
August 31, 2001, respectively. In addition, LSI recorded
charges of $220 million for restructuring of operations and
other items, net.
|
LSI
RECENT DEVELOPMENTS
On January 24, 2007, LSI issued an earnings release
reporting its unaudited financial results for the fourth quarter
ended December 31, 2006, a copy of which was furnished to
the SEC on Form 8-K on January 24, 2007. LSI reported
unaudited fourth quarter 2006 revenues of $524 million, a 3%
increase year-over-year compared to the $506 million reported in
the fourth quarter of 2005, and up 6% sequentially compared to
the $493 million reported in the third quarter of 2006. LSI
recorded full year 2006 unaudited revenues of
$1.98 billion, a 3% increase compared to $1.92 billion
in 2005. Fourth quarter 2006 unaudited net income was
$59 million or 14 cents per diluted share. The fourth
quarter 2006 results compared to fourth quarter 2005 net income
of $38 million or nine cents per diluted share. Fourth
quarter 2006 results compare to third quarter 2006 net income of
$44 million or 11 cents per diluted share.
Cash and short-term investments totaled $1.01 billion at
the end of the fourth quarter of 2006, with $272 million in
repayment of convertible notes completed during the quarter.
7
SUMMARY
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF
AGERE
The following table sets forth selected financial information
for Agere. The financial information for the years ended
September 30, 2006, 2005, and 2004, and as of
September 30, 2006 and 2005, has been derived from
Ageres audited financial statements, which are
incorporated by reference into this joint proxy
statement/prospectus. The financial information for the years
ended September 30, 2003 and 2002 and as of
September 30, 2004, 2003 and 2002 has been derived from
Ageres audited financial statements, which are not
incorporated by reference into this joint proxy
statement/prospectus.
The historical selected financial information may not be
indicative of Ageres future performance and should be read
in conjunction with the information contained in
Managements Discussion and Analysis of Financial
Condition and Results of Operations in Item 7 and the
consolidated financial statements and the related notes in
Item 8 of Ageres Annual Report on
Form 10-K
for its fiscal year ended September 30, 2006, all of which
are incorporated by reference into this joint proxy
statement/prospectus.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended September 30,
|
|
|
|
2006(1)
|
|
|
2005(2)
|
|
|
2004(2)
|
|
|
2003
|
|
|
2002
|
|
|
|
(In millions, except per share amounts)
|
|
|
Statement of operations
information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
1,570
|
|
|
$
|
1,676
|
|
|
$
|
1,912
|
|
|
$
|
1,839
|
|
|
$
|
1,923
|
|
Gross profit
|
|
$
|
762
|
|
|
$
|
664
|
|
|
$
|
866
|
|
|
$
|
579
|
|
|
$
|
494
|
|
Income (loss) from continuing
operations
|
|
$
|
17
|
|
|
$
|
(8
|
)
|
|
$
|
(90
|
)
|
|
$
|
(371
|
)
|
|
$
|
(803
|
)
|
Basic and diluted income (loss)
per share:(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) from continuing
operations
|
|
$
|
0.10
|
|
|
$
|
(0.04
|
)
|
|
$
|
(0.52
|
)
|
|
$
|
(2.23
|
)
|
|
$
|
(4.90
|
)
|
Weighted average shares
outstanding basic (in thousands)
|
|
|
174,525
|
|
|
|
177,775
|
|
|
|
171,248
|
|
|
|
166,699
|
|
|
|
163,720
|
|
Weighted average shares
outstanding diluted (in thousands)
|
|
|
175,432
|
|
|
|
177,775
|
|
|
|
171,248
|
|
|
|
166,699
|
|
|
|
163,720
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At September 30,
|
|
|
|
2006(1)
|
|
|
2005(2)
|
|
|
2004(2)
|
|
|
2003
|
|
|
2002
|
|
|
|
(In millions)
|
|
|
Balance sheet
information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
1,497
|
|
|
$
|
1,881
|
|
|
$
|
2,272
|
|
|
$
|
2,388
|
|
|
$
|
2,864
|
|
Short-term debt
|
|
$
|
|
|
|
$
|
|
|
|
$
|
147
|
|
|
$
|
195
|
|
|
$
|
197
|
|
Long-term debt
|
|
$
|
362
|
|
|
$
|
372
|
|
|
$
|
420
|
|
|
$
|
451
|
|
|
$
|
486
|
|
|
|
|
(1) |
|
During fiscal 2006 Agere recorded a tax benefit of
$24 million as a result of a $66 million reduction in
its pension benefit obligations. This benefit was offset by a
$24 million tax charge recorded against the minimum pension
liability adjustment reflected in other comprehensive loss.
Also, the decrease in Ageres total assets reflects the
repurchase of 17,681,198 shares of Agere common stock for
$255 million of cash. On October 1, 2005, Agere adopted
SFAS 123-R
Share-Based Payments using the modified prospective
transition method. |
|
(2) |
|
During fiscal 2005 and fiscal 2004 Agere recorded reversals of
tax and interest contingencies of $120 million and
$86 million, respectively, resulting from settlements of
certain prior year tax audits. The settlements relate to
Ageres tax sharing agreement with Lucent Technologies Inc.
and cover periods Agere operated as either a division of
AT&T Corp. or Lucent. In fiscal 2005, Agere also recorded a
reversal of $22 million for tax and interest contingencies
related to
non-U.S. income
tax. |
|
(3) |
|
On May 27, 2005, Agere reclassified its Class A common
stock and Class B common stock into a new, single class of
common stock, and effected a
1-for-10
reverse stock split. The weighted average number of common
shares outstanding and income (loss) per share from continuing
operations on a historical basis were adjusted to give
retroactive effect to Ageres reverse stock split. Basic
income (loss) per common share is calculated by dividing income
(loss) from continuing operations by the weighted average number
of common shares outstanding during |
8
|
|
|
|
|
the period. Diluted income (loss) per common share is calculated
by dividing income (loss) from continuing operations by the
adjusted outstanding shares for all dilutive potential common
shares outstanding. |
AGERE
RECENT DEVELOPMENTS
Financial
Results for First Quarter
On January 25, 2007, Agere Systems issued a news release
announcing its financial results for the quarter ended
December 31, 2006. For the quarter ending December 31,
2006, Agere reported revenue of $372 million and diluted
earnings per share of $0.09, compared to revenue of
$403 million and a diluted loss per share of $(0.11) for
the quarter ending December 31, 2005.
Pending
Litigation
On December 6, 2006, Sony Ericsson Mobile Communications
USA Inc. filed a lawsuit in Wake County Superior Court in North
Carolina, alleging unfair and deceptive trade practices, fraud
and negligent misrepresentation in connection with Ageres
engagement with Sony Ericsson to develop a wireless data card
for personal computers. While Agere has not completed its review
of the matter, based on the information currently available,
Agere intends to contest this matter vigorously.
9
SELECTED
UNAUDITED PRO FORMA
The selected unaudited pro forma combined condensed consolidated
financial data for the year ended December 31, 2005 and the
nine months ended October 1, 2006 gives effect to the
merger and is based on estimates and assumptions which are
preliminary. The selected unaudited pro forma combined condensed
statement of operations data gives effect to the merger as if it
had occurred on January 1, 2005. The selected unaudited pro
forma combined condensed balance sheet date gives effect to the
merger as if it had occurred on October 1, 2006. This data
is presented for informational purposes only and is not intended
to represent or be indicative of the consolidated results of
operations or financial condition of LSI that would have been
reported had the merger been completed as of either such date,
and should not be taken as representative of future consolidated
results of operations or financial condition of LSI.
This selected unaudited pro forma combined condensed
consolidated financial data should be read in conjunction with
the summary selected historical consolidated financial data and
the unaudited pro forma combined condensed consolidated
financial statements and accompanying notes contained elsewhere
in this joint proxy statement/prospectus and the separate
historical consolidated financial statements and accompanying
notes of LSI and Agere incorporated by reference into this joint
proxy statement/prospectus. See the section entitled Where
You Can Find More Information beginning on page 134
of this joint proxy statement/prospectus.
|
|
|
|
|
|
|
|
|
|
|
Nine months ended
|
|
Year ended
|
|
|
October 1, 2006
|
|
December 31, 2005
|
|
|
(In thousands, except
|
|
|
per share amounts)
|
|
Statement of Operations
Data:
|
|
|
|
|
|
|
|
|
Revenues
|
|
$
|
2,640,049
|
|
|
$
|
3,595,613
|
|
Gross profit
|
|
|
1,204,945
|
|
|
|
1,414,824
|
|
Income/(loss) from continuing
operations
|
|
|
20,222
|
|
|
|
(270,137
|
)
|
Income/(loss) from continuing
operations per share:
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
0.03
|
|
|
$
|
(0.36
|
)
|
Diluted
|
|
$
|
0.03
|
|
|
$
|
(0.36
|
)
|
Shares used in computing per share
amounts:
|
|
|
|
|
|
|
|
|
Basic
|
|
|
760,594
|
|
|
|
753,321
|
|
Diluted
|
|
|
777,752
|
|
|
|
753,321
|
|
|
|
|
|
|
|
|
At
|
|
|
October 1, 2006
|
|
|
(In thousands)
|
|
Balance Sheet Data:
|
Total assets
|
|
$
|
7,909,087
|
|
Total current liabilities
|
|
$
|
1,157,232
|
|
Long-term obligations
|
|
$
|
1,687,450
|
|
Total stockholders equity
|
|
$
|
5,064,171
|
|
10
COMPARATIVE
HISTORICAL AND PRO FORMA PER SHARE DATA
The following table presents comparative historical per share
data regarding the income/(loss) from continuing operations and
book value of each of LSI and Agere and unaudited combined pro
forma per share data after giving effect to the merger as a
purchase of Agere by LSI assuming the merger had been completed
on January 1, 2005. The following data assumes
2.16 shares of LSI common stock will be issued in exchange
for each share of Agere common stock in connection with the
merger and the assumption of Agere options and other equity
based awards based upon the same exchange ratio. This data has
been derived from and should be read in conjunction with the
summary selected historical consolidated financial data and
unaudited pro forma combined condensed consolidated financial
statements contained elsewhere in this joint proxy
statement/prospectus, and the separate historical consolidated
financial statements of LSI and Agere and accompanying notes
incorporated by reference into this joint proxy
statement/prospectus. The unaudited pro forma per share data is
presented for informational purposes only and is not intended to
represent or be indicative of the consolidated results of
operations or financial condition of LSI that would have been
reported had the merger been completed as of the date presented,
and should not be taken as representative of future consolidated
results of operations or financial condition of LSI.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
Historical
|
|
Historical
|
|
Pro Forma
|
|
Equivalent of One
|
|
|
LSI
|
|
Agere(2)
|
|
Combined
|
|
Agere Share(1)
|
|
Income/(loss) from continuing
operations per share-diluted:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, 2005
|
|
$
|
(0.01
|
)
|
|
$
|
(0.04
|
)
|
|
$
|
(0.36
|
)
|
|
$
|
(0.78
|
)
|
Nine months ended October 1,
2006
|
|
$
|
0.27
|
|
|
$
|
0.02
|
|
|
$
|
0.03
|
|
|
$
|
0.06
|
|
Book value per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
October 1, 2006
|
|
$
|
4.51
|
|
|
$
|
1.82
|
|
|
$
|
6.67
|
|
|
$
|
14.41
|
|
Outstanding shares (in millions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2005
|
|
|
394
|
|
|
|
182
|
|
|
|
787
|
|
|
|
|
|
October 1, 2006
|
|
|
400
|
|
|
|
166
|
|
|
|
759
|
|
|
|
|
|
|
|
(1)
|
The Pro Forma Equivalent of One Agere Share amounts were
calculated by multiplying the exchange ratio in the merger of
2.16 and the pro forma combined diluted income/(loss) from
continuing operations and book value per share, respectively.
|
|
(2)
|
The historical Agere income/(loss) from continuing operations
per share diluted data is for the year ended September 30,
2005 and nine months ended June 30, 2006. The book value
per share is as of September 30, 2006 and the outstanding
shares are as of September 30, 2005 and September 30,
2006.
|
11
COMPARATIVE
PER SHARE MARKET PRICE DATA
LSI common stock trades on the New York Stock Exchange under the
symbol LSI. Agere common stock trades on the New
York Stock Exchange under the symbol AGR.
The following table shows the high and low sales prices per
share of LSI common stock and Agere common stock, each as
reported on the New York Stock Exchange composite transactions
tape on (1) December 1, 2006, the last full trading
day preceding public announcement that LSI and Agere had entered
into the merger agreement, and (2) February 2, 2007,
the last full trading day for which high and low sales prices
were available as of the date of this joint proxy
statement/prospectus.
The table also includes the equivalent high and low sales prices
per share of Agere common stock on those dates. These equivalent
high and low sales prices per share reflect the fluctuating
value of LSI common stock that Agere stockholders would receive
in exchange for each share of Agere common stock if the merger
were completed on either of these dates, applying the exchange
ratio of 2.16 shares of LSI common stock for each share of
Agere common stock.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equivalent Price
|
|
|
|
LSI Common Stock
|
|
|
Agere Common Stock
|
|
|
per Share
|
|
|
|
High
|
|
|
Low
|
|
|
High
|
|
|
Low
|
|
|
High
|
|
|
Low
|
|
|
December 1, 2006
|
|
$
|
10.70
|
|
|
$
|
10.37
|
|
|
$
|
17.96
|
|
|
$
|
17.40
|
|
|
$
|
23.11
|
|
|
$
|
22.40
|
|
February 2, 2007
|
|
$
|
9.51
|
|
|
$
|
9.27
|
|
|
$
|
20.39
|
|
|
$
|
19.87
|
|
|
$
|
20.54
|
|
|
$
|
20.02
|
|
The above table shows only historical comparisons. These
comparisons may not provide meaningful information to LSI
stockholders in determining whether to approve the issuance of
shares of LSI common stock in connection with the merger or to
Agere stockholders in determining whether to adopt the merger
agreement. LSI and Agere stockholders are urged to obtain
current market quotations for LSI and Agere common stock and to
review carefully the other information contained in this joint
proxy statement/prospectus or incorporated by reference into
this joint proxy statement/prospectus in considering whether to
approve the issuance of shares of LSI common stock in the merger
in the case of LSI stockholders, and whether to adopt the merger
agreement in the case of Agere stockholders. See the section
entitled Where You Can Find More Information
beginning on page 134 of this joint proxy
statement/prospectus.
12
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING INFORMATION
This joint proxy statement/prospectus and the documents
incorporated by reference into this joint proxy
statement/prospectus contain forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933
and Section 21E of the Securities Exchange Act of 1934 that
involve risks and uncertainties, as well as assumptions, that,
if they never materialize or prove incorrect, could cause the
results of LSI and its consolidated subsidiaries, on the one
hand, or Agere and its consolidated subsidiaries, on the other
hand, to differ materially from those expressed or implied by
such forward-looking statements. All statements other than
statements of historical fact are statements that could be
deemed forward-looking statements, including statements about
future financial and operating results; benefits of the
transaction to customers, stockholders and employees; potential
synergies and cost savings resulting from the transaction; the
ability of the combined company to drive growth and expand
customer and partner relationships and other statements
regarding the proposed transaction, and any statements regarding
future economic conditions or performance; any statements of
belief; and any statements of assumptions underlying any of the
foregoing.
The following factors, among others, could cause actual results
to differ materially from those described in the forward-looking
statements: failure of LSI stockholders to approve the issuance
of shares of LSI common stock in the merger or the failure of
Agere stockholders to adopt the merger agreement; the challenges
and costs of closing, integrating, restructuring and achieving
anticipated synergies; the ability to retain key employees; and
other economic, business, competitive,
and/or
regulatory factors affecting the businesses of LSI and Agere
generally, including other risks that are described in the
section entitled Risk Factors, which follows on the
next page, and in the documents that are incorporated by
reference into this joint proxy statement/prospectus.
If any of these risks or uncertainties materializes or any of
these assumptions proves incorrect, results of LSI, Agere and
the combined company could differ materially from the
expectations in these statements. LSI and Agere are not under
any obligation (and expressly disclaim any such obligation) to
update their respective forward-looking statements, except as
required by law.
13
RISK
FACTORS
In addition to the other information included or incorporated
by reference in this joint proxy statement/prospectus, including
the matters addressed under Cautionary Statement Regarding
Forward-Looking Information, LSI stockholders should
carefully consider the following risks before deciding whether
to vote for approval of the issuance of the shares of LSI common
stock in the merger and Agere stockholders should carefully
consider the following risks before deciding whether to vote for
adoption of the merger agreement. In addition, stockholders of
LSI and Agere should read and consider the risks associated with
each of the businesses of LSI and Agere because these risks will
relate to the combined company. Certain of these risks can be
found in LSIs annual report on
Form 10-K
for the fiscal year ended December 31, 2005, and in
LSIs quarterly report on
Form 10-Q
for the period ended October 1, 2006, each of which is
incorporated by reference into this joint proxy
statement/prospectus, and in Ageres annual report on
Form 10-K
for the fiscal year ended September 30, 2006, which is
incorporated by reference into this joint proxy
statement/prospectus. You should also consider the other
information in this joint proxy statement/prospectus and the
other documents incorporated by reference into this joint proxy
statement/prospectus. See Where You Can Find More
Information.
Risk
Factors Relating to the Merger
Agere
stockholders will receive a fixed ratio of 2.16 shares of
LSI common stock for each share of Agere common stock regardless
of any changes in market value of Agere common stock or LSI
common stock before the completion of the merger.
Upon completion of the merger, each share of Agere common stock
will be converted into the right to receive 2.16 shares of
LSI common stock. There will be no adjustment to the exchange
ratio (except for adjustments to reflect the effect of any stock
split or other recapitalization of LSI common stock or Agere
common stock), and the parties do not have a right to terminate
the merger agreement based upon changes in the market price of
either LSI common stock or Agere common stock. Accordingly, the
dollar value of LSI common stock that Agere stockholders will
receive upon completion of the merger will depend upon the
market value of LSI common stock at the time of completion of
the merger, which may be different from, and lower than, the
closing price of LSI common stock on the last full trading day
preceding public announcement that LSI and Agere entered into
the merger agreement, the last full trading day prior to the
date of this joint proxy statement/prospectus or the date of the
stockholder meetings. Moreover, completion of the merger may
occur some time after the requisite stockholder approvals have
been obtained. The market values of LSI common stock and Agere
common stock have varied since LSI and Agere entered into the
merger agreement and will continue to vary in the future due to
changes in the business, operations or prospects of LSI and
Agere, market assessments of the merger, regulatory
considerations, market and economic considerations, and other
factors both within and beyond the control of LSI and Agere.
The
issuance of shares of LSI common stock to Agere stockholders in
the merger will substantially reduce the percentage interests of
LSI stockholders.
If the merger is completed, LSI and Agere expect that
(i) approximately 365.8 million shares of LSI common
stock would be issued to Agere stockholders, (ii) upon
exercise of assumed equity awards, up to approximately
59.7 million shares will be issued to holders of assumed
options and restricted stock units and (iii) an additional
23.6 million shares will be issuable upon conversion of
Ageres outstanding convertible notes. Based on the number
of shares of LSI and Agere common stock outstanding on
January 31, 2007, Agere stockholders before the merger will
own, in the aggregate, approximately 48% of the fully diluted
shares of LSI common stock immediately after the merger,
excluding shares issuable upon conversion of Ageres
outstanding convertible notes. The issuance of shares of LSI
common stock to Agere stockholders in the merger and to holders
of assumed options and restricted stock units will cause a
significant reduction in the relative percentage interest of
current LSI stockholders in earnings, voting, liquidation value
and book and market value.
14
The
merger is subject to the receipt of consents and approvals from
government entities that may impose conditions that could have
an adverse effect on LSI or Agere or could cause abandonment of
the merger.
Completion of the merger is conditioned upon the expiration or
termination of the applicable waiting period under the
Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, which has now
expired, and also the making of certain filings with and notices
to, and the receipt of consents, orders and approvals from,
various local, state, federal and foreign governmental entities.
Certain of these consents, orders and approvals will involve the
relevant governmental entitys consideration of the effect
of the merger on competition in various jurisdictions.
The reviewing authorities may not permit the merger at all or
may impose restrictions or conditions on the merger that may
seriously harm the combined company if the merger is completed.
These conditions could include a complete or partial license,
divestiture, spin-off or the holding separate of assets or
businesses. Either LSI or Agere may refuse to complete the
merger if restrictions or conditions are required by
governmental authorities that would materially adversely impact
the combined companys results of operations or the
benefits anticipated to be derived by the combined company. Any
delay in the completion of the merger could diminish the
anticipated benefits of the merger or result in additional
transaction costs, loss of revenue or other effects associated
with uncertainty about the transaction.
LSI and Agere also may agree to restrictions or conditions
imposed by antitrust authorities in order to obtain regulatory
approval, and these restrictions or conditions could harm the
combined companys operations. No additional stockholder
approvals are expected to be required for any decision by LSI or
Agere, after the annual meeting of Agere stockholders and the
special meeting of LSI stockholders, to agree to any terms and
conditions necessary to resolve any regulatory objections to the
merger.
In addition, during or after the statutory waiting periods, and
even after completion of the merger, governmental authorities
could seek to block or challenge the merger as they deem
necessary or desirable in the public interest. In addition, in
some jurisdictions, a competitor, customer or other third party
could initiate a private action under the antitrust laws
challenging or seeking to enjoin the merger, before or after it
is completed. LSI, Agere or the combined company may not
prevail, or may incur significant costs, in defending or
settling any action under antitrust laws. See The Merger
Agreement Conditions to Obligations to Complete the
Merger and The Merger Agreement
Regulatory Filings and Approvals Required to Complete the
Merger.
Any
delay in completing the merger may significantly reduce the
benefits expected to be obtained from the merger.
In addition to the required regulatory clearances and approvals,
the merger is subject to a number of other conditions beyond the
control of LSI and Agere that may prevent, delay or otherwise
materially adversely affect its completion. See The Merger
Agreement Conditions to Obligations to Complete the
Merger. LSI and Agere cannot predict whether and when
these other conditions will be satisfied. Further, the
requirements for obtaining the required clearances and approvals
could delay the completion of the merger for a significant
period of time or prevent it from occurring. Any delay in
completing the merger may significantly reduce the synergies and
other benefits that LSI and Agere expect to achieve if they
successfully complete the merger within the expected timeframe
and integrate their respective businesses.
Customer
uncertainties related to the merger could adversely affect the
businesses, revenues and gross margins of LSI, Agere and the
combined company.
In response to the announcement of the merger or due to ongoing
uncertainty about the merger, customers of LSI or Agere may
delay or defer purchasing decisions or elect to switch to other
suppliers. In particular, prospective customers could be
reluctant to purchase the products and services of LSI, Agere or
the combined company due to uncertainty about the direction of
the combined companys offerings and willingness to support
existing products. To the extent that the merger creates
uncertainty among those persons and organizations contemplating
purchases such that one large customer, or a significant group
of smaller customers, delays, defers or changes purchases in
connection with the planned merger, the revenues of LSI, Agere
or the combined company would be adversely affected. Customer
assurances may be made by LSI and Agere to address their
customers uncertainty about the direction of the combined
companys product and related support offerings, which may
result in additional
15
obligations of LSI, Agere or the combined company. In addition,
the announcement of the merger may cause prospective licensees
of Ageres intellectual property to delay or defer
licensing decisions resulting in a decline in Ageres
licensing revenues which could have a significant impact on the
profitability of Agere and the combined company. Quarterly
revenues and net earnings of LSI, Agere or the combined company
could be substantially below expectations of market analysts and
a decline in the companies respective stock prices could
result.
Certain
directors and executive officers of LSI and Agere have interests
in the merger that may be different from, or in addition to, the
interests of LSI stockholders and Agere
stockholders.
Executive officers of LSI and Agere negotiated the terms of the
merger agreement under the direction of the boards of directors
of LSI and Agere, respectively. The board of directors of LSI
approved the merger agreement and unanimously recommended that
LSI stockholders vote in favor of the issuance of shares of LSI
common stock in the merger, and the board of directors of Agere
by unanimous vote of the directors present approved the merger
agreement and recommended that Agere stockholders vote in favor
of the of the adoption of the merger agreement. These directors
and executive officers may have interests in the merger that are
different from, or in addition to or may be deemed to conflict
with, yours. These interests include the continued employment of
certain executive officers of LSI and Agere by the combined
company, the continued positions of certain directors of LSI and
Agere as directors of the combined company and the
indemnification of former LSI and Agere directors and officers
by the combined company. With respect to Agere directors and
executive officers, these interests also include the treatment
in the merger of employment agreements, severance policies,
restricted stock units, stock options and other rights held by
these directors and executive officers. LSI stockholders should
be aware of these interests when they consider the LSI board of
directors recommendation that LSI stockholders vote in
favor of the proposal to issue shares of LSI common stock in the
merger, and Agere stockholders should be aware of these
interests when they consider the Agere board of directors
recommendation that they vote in favor of the proposal to adopt
the merger agreement. For a discussion of the interests of
directors and executive officers in the merger, see The
Merger Interests of the Directors and Executive
Officers of Agere in the Merger.
Provisions
of the merger agreement may deter alternative business
combinations and could negatively impact the stock prices of LSI
and Agere if the merger agreement is terminated in certain
circumstances.
The merger agreement prohibits LSI and Agere from soliciting,
initiating, encouraging or facilitating certain alternative
acquisition proposals with any third party, subject to
exceptions set forth in the merger agreement. The merger
agreement also provides for the payment by LSI or Agere of a
termination fee of $120 million if the merger agreement is
terminated in certain circumstances in connection with a
competing third-party acquisition proposal for one of the
companies. See The Merger Agreement LSI and
Agere Are Prohibited from Soliciting Other Offers and
The Merger Agreement Termination; Fees and
Expenses. These provisions limit LSIs and
Ageres ability to pursue offers from third parties that
could result in greater value to the LSI stockholders or the
Agere stockholders, as the case may be. The obligation to pay
the termination fee also may discourage a third party from
pursuing an alternative acquisition proposal. If the merger is
terminated and LSI or Agere determine to seek another business
combination, neither LSI nor Agere can assure its stockholders
that they will be able to negotiate a transaction with another
company on terms comparable to the terms of the merger, or that
they will avoid incurrence of any fees associated with the
termination of the merger agreement.
In the event the merger is terminated by LSI or Agere in
circumstances that obligate either party to pay the termination
fee to the other party, including where either party terminates
the merger agreement because the other partys board of
directors withdraws its support of the merger, LSIs
and/or
Ageres stock prices may decline.
If the
proposed merger is not completed, LSI and Agere will have
incurred substantial costs that may adversely affect LSIs
and Ageres financial results and operations and the market
price of LSI and Agere common stock.
If the merger is not completed, the price of LSI common stock
and Agere common stock may decline to the extent that the
current market prices of LSI common stock and Agere common stock
reflect a market assumption that the merger will be completed.
In addition, LSI and Agere have incurred and will incur
substantial costs in connection with the proposed merger. These
costs are primarily associated with the fees of attorneys,
accountants
16
and LSIs and Ageres financial advisors. In addition,
LSI and Agere have each diverted significant management
resources in an effort to complete the merger and are each
subject to restrictions contained in the merger agreement on the
conduct of its business. If the merger is not completed, LSI and
Agere will have incurred significant costs, including the
diversion of management resources, for which each will have
received little or no benefit. Also, if the merger is not
completed under certain circumstances specified in the merger
agreement, LSI or Agere may be required to pay a termination fee
of $120 million. See The Merger Agreement
Termination; Fees and Expenses.
In addition, if the merger is not completed, LSI and Agere may
experience negative reactions from the financial markets and
LSIs and Ageres suppliers, customers and employees.
Each of these factors may adversely affect the trading price of
LSI and/or
Agere common stock and LSIs
and/or
Ageres financial results and operations.
Risk
Factors Relating to the Combined Company Following the
Merger
The
combined company may fail to realize the benefits expected from
the merger, which could adversely affect the value of LSIs
common stock.
The merger involves the integration of LSI and Agere, two
companies that have previously operated independently. LSI and
Agere entered into the merger agreement with the expectation
that, among other things, the merger would enable the combined
company to consolidate support functions, leverage its research
and development, patents and services across a larger base, and
integrate its workforce to create opportunities to achieve cost
savings and to become a stronger and more competitive company.
Although LSI and Agere expect significant benefits to result
from the merger, there can be no assurance that the combined
company will actually realize these or any other anticipated
benefits of the merger.
The value of LSIs common stock following completion of the
merger may be affected by the ability of the combined company to
achieve the benefits expected to result from the merger. LSI and
Agere currently operate in 20 countries, with a combined
workforce of approximately 9,100 employees. Achieving the
benefits of the merger will depend in part upon meeting the
challenges inherent in the successful combination and
integration of global business enterprises of the size and scope
of LSI and Agere. The challenges involved in this integration
include the following:
|
|
|
|
|
Demonstrating to customers of LSI and Agere that the merger will
not result in adverse changes to the ability of the combined
company to address the needs of customers or the loss of
attention or business focus;
|
|
|
|
Coordinating and integrating independent research and
development teams across technologies and product platforms to
enhance product development while reducing costs;
|
|
|
|
Combining product offerings;
|
|
|
|
Consolidating and integrating corporate, information technology,
finance, and administrative infrastructures;
|
|
|
|
Coordinating sales and marketing efforts to effectively position
the capabilities of the combined company and the direction of
product development; and
|
|
|
|
Minimizing the diversion of management attention from important
business objectives.
|
If the combined company does not successfully manage these
issues and the other challenges inherent in integrating
businesses of the size and complexity of LSI and Agere, then the
combined company may not achieve the anticipated benefits of the
merger and the revenues, expenses, operating results and
financial condition of the combined company could be materially
adversely effected. For example, goodwill and other intangible
assets could be determined to be impaired which could adversely
impact the companys financial results. The successful
integration of the LSI and Agere businesses is likely to require
significant management attention both before and after the
completion of the merger, and may divert the attention of
management from business and operational issues of LSI, Agere
and the combined company.
17
Uncertainties
associated with the merger may cause a loss of employees and may
otherwise materially adversely affect the businesses of LSI and
Agere, and the future business and operations of the combined
company.
The combined companys success after the merger will depend
in part upon the ability of the combined company to retain key
employees of LSI and Agere. In some of the fields in which LSI
and Agere operate, there are only a limited number of people in
the job market who possess the requisite skills. Each of LSI and
Agere has experienced difficulty in hiring and retaining
sufficient numbers of qualified engineers in parts of their
respective businesses. Current and prospective employees of LSI
and Agere may experience uncertainty about their post-merger
roles with the combined company following the merger. This may
materially adversely affect the ability of each of LSI and Agere
to attract and retain key management, sales, marketing,
technical and other personnel. In addition, key employees may
depart because of issues relating to the uncertainty and
difficulty of integration or a desire not to remain with the
combined company following the merger. The loss of services of
any key personnel or the inability to hire new personnel with
the requisite skills could restrict the ability of LSI, Agere
and the combined company to develop new products or enhance
existing products in a timely matter, to sell products to
customers or to manage the business of LSI, Agere and the
combined company effectively.
The
industries in which LSI and Agere operate are highly cyclical,
and operating results of the combined company may
fluctuate.
LSI and Agere operate in the highly cyclical semiconductor
device and storage systems industries. These industries are
characterized by wide fluctuations in product supply and demand.
In the past, the semiconductor industry has experienced
significant downturns, often in connection with, or in
anticipation of, excess manufacturing capacity worldwide,
maturing product cycles and declines in general economic
conditions. Even if demand for the products of LSI or Agere
remains constant after the completion of the merger, the
availability of additional excess production capacity in the
semiconductor industry may create competitive pressures that can
degrade pricing levels and reduce revenues of the combined
company.
General
economic weakness and geopolitical factors may harm the combined
companys operating results and financial
condition.
The results of operations of the combined company will be
dependent to a large extent upon the global economy.
Geopolitical factors such as terrorist activities, armed
conflict or global health conditions that adversely affect the
global economy may adversely affect the operating results and
financial condition of the combined company.
The
combined company will be dependent upon a limited number of
customers.
A limited number of customers will account for a substantial
portion of the combined companys revenues. For LSIs
most recent fiscal year ended December 31, 2005,
International Business Machines Corporation and Seagate
Technology represented approximately 16% and 11%, respectively,
of LSIs consolidated revenues. For Ageres most
recent fiscal year ended September 30, 2006, Seagate
Technology, Inc. and Samsung Electronics Co., Ltd. represented
approximately 24% and 18%, respectively, of Ageres
revenues. If any of the key customers of LSI or Agere were to
decide to significantly reduce or cancel its existing business,
the operating results and the financial condition of the
combined company could be adversely affected. Because many of
the products of the combined company will have long product
design and development cycles, it may be difficult for the
combined company to replace key customers who reduce or cancel
existing business. In addition, the combined company may not
win new product designs from major existing customers, major
customers may make significant changes in scheduled deliveries,
or there may be declines in the prices of products sold to these
customers, and the business of the combined company may be
adversely affected if any of these events were to occur.
18
The
combined company will depend to a large extent upon independent
foundry subcontractors to manufacture its semiconductor
products; accordingly, any failure to secure and maintain
sufficient foundry capacity could materially and adversely
affect the combined companys business.
Since selling its Gresham, Oregon semiconductor manufacturing
facility in May 2006, LSI has relied entirely on independent
foundry subcontractors to manufacture its semiconductor
products. Agere owns an interest in a joint venture that
operates a semiconductor wafer manufacturing facility, but also
relies on independent foundry subcontractors to manufacture a
significant portion of its semiconductor products. Because the
combined company will rely on joint ventures and third party
manufacturing relationships, the combined company will face the
following risks:
|
|
|
|
|
a manufacturer may be unwilling to devote adequate capacity to
production of products for the combined company, or may be
unable to produce such products;
|
|
|
|
a manufacturer may not be able to develop manufacturing methods
appropriate for the products of the combined company;
|
|
|
|
manufacturing costs may be higher than planned;
|
|
|
|
product reliability may decline;
|
|
|
|
a manufacturer may not be able to maintain continuing
relationships with suppliers to the combined company; and
|
|
|
|
the combined company may have reduced control over delivery
schedules, quality, manufacturing yields and costs of products.
|
If any of these risks were to be realized, the combined company
could experience an interruption in supply or an increase in
costs, which could adversely affect results of operations.
The ability of an independent foundry subcontractor to provide
the combined company with semiconductor devices is limited by
its available capacity and existing obligations. Availability of
foundry capacity has in the recent past been reduced from time
to time due to strong demand. Although each of LSI and Agere
have entered into contractual commitments to supply specified
levels of products to certain of their respective customers,
neither LSI nor Agere have long-term volume purchase agreements
or significant guaranteed level of production capacity with any
of their third-party foundry suppliers. Foundry capacity may not
be available when needed at reasonable prices. Each of LSI and
Agere places orders on the basis of its customers purchase
orders or its forecast of customer demand, and the foundries can
allocate capacity to the production of other companies
products and reduce deliveries to LSI and Agere on short notice.
It is possible that other foundry customers that are larger and
better financed than the combined company, or that have
long-term agreements with the foundry suppliers, may induce
foundries to reallocate capacity to them. This reallocation
could impair the ability of the combined company to secure the
supply of components that they need. Also, the foundry suppliers
to LSI and Agere migrate capacity to newer,
state-of-the-art
manufacturing processes on a regular basis, which may create
capacity shortages for products designed to be manufactured on
older processes. In addition, the occurrence of a public health
emergency or natural disaster could further affect the
production capabilities of the combined companys
manufacturers by resulting in quarantines or closures. If any of
the foundry suppliers to the combined company experiences a
shortage in capacity, suffers any damage to its facilities due
to earthquakes or other natural disasters, experiences power
outages, encounters financial difficulties or experiences any
other disruption of foundry capacity, the combined company may
need to qualify an alternative foundry supplier, which may
require several months. As a result of all of these factors and
risks, neither LSI nor Agere can provide any assurances that any
foundries will be able to produce integrated circuits with
acceptable manufacturing yields, or that foundries will be able
to deliver enough semiconductor devices to the combined company
on a timely basis, or at reasonable prices.
The
combined company will operate in intensely competitive
markets.
Each of LSI and Agere derive significant revenue from the sale
of integrated circuits, and LSI also operates in the storage
systems segment. These industry segments are intensely
competitive and competition is expected to increase as existing
competitors enhance their product offerings and as new
participants enter the market. The
19
competitors of LSI and Agere include many large domestic and
foreign companies that have substantially greater financial,
technical and management resources than LSI or Agere. Several
major diversified electronics companies offer custom solutions
and/or other
standard products that are competitive with the products of LSI
and Agere. Other competitors are specialized, rapidly growing
companies that sell products into the same markets that LSI or
Agere target or that the combined company will target. Some of
the customers of LSI, Agere or the combined company may also
design and manufacture products that will compete with the
products of the combined company. Neither LSI nor Agere can
provide any assurances that the price and performance of their
products will be superior relative to the products of their
competitors.
Increased competition may negatively affect the pricing, margins
and revenues of the combined company. For example, competitors
with greater financial resources may be able to offer lower
prices than the combined company, or they may offer additional
products, services or other incentives that the combined
company may not be able to match. Competitors may be in a
stronger position than the combined company to respond quickly
to new technologies and may be able to undertake more extensive
marketing campaigns. They may also make strategic acquisitions
or establish cooperative relationships among themselves or with
third parties to increase their ability to gain market share. In
addition, competitors may sell commercial quantities of products
before the combined company does so, establishing market share
and creating a market position that the combined company may not
be able to overcome once it introduces similar products in
commercial quantities.
The
combined companys target markets are characterized by
rapid technological change.
The industry segments in which each of LSI and Agere currently
operate, and in which the combined company will operate, are
characterized by rapid technological change, changes in customer
requirements, limited ability to accurately forecast future
customer orders, frequent new product introductions and
enhancements, short product cycles and evolving industry
standards. LSI and Agere believe that the combined
companys future success will depend, in part, upon its
ability to improve on existing technologies and to develop and
implement new ones, as well as upon its ability to adopt and
implement emerging industry standards in a timely manner and to
adapt products and processes to technological changes. If the
combined company is not able to successfully implement new
process technologies or to achieve volume production of new
products at acceptable yields, the operating results and
financial condition of the combined company may be adversely
affected. In addition, if the combined company fails to make
sufficient investments in research and development programs in
order to develop new and enhanced products and technologies, or
if it focuses on technologies that do not become widely adopted,
new technologies could render the current and planned products
of LSI, Agere and the combined company obsolete, resulting in
the need to change the focus of the combined companys
research and development and product strategies and disrupting
its business significantly.
In addition, the emergence of markets for integrated circuits
may be affected by factors beyond the control of LSI, Agere or
the combined company. In particular, products are designed to
conform to current specific industry standards. Customers of
LSI, Agere or the combined company may not adopt or continue to
follow these standards, which would make the combined
companys products less desirable to customers, and could
negatively affect sales. Also, competing standards may emerge
that are preferred by customers of LSI, Agere or the combined
company, which could reduce sales and require the combined
company to make significant expenditures to develop new
products. To the extent that the combined company is not able to
effectively and expeditiously adapt to new standards, the
business of the combined company may be negatively affected.
Order
or shipment cancellations or deferrals could cause the combined
companys revenue to decline or fluctuate.
Each of LSI and Agere sell, and the combined company is expected
to sell, a significant amount of products pursuant to purchase
orders that customers may cancel or defer on short notice
without incurring a significant penalty. Cancellations or
deferrals could cause the combined company to hold excess
inventory, which could adversely affect its results of
operations. If a customer cancels or defers product shipments or
refuses to accept shipped products, the combined company may
incur unanticipated reductions or delays in revenue. If a
customer does not pay for products in a timely manner, the
combined company could incur significant charges against income,
which could materially and adversely affect its results of
operations.
20
The
combined company will design and develop highly complex products
that will require significant investments.
The products of Agere and LSI are, and the products of the
combined company will be, highly complex and significant time
and expense are expected to be associated with the design,
development and manufacture of the products of the combined
company. The combined company is expected to incur substantial
research and development costs to confirm the technical
feasibility and commercial viability of products, which in the
end may not be successful.
The
combined companys products may contain
defects.
The products of LSI, Agere and the combined company may contain
undetected defects, errors or failures. These products can only
be fully tested when deployed in commercial applications and
other equipment. Consequently, customers may discover errors
after the products have been deployed. The occurrence of any
defects, errors or failures could result in:
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cancellation of orders;
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product returns, repairs or replacements;
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diversion of resources of the combined company;
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legal actions by customers or customers end users;
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increased insurance costs; and
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other losses to the combined company or to customers or end
users.
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Any of these occurrences could also result in the loss of or
delay in market acceptance of products and loss of sales, which
could negatively affect the business and results of operations
of the combined company. As the combined companys products
become even more complex in the future, this risk may intensify
over time and may result in increased expenses.
The
manufacturing facilities of the combined company will have high
fixed costs and will involve highly complex and precise
processes.
Agere owns assembly and test facilities and has a joint venture
fabrication facility and LSI has a storage systems manufacturing
facility. Operations at these facilities may be disrupted for
reasons beyond the control of LSI, Agere or the combined
company, including work stoppages, supply shortages, fire,
earthquake, tornado, floods or other natural disasters, any of
which could have a material adverse effect on the results of
operations or financial position of the combined company. In
addition, if the combined company does not experience adequate
utilization of, or adequate yields at, its manufacturing
facilities, its results of operations may be adversely affected.
The manufacture of LSIs and Ageres products involves
highly complex and precise processes, requiring production in a
clean and tightly controlled environment. In addition, the
manufacture of integrated circuits is a highly complex and
technologically demanding process. Although each of LSI and
Agere work closely with its foundry suppliers to minimize the
likelihood of reduced manufacturing yields, such foundries have,
from time to time, experienced lower than anticipated
manufacturing yields. This often occurs during the production of
new products or the installation and
start-up of
new process technologies. Poor yields from the foundry suppliers
to the combined company could result in product shortages or
delays in product shipments, which could seriously harm
relationships with customers and materially and adversely affect
the business and results of operations of the combined company.
Failure
of the combined company to qualify products or its
suppliers manufacturing lines may adversely affect results
of operations.
Some customers will not purchase any products, other than
limited numbers of evaluation units, until they qualify the
manufacturing line for the product. The combined company may not
always be able to satisfy the qualification requirements of
these customers. Delays in qualification may cause a customer to
discontinue use of non-qualified products and result in a
significant loss of revenue.
21
The
combined company will depend to a certain extent upon
third-party subcontractors to assemble, obtain packaging
materials for and test certain products.
Third-party subcontractors located in Asia assemble, obtain
packaging materials for and test certain products of LSI.
Although Agere owns and operates its own semiconductor assembly
and test facilities, the combined company will continue to
depend upon third-party subcontractors to assemble and test some
of the combined companys semiconductor products or to
perform other services for the combined company. To the extent
that the combined company does rely upon third-party
subcontractors to perform these functions, it will not be able
to control directly product delivery schedules and quality
assurance. This lack of control may result in product shortages
or quality assurance problems that could delay shipments of
products or increase manufacturing, assembly, testing or other
costs. In addition, if these third-party subcontractors are
unable to obtain sufficient packaging materials for products in
a timely manner, the combined company may experience product
shortages or delays in product shipments, which could materially
and adversely affect customer relationships and results of
operations. If any of these subcontractors experiences capacity
constraints or financial difficulties, suffers any damage to its
facilities, experiences power outages or any other disruption of
assembly or testing capacity, the combined company may not be
able to obtain alternative assembly and testing services in a
timely manner. Due to the amount of time that it usually takes
to qualify assemblers and testers, the combined company could
experience significant delays in product shipments if it is
required to find alternative assemblers or testers for such
components.
A
widespread outbreak of an illness or other health issue could
negatively affect the combined companys manufacturing,
assembly and test, design or other operations.
A widespread outbreak of an illness such as avian influenza, or
bird flu, or severe acute respiratory syndrome, or SARS, could
adversely affect the combined companys operations as well
as demand from customers. A number of countries in the
Asia/Pacific region have experienced outbreaks of bird flu
and/or SARS.
As a result of such an outbreak, businesses can be shut down
temporarily and individuals can become ill or quarantined. The
combined company will have operations in Singapore, Thailand and
China, countries where outbreaks of bird flu
and/or SARS
have occurred. If operations are curtailed because of health
issues, the combined company may need to seek alternate sources
of supply for manufacturing or other services and alternate
sources can be more expensive. Alternate sources may not be
available or may result in delays in shipments to customers
which would affect results of operations. In addition, a
curtailment of design operations could result in delays in the
development of new products. If customers businesses are
affected by health issues, they might delay or reduce purchases,
which could adversely affect results of operations.
The
combined company will procure parts and raw materials from a
limited number of domestic and foreign sources.
LSI does not maintain an extensive inventory of parts and
materials for manufacturing storage systems at its Wichita,
Kansas facility. LSI purchases, and expects that the combined
company will continue to purchase, a portion of its requirements
for parts and raw materials from a limited number of sources,
primarily from suppliers in Japan and their
U.S. subsidiaries, and obtain other material inputs on a
local basis. If the combined company has difficulty in obtaining
parts or materials in the future from their existing suppliers,
alternative suppliers may not be available, or suppliers may not
provide parts and materials in a timely manner or on favorable
terms. As a result, the combined company may be adversely
affected by delays in product shipments. If the combined company
cannot obtain adequate materials for manufacture of its
products, or if such materials are not available at reasonable
prices, there could be a material adverse impact on operating
results and financial condition.
If the
combined companys new product development and expansion
efforts are not successful, results of operations may be
adversely affected.
Each of LSI and Agere is currently developing, and LSI expects
that the combined company will continue to develop, products in
new areas and the combined company may seek to expand into
additional areas in the future. The efforts of the combined
company to develop products and expand into new areas may not
result in sales that are sufficient to recoup its investment,
and it may experience higher costs than anticipated. For
example, the combined company may not be able to manufacture
products at a competitive cost, may need to rely on new
suppliers or may
22
find that the development efforts are more costly or time
consuming than anticipated. Development of new products often
requires long-term forecasting of market trends, development and
implementation of new or changing technologies and a substantial
capital commitment. There can be no assurance that the products
that the combined company selects for investment of its
financial and engineering resources will be developed or
acquired in a timely manner or will enjoy market acceptance. In
addition, the combined companys products may support
protocols that are not widely adopted and it may have
difficulties entering markets where competitors have strong
market positions.
The
combined company may engage in acquisitions and alliances giving
rise to financial and technological risks.
The combined company may explore strategic acquisitions that
build upon or expand its library of intellectual property, human
capital and engineering talent, and increase its ability to
fully address the needs of its customers. For example, in
November 2006, LSI acquired StoreAge Networking Technologies
Ltd., a privately held software company based in Nesher, Israel,
for approximately $50 million in cash. Mergers and
acquisitions of high-technology companies bear inherent risks.
No assurance can be given that previous acquisitions of LSI or
Agere or future acquisitions by the combined company will be
successful and will not materially adversely affect the combined
companys business, operating results or financial
condition. Failure to manage growth effectively or to integrate
acquisitions could adversely affect the combined companys
operating results and financial condition.
In addition, the combined company may make investments in
companies, products and technologies through strategic alliances
and otherwise. Investment activities often involve risks,
including the need for timely access to needed capital for
investments and to invest in companies and technologies that
will contribute to the growth of the combined companys
business.
The
semiconductor industry is prone to intellectual property
litigation.
As is typical in the semiconductor industry, each of LSI and
Agere is frequently involved in disputes regarding patent and
other intellectual property rights. Each of LSI and Agere has in
the past received, and the combined company may in the future
receive, communications from third parties asserting that
certain of its products, processes or technologies infringe upon
their patent rights, copyrights, trademark rights or other
intellectual property rights, and the combined company may also
receive claims of potential infringement if it attempts to
license intellectual property to others. Defending these claims
may be costly and time consuming, and may divert the attention
of management and key personnel from other business issues.
Claims of intellectual property infringement also might require
the combined company to enter into costly royalty or license
agreements. The combined company may be unable to obtain royalty
or license agreements on acceptable terms. Resolution of whether
any of the products or intellectual property of the combined
company has infringed on valid rights held by others could have
a material adverse effect on results of operations or financial
position and may require material changes in production
processes and products.
The
combined company may not be able to adequately protect or
enforce its intellectual property rights, which could harm its
competitive position.
The combined companys success and future revenue growth
will depend, in part, on its ability to protect its intellectual
property. The combined company will primarily rely on patent,
copyright, trademark and trade secret laws, as well as
nondisclosure agreements and other methods, to protect its
proprietary technologies and processes. It is possible that
competitors or other unauthorized third parties may obtain,
copy, use or disclose proprietary technologies and processes,
despite efforts by the combined company to protect its
proprietary technologies and processes. While the combined
company will hold a significant number of patents, there can be
no assurances that any additional patents will be issued. Even
if new patents are issued, the claims allowed may not be
sufficiently broad to protect the combined companys
technology. In addition, any of LSI or Ageres existing
patents, and any future patents issued to the combined company,
may be challenged, invalidated or circumvented. As such, any
rights granted under these patents may not provide the combined
company with meaningful protection. LSI and Agere may not have,
and in the future the combined company may not have, foreign
patents or pending applications corresponding to its
U.S. patents and applications. Even if foreign patents are
granted, effective enforcement in
23
foreign countries may not be available. If the combined
companys patents do not adequately protect its technology,
competitors may be able to offer products similar to the
combined companys products. The combined companys
competitors may also be able to develop similar technology
independently or design around its patents. Some or all of
LSIs and Ageres patents have in the past been
licensed and likely will in the future be licensed to certain of
the combined companys competitors through cross-license
agreements.
A
decline in the revenue that the combined company expects to
derive from the licensing of its intellectual property could
have a significant impact on net income.
Agere generates significant revenue from, and the combined
company expects to generate significant revenue from, the
licensing of its intellectual property. The revenue generated
from the licensing of Ageres intellectual property has a
high gross margin compared to the revenue generated from the
sale of other products currently sold by Agere, and a decline in
this licensing revenue could have a significant impact on the
profitability of the combined company. The combined
companys licensing revenue is expected to come from a
limited number of transactions and the failure to complete one
or more transactions in a quarter could have a material adverse
impact on revenue and profitability.
The
combined company will conduct a significant amount of activity
outside of the United States, and will be exposed to legal,
business, political and economic risks associated with its
international operations.
Each of LSI and Agere derive, and it is expected that the
combined company will derive, a substantial portion of its
revenue from sales of products shipped to locations outside of
the United States. In addition, each of LSI and Agere
manufacture, and the combined company will manufacture, a
significant portion of its products outside of the United States
and will be dependent on
non-U.S. suppliers
for many parts and services. The combined company may also
pursue growth opportunities in sales, design and manufacturing
outside of the United States. Operations outside of the United
States are subject to a number of risks and potential costs that
could adversely affect revenue and results of operations,
including:
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political, social and economic instability;
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fluctuations in currency exchange rates;
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exposure to different legal standards, particularly with respect
to intellectual property;
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natural disasters and public health emergencies;
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nationalization of business and blocking of cash flows;
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trade and travel restrictions;
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imposition of governmental controls and restrictions;
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burdens of complying with a variety of foreign laws;
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import and export license requirements and restrictions;
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unexpected changes in regulatory requirements;
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foreign technical standards;
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difficulties in staffing and managing international operations;
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international trade disputes;
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difficulties in collecting receivables from foreign entities or
delayed revenue recognition; and
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potentially adverse tax consequences.
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The
combined company may rely on the capital markets
and/or bank
markets to provide financing.
The combined company may rely on the capital markets
and/or bank
markets to provide financing for strategic acquisitions, capital
assets needed in manufacturing facilities and other general
corporate needs. As of
24
December 31, 2006, Agere had approximately
$362 million of convertible notes outstanding and LSI had
approximately $350 million of convertible notes
outstanding. The combined company may need to seek additional
equity financing or debt financing from time to time.
Historically, each of LSI and Agere has been able to access the
capital markets and the bank markets when deemed appropriate,
but the combined company may not be able to access these markets
in the future on acceptable terms. The availability of capital
in these markets may be affected by several factors, including
geopolitical risk, the interest rate environment and the
condition of the economy as a whole. Moreover, any future equity
or equity-linked financing may dilute the equity ownership of
existing shareholders. In addition, the operating performance,
capital structure and expected future performance of the
combined company will affect the combined companys ability
to raise capital. LSI and Agere believe that the combined
companys cash, cash equivalents, short-term investments
and expected future cash from operations will be sufficient to
fund its needs in the foreseeable future.
The
combined company will utilize indirect channels of distribution
over which it will have limited control.
Financial results could be adversely affected if the combined
companys relationships with resellers or distributors were
to deteriorate or if the financial condition of these resellers
or distributors were to decline. In addition, as the combined
companys business grows, there may be an increased
reliance on indirect channels of distribution. There can be no
assurance that the combined company will be successful in
maintaining or expanding these indirect channels of
distribution. This could result in the loss of certain sales
opportunities. Furthermore, the partial reliance on indirect
channels of distribution may reduce visibility with respect to
future business, thereby making it more difficult to accurately
forecast orders.
The
combined company may not be able to collect all of its accounts
receivable from customers.
A majority of the trade receivables of LSI and Agere have been,
and it is expected that a majority of the trade receivables of
the combined company will be, derived from sales of products to
large multinational computer, communication, networking, storage
and consumer electronics manufacturers. None of LSI, Agere or
the combined company can provide any assurances that its
accounts receivable balances will be paid on time or at all.
The
trading price of the combined companys stock may be
affected by factors different from those currently affecting the
prices of LSI and Agere common stock.
Upon completion of the merger, holders of Agere common stock
will become holders of the common stock of LSI. The results of
operations of the combined company, as well as the trading price
of LSIs common stock after the merger, may be affected by
factors different from those currently affecting Ageres
results of operations and the trading price of Ageres
common stock. For a discussion of the businesses of LSI and
Agere and of certain factors to consider in connection with
those businesses, see the documents incorporated by reference in
this joint proxy statement/prospectus and referred to under
Where You Can Find More Information.
The
price of the combined companys securities may be subject
to wide fluctuations.
The stock of both LSI and Agere has experienced substantial
price volatility, particularly as a result of quarterly
variations in results, the published expectations of analysts
and announcements by LSI, Agere and their respective
competitors, and the stock of LSI after completion of the merger
is likely to be subject to similar volatility. Many of the
markets from which the combined company expects to derive a
substantial portion of revenues are highly cyclical, and the
combined company may experience declines in its revenue that are
primarily related to industry conditions and not its products.
In addition, the stock market has experienced price and volume
fluctuations that have affected the market price of many
technology companies and that have often been unrelated to the
operating performance of such companies. The price of LSIs
securities may also be affected by general global, economic and
market conditions. While LSI and Agere cannot predict the
individual effect that these and other factors may have on the
price of the LSIs securities following completion of the
merger, these factors, either individually or in the aggregate,
could result in significant variations in LSIs stock price
during any given period of time. Fluctuations in LSIs
stock price after the completion of the merger may also affect
the price of outstanding convertible securities of Agere and
LSI, and the likelihood of the convertible securities being
converted into cash or equity. If LSIs stock price is
below the conversion price of the Agere or LSI convertible notes
on the date of maturity, they may not convert into equity and
LSI may be required to redeem the outstanding convertible
securities
25
for cash. However, in the event they do not convert to equity,
LSI and Agere believe that the combined companys cash
position and expected future operating cash flows will be
adequate to meet these obligations as they mature.
In the past, securities class action litigation often has been
brought against a company following periods of volatility in the
market price of its securities. Companies in technology
industries are particularly vulnerable to this kind of
litigation due to the high volatility of their stock prices.
Accordingly, the combined company may in the future be the
target of securities litigation. Any securities litigation could
result in substantial costs and could divert the attention and
resources of the combined companys management.
Future
changes in financial accounting standards or practices or
existing taxation rules or practices may cause adverse
unexpected fluctuations and affect reported results of
operations.
Financial accounting standards in the United States are
constantly under review and may be changed from time to time.
The combined company would be required to apply these changes.
Once implemented, these changes could result in material
fluctuations in the results of operations of the combined
company
and/or the
way in which such results of operations are reported. For
example, on January 1, 2006, LSI adopted SFAS 123-R.
In accordance with the modified prospective transition method,
LSI began recognizing compensation expense for all share-based
awards granted on or after January 1, 2006, plus unvested
awards granted prior to January 1, 2006. The adoption of
SFAS 123-R had a significant impact on LSIs operating
results as share-based compensation expense is charged directly
against reported earnings. Numerous judgments and estimates are
involved in the calculation of this expense and changes to those
estimates or different judgments could have a significant effect
on LSIs reported earnings.
Similarly, the combined company will be subject to taxation in
the United States and a number of foreign jurisdictions. Rates
of taxation, definitions of income, exclusions from income, and
other tax policies are subject to change over time. Changes in
tax laws in a jurisdiction in which the combined company has
reporting obligations could have a material impact on results of
operations.
The
combined company will face uncertainties related to the
effectiveness of internal controls.
Public companies in the United States are required to review
their internal controls over financial reporting under
Section 404 of the Sarbanes-Oxley Act of 2002. It should be
noted that any system of controls, however well designed and
operated, can provide only reasonable, and not absolute,
assurance that the objectives of the system are met. In
addition, the design of any control system is based in part upon
certain assumptions about the likelihood of future events.
Because of these and other inherent limitations of control
systems, there can be no assurance that any design will achieve
its stated goal under all potential future conditions,
regardless of how remote.
Although each of LSIs and Ageres management has
determined, and each of their respective independent registered
public accounting firms have attested, that their respective
internal controls were effective as of as of the end of their
most recent fiscal years, there can be no assurance that the
integration of LSI and Agere, and their respective internal
control systems and procedures, will not result in or lead to a
future material weakness in the combined companys internal
controls, or that the combined company or its independent
registered public accounting firm will not identify a material
weakness in the combined companys internal controls in the
future. A material weakness in internal controls over financial
reporting would require management and the combined
companys independent public accounting firm to evaluate
its internal controls as ineffective. If internal controls over
financial reporting are not considered adequate, the combined
company may experience a loss of public confidence, which could
have an adverse effect on its business and stock price.
Internal
control deficiencies or weaknesses that are not yet identified
could emerge.
Over time the combined company may identify and correct
deficiencies or weaknesses in its internal controls and, where
and when appropriate, report on the identification and
correction of these deficiencies or weaknesses. However, the
internal control procedures can provide only reasonable, and not
absolute, assurance that deficiencies or weaknesses are
identified. Deficiencies or weaknesses that are not yet
identified by LSI or Agere could emerge and the identification
and correction of these deficiencies or weaknesses could have a
material impact on the results of operations for the combined
company.
26
THE
SPECIAL MEETING OF LSI STOCKHOLDERS
Date,
Time and Place
The LSI special meeting of LSI stockholders will be held at
10:00 a.m., local time, on March 29, 2007 at
1621 Barber Lane, Milpitas, California.
Check-in will begin at 9:30 a.m. and LSI stockholders
should allow ample time for the check-in procedures.
Item of
Business
At the LSI special meeting, LSI stockholders will be asked to
consider and vote upon a proposal to approve the issuance of
shares of LSI common stock in connection with the merger as more
fully described in this joint proxy statement/prospectus. LSI
currently does not contemplate that any other matters will be
presented at the LSI special meeting.
Recommendation
of the LSI Board of Directors
After careful consideration, the LSI board of directors
unanimously determined that the merger agreement and the
transactions contemplated by the merger agreement are advisable
and in the best interests of the LSI stockholders and has
unanimously approved the merger agreement. The LSI board of
directors recommends that the LSI stockholders vote
FOR the proposal to approve the issuance of shares
of LSI common stock in connection with the merger.
Admission
to the Special Meeting
Only LSI stockholders, including joint holders, as of the close
of business on February 2, 2007, and other persons holding
valid proxies for the special meeting are entitled to attend the
LSI special meeting. LSI stockholders and their proxies should
be prepared to present photo identification. In addition, LSI
stockholders who are record holders will have their ownership
verified against the list of record holders as of the record
date prior to being admitted to the meeting. LSI stockholders
who are not record holders but hold shares through a broker or
nominee (i.e., in street name) should provide proof of
beneficial ownership on the record date, such as their most
recent account statement prior to February 2, 2007, or
other similar evidence of ownership. Anyone who does not provide
photo identification or comply with the other procedures
outlined above upon request will not be admitted to the special
meeting.
Method of
Voting; Record Date; Stock Entitled to Vote; Quorum
LSI stockholders are being asked to vote both shares held
directly in their name as stockholders of record and any shares
they hold in street name as beneficial owners.
Shares held in street name are shares held in a
stock brokerage account or shares held by a bank or other
nominee.
The method of voting differs for shares held as a record holder
and shares held in street name. Record holders will receive
proxy cards. Holders of shares in street name will
receive voting instruction cards in order to instruct their
brokers or nominees how to vote.
Proxy cards and voting instruction cards are being solicited on
behalf of the LSI board of directors from LSI stockholders in
favor of the proposal to approve the issuance of shares of LSI
common stock in connection with the merger.
Stockholders may receive more than one set of voting materials,
including multiple copies of this joint proxy
statement/prospectus and multiple proxy cards or voting
instruction cards. For example, stockholders who hold shares in
more than one brokerage account may receive a separate voting
instruction card for each brokerage account in which shares are
held. Stockholders of record whose shares are registered in more
than one name will receive more than one proxy card. In
addition, Agere is also soliciting votes for its annual meeting
and stockholders who own shares of both LSI and Agere will also
receive a proxy or voting instruction card from Agere. Please
note that a vote for the issuance of shares in connection with
the merger for the LSI special meeting will not constitute a
vote for the proposal to adopt the merger agreement for the
Agere special meeting, and vice versa. Therefore, the LSI board
of directors urges LSI stockholders to complete, sign, date and
return each proxy card and voting instruction card for the LSI
special meeting they receive.
27
Only stockholders of LSI at the close of business on
February 2, 2007, the record date for the LSI special
meeting, are entitled to receive notice of, and vote at, the LSI
special meeting. On the record date, approximately
404,235,335 shares of LSI common stock were issued and
outstanding. Stockholders of LSI common stock on the record date
are each entitled to one vote per share of LSI common stock on
the proposal to approve the issuance of shares of LSI common
stock in connection with the merger.
A quorum of stockholders is necessary to have a valid meeting of
LSI stockholders. A majority of the shares of LSI common stock
issued and outstanding and entitled to vote on the record date
must be present in person or by proxy at the LSI special meeting
in order for a quorum to be established.
Abstentions and broker non-votes count as present
for establishing the quorum described above. A broker
non-vote may occur on an item when a broker is not
permitted to vote on that item without instructions from the
beneficial owner of the shares. Shares held by LSI in its
treasury do not count toward the quorum.
Adjournment
and Postponement
LSIs bylaws provide that any adjournment or postponement
of the LSI special meeting may be made at any time by the
chairman of the meeting or a vote of stockholders holding a
majority of shares of LSI common stock represented at the LSI
special meeting, either in person or by proxy, whether or not a
quorum exists, without further notice other than by an
announcement made at the special meeting. LSIs bylaws also
provide that no matter may be brought before a special meeting
which is not stated in the notice of the special meeting.
Required
Vote
Under the applicable rules of the New York Stock Exchange, the
issuance of shares of LSI common stock in connection with the
merger requires an affirmative vote of a majority of the votes
cast at the LSI special meeting, provided that the total votes
cast on the proposal represent over 50% of all shares of LSI
common stock entitled to vote on the proposal.
Under the applicable rules of the New York Stock Exchange,
brokers and other nominees are prohibited from giving a proxy to
vote their customers shares with respect to the proposal
to be voted on at the LSI special meeting in the absence of
instructions from their customers. For purposes of determining
whether LSI has received the affirmative vote of a majority of
the votes cast at the LSI special meeting, broker
non-votes and abstentions will not be considered
votes cast and will therefore have no effect on the outcome of
the proposal.
For purposes of determining whether the total votes cast
represent over 50% of all shares of LSI common stock entitled to
vote on the proposal, broker non-votes and
abstentions will be considered entitled to vote and will
therefore make it more difficult to meet this requirement.
Share
Ownership of Directors and Executive Officers of LSI
At the close of business on the record date for the LSI special
meeting, directors and executive officers of LSI beneficially
owned and were entitled to vote approximately 1.8% of the shares
of LSI common stock outstanding on that date.
Voting
Procedures
Submitting
Proxies or Voting Instructions
Whether LSI stockholders hold shares of LSI common stock
directly as stockholders of record or in
street name, LSI stockholders may direct the
voting of their shares without attending the LSI special
meeting. LSI stockholders may vote by granting proxies or, for
shares held in street name, by submitting voting instructions to
their brokers or nominees.
Record holders of shares of LSI common stock may submit proxies
by completing, signing and dating their proxy cards for the LSI
special meeting and mailing them in the accompanying
pre-addressed envelopes. LSI stockholders who hold shares in
street name may vote by mail by completing, signing
and dating the voting instruction cards for the LSI special
meeting provided by their brokers or nominees and mailing them
in the accompanying pre-addressed envelopes.
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If LSI stockholders of record do not include instructions on how
to vote their properly signed proxy cards for the LSI special
meeting, their shares will be voted FOR the proposal
to approve the issuance of shares of LSI common stock in
connection with the merger, and in the discretion of the proxy
holders on any other business that may properly come before the
LSI special meeting or any adjournment or postponement thereof.
If LSI stockholders holding shares of LSI common stock in
street name do not provide voting instructions,
their shares will not be considered to be votes cast on the
proposal.
Stockholders of record of LSI common stock may also vote in
person at the LSI special meeting by submitting their proxy
cards or by filling out a ballot at the special meeting.
If shares of LSI common stock are held by LSI stockholders in
street name, those LSI stockholders may not vote
their shares in person at the LSI special meeting unless they
bring a signed proxy from the record holder giving them the
right to vote their shares and fill out a ballot at the special
meeting.
Revoking
Proxies or Voting Instructions
LSI stockholders may change their votes at any time prior to the
vote at the LSI special meeting. LSI stockholders of record may
change their votes by granting new proxies bearing a later date
(which automatically revoke the earlier proxies) or by attending
the LSI special meeting and voting in person. Attendance at the
LSI special meeting will not cause previously granted proxies to
be revoked, unless LSI stockholders specifically so request. For
shares held in street name, LSI stockholders may
change their votes by submitting new voting instructions to
their brokers or nominees or by attending the LSI special
meeting and voting in person, provided that they have obtained a
signed proxy from the record holder giving them the right to
vote their shares.
Proxy
Solicitation
LSI is soliciting proxies for the LSI special meeting from LSI
stockholders and Agere is soliciting proxies for the Agere
annual meeting from its stockholders. Each company will bear its
own fees and costs associated with printing and filing this
joint proxy statement/prospectus and the registration statement
on
Form S-4,
of which it forms a part, that has been filed by LSI with the
Securities and Exchange Commission.
Other than the costs shared with Agere, the cost of soliciting
proxies from LSI stockholders will be paid by LSI.
In addition to the mailing of these proxy materials, the
solicitation of proxies or votes may be made in person or by
telephone, facsimile, telegram or electronic means by LSIs
directors, officers and employees, who will not receive any
additional compensation for such solicitation activities.
LSI has retained Georgeson Inc. to assist it in the solicitation
of proxies.
Contact
for Questions and Assistance in Voting
Any LSI stockholder who has a question about the merger, the
issuance of shares in connection with the merger, or how to vote
or revoke a proxy, or who wishes to obtain additional copies of
this joint proxy statement/prospectus, should contact:
Georgeson Inc.
17 State Street, 10th Floor
New York, NY 10004
Toll Free:
(866) 783-6820
Banks and Brokerage Firms:
(212) 440-9800
If you need additional copies of this joint proxy
statement/prospectus or voting materials, you should contact
Georgeson Inc. as described above or send an
e-mail to
investorrelations@lsi.com.
Other
Matters
LSI is not aware of any other business to be acted upon at the
LSI special meeting. LSIs bylaws also provide that no
matter may be brought before a special meeting which is not
stated in the notice of the special meeting. If, however, other
matters are properly brought before the LSI special meeting or
any adjournment or postponement of the LSI special meeting, the
persons named as proxy holders, Abhijit Y. Talwalkar, Bryon Look
and Andrew S. Hughes, will have discretion to act on those
matters, or to adjourn or postpone the LSI special meeting.
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THE AGERE
ANNUAL MEETING
Date,
Time and Place of Annual Meeting
The Agere annual meeting is scheduled to be held at the Edward
Nash Theater at the Raritan Valley Community College, Route 28W
and Lamington Road, North Branch, New Jersey 08876, on
March 29, 2007, at 9:00 a.m., local time.
Agere will also webcast its annual meeting. Stockholders can
access the webcast at
http://www.agere.com/webcast.
Information on the Agere website, other than this joint
registration statement/prospectus and form of proxy, is not part
of the proxy soliciting materials.
Purpose
of Annual Meeting
The purpose of the annual meeting is to:
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consider and vote on a proposal to adopt the merger agreement;
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elect three directors to serve until the next annual meeting of
stockholders and until their successors are elected and
qualified or until the consummation of the merger;
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re-approve the Short Term Incentive Plan;
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ratify the Audit Committees selection of
PricewaterhouseCoopers LLP as Ageres independent
registered public accounting firm for fiscal 2007; and
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transact such other business as may properly come before the
meeting and any postponement or adjournment thereof.
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The Agere board of directors recommends that Agere
stockholders vote FOR the proposal to adopt the
merger agreement. For the reasons for this recommendation, see
The Merger Consideration of the Merger by the
Agere Board of Directors Recommendation of the Agere
Board of Directors. The Agere board of directors also
recommends that you vote FOR each of the director
nominees listed under the heading Election of Agere
Directors, FOR the re-approval of Ageres
Short Term Incentive Plan and FOR the ratification
of the selection of PricewaterhouseCoopers LLP as Ageres
independent registered public accounting firm for fiscal 2007 at
the annual meeting.
Who Can
Vote at the Agere Annual Meeting
Only Agere stockholders of record at the close of business on
February 2, 2007, the record date for the Agere annual
meeting, will be entitled to notice of, and to vote at, the
Agere annual meeting or any adjournments or postponements of the
Agere annual meeting.
On the record date, there were 169,422,222 shares of common
stock outstanding. Each share of common stock is entitled to one
vote on each matter properly brought before the meeting. Shares
that are held in Ageres treasury are not considered
outstanding or entitled to vote at the Agere annual meeting.
In accordance with Delaware law, a list of stockholders entitled
to vote at the meeting will be available at the meeting, and for
10 days prior to the meeting, at 1110 American Parkway NE,
Allentown, Pennsylvania 18109, between the hours of 9 a.m.
and 4 p.m., local time.
Agere stockholders will be admitted to the Agere annual meeting
beginning at 8:00 a.m., local time, on March 29, 2007.
You will need your admission ticket as well as a form of
personal identification to enter the meeting. The procedure for
obtaining an admission ticket depends on whether you are a
record holder of Agere stock or if your Agere shares
are held in street name. You are a record holder if
you hold your Agere shares in an account with Ageres
transfer agent, Computershare Investor Services, LLC, or if you
have an Agere stock certificate. Your Agere shares are held in
street name if you hold them in an account with a
bank, broker or other record holder.
If you are an Agere stockholder of record and received this
joint proxy statement/prospectus by mail, you will find an
admission ticket in the proxy materials that were sent to you.
If you are an Agere stockholder of
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record and received an
e-mail
describing how to view this joint proxy statement/prospectus
over the Internet and want to attend the meeting in person,
please write to Agere Systems Inc., 1110 American Parkway NE,
Room 10A-301C,
Allentown, Pennsylvania 18109, Attention: Response Center, or
call
1-800-372-2447,
to obtain an admission ticket.
If your Agere shares are held in street name (in the name of a
bank, broker or other nominee) and you plan to attend the Agere
annual meeting, you can obtain an admission ticket in advance by
sending a written request, along with proof of ownership, such
as a recent bank or brokerage account statement, to Agere
Systems Inc., 1110 American Parkway NE,
Room 10A-301C,
Allentown, Pennsylvania 18109, Attention: Response Center.
If you plan to attend the Agere annual meeting, please retain
the admission ticket. The admission ticket will admit you to the
meeting. If you arrive at the meeting without an admission
ticket, Agere will admit you if it is able to verify that you
are an Agere stockholder.
Vote
Required for Approval
Quorum
The holders of shares possessing a majority of all the votes
that could be cast on every matter that is to be voted on must
be present, in person or by proxy, in order to transact business
at the meeting.
Required
Vote for Adoption of Merger Agreement
(Proposal 1)
The affirmative vote of the holders of a majority of the
outstanding shares of Agere common stock is required to adopt
the merger agreement.
Required
Vote for Election of Directors (Proposal 2)
Directors will be elected by a plurality of votes cast. That is,
the nominees receiving the greatest number of votes will be
elected.
Required
Vote for All Other Matters (Proposals 3 and
4)
The affirmative vote of the holders of a majority of the common
stock present in person or represented by proxy and entitled to
vote at the Agere annual meeting is required to re-approve the
Short Term Incentive Plan and to ratify the Audit
Committees selection of PricewaterhouseCoopers LLP as
Ageres independent registered public accounting firm for
fiscal 2007.
Effect
of Withheld Votes and Abstentions
All shares of Agere common stock represented at the Agere annual
meeting, but not voting, including abstentions and broker
non-votes, will be treated as present for purposes of
determining the presence or absence of a quorum for all matters
for consideration at the Agere annual meeting.
In the election of directors, Agere stockholders may withhold
their vote. Withheld votes will be excluded from the vote and
will have no effect on the outcome. Agere stockholders may vote
to abstain on each of the other proposals. If you
vote to abstain, or do not vote, it will have the
same effect as a vote against the proposal to adopt the merger
agreement. If you vote to abstain it will have the
same effect as a vote against the proposal to re-approve the
Agere Short Term Incentive Plan and the proposal to ratify the
selection of PricewaterhouseCoopers LLP as Ageres
independent registered public accounting firm for fiscal 2007.
Broker non-votes, if any, will not be counted for
purposes of the proposal to
re-approve
the Agere Short-Term Incentive Plan or the proposal to ratify
the selection of PricewaterhouseCoopers LLP as Ageres
independent registered public accounting firm for fiscal 2007.
If Agere stockholders return a proxy but do not indicate how to
vote, the Agere common stock represented by such proxy will be
voted in favor of all matters for consideration at the Agere
annual meeting.
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Adjournments
If a quorum is not present at the Agere annual meeting, the
meeting may be adjourned from time to time until a quorum is
present. In addition, adjournments of the Agere annual meeting
may be made for the purpose of soliciting additional proxies in
favor of the proposals. However, no proxy that is voted against
a proposal described in this joint proxy statement/prospectus
will be voted in favor of adjournment of the Agere annual
meeting for the purpose of soliciting additional proxies.
Proxies
and Voting Procedures
You can vote your shares by completing and returning a proxy
card or, if your shares are held in street name, a voting
instruction form. Most stockholders can also vote over the
Internet or by telephone. If Internet and telephone voting are
available to you, you can find voting instructions in the
materials accompanying this joint proxy statement/prospectus.
The Internet and telephone voting facilities will close at
11:59 p.m. Eastern Daylight Time on March 28, 2007.
Please be aware that if you vote over the Internet, you may
incur costs such as telephone and Internet access charges for
which you will be responsible. If you are a participant in
Ageres 401(k) plan, your voting instructions must be
received by 11:59 p.m. Eastern Daylight Time on
March 26, 2007.
You can revoke your proxy (including an Internet or telephone
vote) at any time before it is exercised by timely delivery of a
properly executed, later-dated proxy or by voting in person at
the meeting.
The method by which you vote will in no way limit your right to
vote at the meeting if you later decide to attend in person. If
your shares are held in street name, you must obtain a proxy,
executed in your favor, from your broker or other holder of
record, to be able to vote at the meeting.
All shares entitled to vote and represented by properly
completed proxies received prior to the meeting and not revoked
will be voted at the meeting in accordance with your
instructions. If you return a signed proxy card without
indicating how your shares should be voted on a matter and do
not revoke your proxy, the shares represented by your proxy will
be voted as the Agere board of directors recommends and
therefore FOR the adoption of the merger agreement,
FOR each of the director nominees listed under the
heading Election of Agere Directors, FOR
the re-approval of Ageres Short Term Incentive Plan and
FOR the ratification of the selection of
PricewaterhouseCoopers LLP as Ageres independent
registered public accounting firm for fiscal 2007.
If you hold your shares through a broker, your shares may be
voted even if you do not vote or attend the annual meeting.
Under the rules of the New York Stock Exchange, member brokers
who do not receive instructions from beneficial owners will be
allowed to vote on (1) the proposal to ratify the Audit
Committees selection of PricewaterhouseCoopers LLP as
Ageres independent registered public accounting firm for
fiscal 2007 and (2) the proposal to re-approve the Short
Term Incentive Plan. Broker non-votes, if any, will
have the same effect as votes cast against the proposal to adopt
the merger agreement.
If you hold shares through Ageres 401(k) plan and do not
vote, those shares will be voted in the same proportion as
shares in the plan that are voted by plan participants.
If any other matters are properly presented at the annual
meeting for consideration, including, among other things,
consideration of a motion to adjourn the meeting to another time
or place, the individuals named as proxies will have discretion
to vote on those matters according to their best judgment to the
same extent as the person delivering the proxy would be entitled
to vote. If the annual meeting is postponed or adjourned, your
proxy will remain valid and may be voted at the postponed or
adjourned meeting. You still will be able to revoke your proxy
until it is voted. At the date this joint proxy
statement/prospectus went to press, Agere did not know of any
matters to be presented at the annual meeting other than those
described in this joint proxy statement/prospectus.
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Revoking
a Proxy
You may revoke your proxy at any time before it is exercised by
timely delivering a properly executed, later-dated proxy
(including by voting over the Internet or telephone) or by
voting by ballot at the Agere annual meeting. Simply attending
the Agere annual meeting without voting will not revoke your
proxy.
Shares Held
in Street Name
If your shares of Agere common stock are held in an account at a
broker, bank or other nominee and you wish to vote, you must
return your instructions to the broker, bank or other nominee.
If you own shares of Agere common stock through a broker, bank
or other nominee and attend and vote at the Agere annual
meeting, you should bring a letter from your broker, bank or
other nominee identifying you as the beneficial owner of such
shares of Agere common stock and authorizing you to vote.
Tabulation
of Votes
Agere has appointed IVS Associates, Inc. to serve as Inspector
of Election for the Agere annual meeting. Automatic Data
Processing, Inc. will independently tabulate affirmative and
negative votes and abstentions.
Dissenters
Rights of Appraisal
Holders of Agere common stock will not have any appraisal rights
under the Delaware General Corporation Law or under Ageres
certificate of incorporation in connection with the merger, and
neither Agere nor LSI will independently provide holders of
Agere common stock with any such rights.
How You
Can Reduce the Number of Copies of Our Proxy Materials You
Receive
The Securities and Exchange Commission has rules that permit us
to deliver a single copy of our proxy statement and annual
report on
Form 10-K
to stockholders sharing the same address. This process, called
householding, allows Agere to reduce the amount of material
printed and mail.
Agere has implemented householding for all stockholders who
share the same last name and address and, for shares held in
street name, where the shares are held through the
same nominee (that is, all accounts are at the same brokerage
firm), so that they are receiving only one copy of Ageres
proxy statement and annual report on
Form 10-K
per address. If you would like to receive a separate copy of
this years proxy statement and annual report on
Form 10-K,
please write to Agere Systems Inc., 1110 American Parkway NE,
Room 10A-301C,
Allentown, Pennsylvania 18109, Attention: Response Center, or
call at
1-800-372-2447.
If you share the same last name and address with other Agere
stockholders and would like to start or stop householding for
your account, you can call
1-800-542-1061
or write to Householding Department, 51 Mercedes Way, Edgewood,
NY 11717, including your name, the name of your broker or other
holder of record and your account number(s). If you consent to
householding, your election will remain in effect until you
revoke it. If you revoke your consent, Agere will send you
separate copies of documents mailed at least 30 days after
receipt of your revocation.
If you would like to view future proxy statements and annual
reports over the Internet instead of receiving paper copies, you
can elect to do so either by voting at http://www.proxyvote.com
or by visiting
http://www.investordelivery.com.
Your election to view these documents over the Internet will
remain in effect until you revoke it. Please be aware that if
you choose to access these materials over the Internet, you may
incur costs such as telephone and Internet access charges for
which you will be responsible. If you choose to view future
proxy statements and annual reports over the Internet, next year
you will receive an
e-mail with
instructions on how to view those materials and vote.
Allowing Agere to household annual meeting materials or electing
to view them electronically will help save on the cost of
printing and distributing these materials.
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Cost of
Proxy Distribution and Solicitation
Agere will pay the expenses of the preparation of the proxy
materials and the solicitation of proxies. Proxies may be
solicited on behalf Agere in person or by telephone,
e-mail,
facsimile or other electronic means by directors, officers or
employees of Agere, who will receive no additional compensation
for soliciting. Agere has engaged The Proxy Advisory Group, LLC
to assist in the solicitation of proxies and to provide related
informational support, for a fee of $20,000 plus reimbursement
of expenses. In accordance with the regulations of the
Securities and Exchange Commission and the New York Stock
Exchange, Agere will reimburse brokerage firms and other
custodians, nominees and fiduciaries for their expenses incurred
in sending proxies and proxy materials to beneficial owners of
Agere Systems stock.
Agere
Fiscal Year and Common Stock Reclassification
Ageres fiscal year begins on October 1 and ends on
September 30. References in this joint proxy
statement/prospectus to the year 2006 or fiscal 2006 with
respect to Agere refer to the
12-month
period from October 1, 2005 through September 30,
2006. In May 2005, Agere reclassified its Class A common
stock and Class B common stock into a new, single class of
common stock, and effected a
1-for-10
reverse stock split. Information regarding Agere in this joint
proxy statement/prospectus has been adjusted to reflect these
transactions.
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GOVERNANCE
OF AGERE
Pursuant to the Delaware General Corporation Law and
Ageres by-laws, Ageres business, property and
affairs are managed by or under the direction of the Agere board
of directors. The Agere board of directors currently has eight
members.
The Agere board of directors has three standing committees:
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The Audit Committee, the members of which are: Thomas P. Salice
(Chair), Richard S. Hill and Harold A. Wagner.
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The Compensation Committee, the members of which are: Harold A.
Wagner (Chair), Arun Netravali, Thomas P. Salice and Rae F.
Sedel.
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The Nominating/Corporate Governance Committee, the members of
which are: Rae F. Sedel (Chair), Arun Netravali and Harold
A. Wagner.
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The Agere board of directors has determined that all the
directors other than Mr. Clemmer, including those who serve
on these committees, are independent for purposes of
Section 303A of the Listed Company Manual of the New York
Stock Exchange, and that the members of the Audit Committee are
also independent for purposes of
Section 10A(m)(3) of the Securities Exchange Act of 1934.
The Agere board of directors based these determinations
primarily on a review of the responses of the directors and
executive officers to questions regarding employment and
compensation history, affiliations and family and other
relationships and on discussions with the directors. The Agere
board of directors also reviewed the relationships between Agere
and companies with which its directors are affiliated.
The Agere board of directors has adopted a charter for each of
the three standing committees and corporate governance
guidelines that address the
make-up and
functioning of the Agere board of directors. The Agere board of
directors has also adopted a code of conduct that applies to all
of its employees, officers and directors. Agere stockholders can
find links to these materials on the Agere website at:
http://www.agere.com/governance. Agere stockholders can also
obtain this information in print by writing to Agere Systems
Inc., 1110 American Parkway NE,
Room 10A-301C,
Allentown, Pennsylvania 18109, Attention: Response Center, or by
calling
1-800-372-2447.
During fiscal 2006, the Agere board of directors held twelve
meetings and the committees held a total of twenty-two meetings.
None of the directors attended fewer than 75% of the total
number of meetings of the Agere board of directors and
committees of the Agere board of directors of which he or she
was a member during fiscal 2006. At least quarterly, the
non-management directors meet in private session without members
of management. These sessions are presided over by the Chairman
of Ageres board of directors, Mr. Wagner. If Agere
stockholders would like to communicate directly with
Mr. Wagner or any of the other non-management directors,
follow the instructions set forth in the section below entitled
Communications with Directors.
Audit
Committee
The Audit Committee focuses its efforts on the following three
areas:
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The adequacy of Ageres internal controls and financial
reporting process and the integrity of its financial statements.
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The performance of the internal auditors and the qualifications,
independence and performance of the independent auditors.
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Ageres compliance with legal and regulatory requirements.
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The Audit Committee meets periodically with management to
consider the adequacy of Ageres internal controls and the
financial reporting process. It also discusses these matters
with Ageres independent auditors and with appropriate
company financial personnel. The committee reviews Ageres
financial statements and discusses them with management and the
independent auditors before those financial statements are filed
with the Securities and Exchange Commission. The committee met
ten times in fiscal 2006.
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The committee regularly meets privately with the independent
auditors, has the sole authority to retain and dismiss the
independent auditors and periodically reviews their performance
and independence from management. The independent auditors have
unrestricted access and report directly to the committee.
Audit Committee Financial Expert. The Agere
board of directors has determined that the Chairman of the
committee, Mr. Salice, is an audit committee
financial expert, as that term is defined in
Item 401(h) of
Regulation S-K
under the Securities Exchange Act of 1934. In making this
determination, the Agere board of directors considered
Mr. Salices educational background and his business
experience, which is described below under Election of
Directors. The Agere board of directors has also
determined that Mr. Salice is independent for
purposes of Section 303A of the New York Stock Exchange
Listed Company Manual and Section 10A(m)(3) of the
Securities Exchange Act of 1934.
Nominating/Corporate
Governance Committee
The responsibilities of the Nominating/Corporate Governance
Committee include:
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Identifying, evaluating and recommending to the Agere board of
directors, prospective nominees for Director.
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Periodically reviewing Ageres corporate governance
guidelines.
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Periodically reviewing the performance of the Agere board of
directors and its members and making recommendations to the
Agere board of directors concerning the number, function and
composition of the committees of the Agere board of directors.
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Making recommendations to the Agere board of directors from time
to time as to matters of corporate governance.
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The committee met five times in fiscal 2006.
The Agere board of directors believes that it should be
comprised of directors with varied, complementary backgrounds,
and that directors should, at a minimum, have expertise that may
be useful to the company. Directors should also possess the
highest personal and professional ethics and should be willing
and able to devote the required amount of time to company
business.
When considering candidates for director, the committee takes
into account a number of factors, including the following:
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Whether the candidate has relevant business experience.
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Judgment, skill, integrity and reputation.
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Existing commitments to other businesses.
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Independence from management.
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Whether the candidates election would be consistent with
our corporate governance guidelines.
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Potential conflicts of interest with other pursuits, including
any relationship between the candidate and any customer,
supplier or competitor of Agere.
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Legal considerations such as antitrust issues.
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Corporate governance background.
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Financial and accounting background, to enable the committee to
determine whether the candidate would be suitable for Audit
Committee membership.
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Executive compensation background, to enable the committee to
determine whether the candidate would be suitable for
Compensation Committee membership.
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The size and composition of the existing board of directors.
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The committee will consider candidates for director suggested by
stockholders applying the criteria for candidates described
above and considering the additional information referred to
below. Stockholders wishing to suggest a candidate for director
should write to the Corporate Secretary, at the address
indicated below, and include:
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A statement that the writer is a stockholder and is proposing a
candidate for consideration by the committee.
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The name of and contact information for the candidate.
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A statement of the candidates business and educational
experience.
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Information regarding each of the factors listed above, other
than the factor regarding board size and composition, sufficient
to enable the committee to evaluate the candidate.
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Detailed information about any relationship or understanding
between the proposing stockholder and the candidate.
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A statement that the candidate is willing to be considered and
willing to serve as a director if nominated and elected.
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Before nominating a sitting director for re-election at an
annual meeting, the committee will also consider the
directors performance on the Agere board of directors.
When seeking candidates for director, the committee may solicit
suggestions from incumbent directors, management or others. In
fiscal 2006, the committee also retained an unaffiliated search
firm to identify additional director candidates and to provide
the committee background information on those candidates. After
conducting an initial evaluation of a candidate, the committee
will interview the candidate if it believes the candidate might
be suitable to be a director. The committee may also ask the
candidate to meet with management. If the committee believes a
candidate would be a valuable addition to the Agere board of
directors, it will recommend to the full board that
candidates election.
This year, Mr. Mancuso, who was appointed a director by the
Agere board of directors in July 2006 and Mr. Wilska, who
was appointed a director by the Agere board of directors in
December 2005, are standing for election by the stockholders for
the first time. Mr. Mancuso was recommended to the Agere
board of directors by an executive search firm that the
Nominating/Corporate Governance Committee had retained to help
it identify individuals whose skills and experience might make
them valuable additions to the Agere board of directors. The
Nominating/Corporate Governance committee believed that the
Agere board of directors would benefit from
Mr. Mancusos experience as the chief financial
officer of a public company. Mr. Wilska was recommended to
the Agere board of directors by a non-management director, who
believed that the Agere board of directors would benefit from
Mr. Wilskas experience in the mobile phone industry.
Under Ageres by-laws, nominations for Director may be made
only by or at the direction of the Agere board of directors, or
by a stockholder of record at the time of giving notice who is
entitled to vote and delivers written notice along with the
additional information and materials required by the by-laws to
Ageres Corporate Secretary not less than 45 days nor
more than 75 days prior to the first anniversary of the
record date for the preceding years annual meeting. For
the annual meeting in the year 2008, in the event the merger is
not completed, Agere must receive this notice on or after
November 19, 2007, and on or before December 19, 2007.
Agere stockholders can obtain a copy of the full text of the
by-law provision by writing to Ageres Corporate Secretary,
1110 American Parkway NE, Allentown, Pennsylvania 18109.
Compensation
Committee
The Compensation Committee is responsible for setting executive
officer compensation, for making recommendations to the full
Agere board of directors concerning director compensation and
for general oversight for the compensation and benefit programs
for other employees. The committee met seven times in fiscal
2006.
Compensation
of Directors
Each of Ageres outside directors, that is, any director
who is not an employee of Agere, receives annually a retainer of
$45,000 and an option to purchase 10,000 shares of Agere
common stock. Each new outside director receives an option to
purchase 10,000 shares of Agere common stock when first
elected to the Agere board of
37
directors. The exercise price per share for these options, which
are granted under our Non-Employee Director Stock Plan, is the
fair market value of a share on the date of grant. Options
granted under the plan generally have a seven-year term and
become exercisable on the first anniversary of the date of grant.
Agere also provides outside directors with travel accident
insurance when on company business.
Compensation
Committee Interlocks and Insider Participation
The members of the Compensation Committee in fiscal 2006 were
Richard S. Hill (through January 2006), Arun Netravali (from
January 2006), Thomas P. Salice, Rae F. Sedel and Harold A.
Wagner. None of the members has ever been an officer or employee
of Agere or any of its subsidiaries, and no compensation
committee interlocks existed during fiscal 2006.
Communications
with Directors
Individuals who want to communicate with the Agere board of
directors or any individual director can write to:
Agere
Systems Inc.
Board Administration
Room 4U-541
400 Connell Drive
Berkeley Heights, NJ 07922
Your letter should indicate that you are an Agere stockholder.
The Corporate Secretarys office will review each letter.
Depending on the subject matter, that office will:
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Forward the communication to the director or directors to whom
it is addressed;
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Attempt to handle the inquiry directly, without forwarding it,
for example where it is a request for information about Agere or
it is a stock-related matter; or
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Not forward the communication if it is primarily commercial in
nature or if it relates to an improper or irrelevant topic.
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At each Agere board meeting, the Corporate Secretary presents a
summary of all communications received since the last meeting
that were not forwarded and makes those communications available
to the directors on request. The Agere board of directors has
approved this process.
Director
Attendance at Annual Meetings
We typically schedule an Agere board meeting in conjunction with
the Agere annual meeting and expect that Ageres directors
will attend absent a valid reason, such as a schedule conflict.
Last year, all of the individuals then serving as directors,
other than Mr. Wilska, attended Ageres annual
meeting. Mr. Wilska had recently joined Ageres Board
and had a pre-existing conflict.
Section 16(a)
Beneficial Ownership Reporting Compliance
Agere believes that, under the Securities and Exchange
Commissions rules for reporting of securities transactions
by executive officers, directors and beneficial owners of more
than 10% of our common stock, all required reports for fiscal
2006 were timely filed.
38
BENEFICIAL
OWNERSHIP OF AGERE COMMON STOCK
Beneficial
Owners of More Than 5% of Agere Common Stock
The following table sets forth information concerning the
beneficial ownership of Agere common stock for each person or
group of persons known to Agere, as of January 31, 2007,
that beneficially owned more than 5% the shares of Agere common
stock. The information below is based on public filings made
with the Securities and Exchange Commission. These filings
contain information as of particular dates and may not reflect
current holdings of Agere common stock. To Ageres
knowledge, other than as described below, the named person or
group of persons has sole voting and investment power with
respect to these securities.
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Name and Address of Beneficial Owner
|
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Amount of Beneficial Ownership
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|
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Percent of Class(1)
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Capital Research and Management
Company
333 South Hope Street
Los Angeles, CA 90071
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9,267,920
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(2)
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5.5
|
%
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Brandes Investment Partners,
L.P.
11988 El Camino Real, Suite 500
San Diego, CA 92130
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13,035,919
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(3)
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7.7
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%
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(1) |
|
Percentage of ownership was determined by dividing (i) the
number of shares shown in the table by (ii) 169,332,730,
the number of shares of Agere common stock outstanding as of
January 31, 2007, unless otherwise indicated. |
|
(2) |
|
Based on a Schedule 13G Information Statement amendment
filed by Capital Research and Management (Capital Research) on
February 14, 2006. Such Schedule discloses that
(i) Capital Research has sole voting power with respect to
1,432,600 shares of common stock, and has sole dispositive
power with respect to 9,267,920 shares of common stock and
does not have shared voting power or dispositive power with
respect to any shares, and (ii) Capital Research disclaims
beneficial ownership with respect to all such shares. |
|
(3) |
|
Based on a Schedule 13G Information Statement filed by
Brandes Investment Partners, L.P., Brandes Investment Partners,
Inc., Brandes Worldwide Holdings, L.P., Charles H. Brandes,
Glenn R. Carlson and Jeffrey A. Busby (Brandes) on
February 14, 2006. Such Schedule discloses that
(i) Brandes has shared voting power with respect to
11,205,972 shares of common stock, and has shared
dispositive power with respect to 13,035,919 shares of
common stock and does not have sole voting or dispositive powers
over any shares, and (ii) Brandes Investment Partners,
Inc., Charles H. Brandes, Glenn R. Carlson and Jeffrey A. Busby
disclaim direct ownership of such shares, except for an amount
that is substantially less than one percent of such shares, and
Brandes Worldwide Holdings, L.P. disclaims direct ownership of
such shares. |
39
Security
Ownership of Directors and Executive Officers
The following table sets forth information concerning the
beneficial ownership of Agere common stock as of
January 31, 2007 for Agere directors, the individuals named
in the Summary Compensation Table and the directors and
executive officers as a group. To Ageres knowledge, except
as otherwise noted, the named individual had sole voting and
investment power with respect to these securities.
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Common Stock
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|
|
Beneficially
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Name
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Owned(1)(2)
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Richard L. Clemmer
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158,204
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Richard S. Hill
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21,000(3
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)
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Michael J. Mancuso
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3,600
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Arun Netravali
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|
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19,782
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Thomas P. Salice
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51,859(4
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)
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Rae F. Sedel
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28,747
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Harold A. Wagner
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42,500
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Kari-Pekka Wilska
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|
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John T. Dickson
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|
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Peter Kelly
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375,564
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Denis P. Regimbal
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163,991
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Samir F. Samhouri
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104,374
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Ruediger Stroh
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66,843
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Andrew Micallef
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131,315
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Jean F. Rankin
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248,860
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Directors and executive officers
as a group (15 persons)
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|
|
1,419,639
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(1) |
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No individual director, executive officer or other individual
identified above owned more than 1% of our outstanding common
stock as of January 31, 2007. As of that date, the
directors and executive officers as a group beneficially owned
less than 1% of our outstanding common stock. |
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(2) |
|
Includes beneficial ownership of the following numbers of shares
of Agere common stock that may be acquired within 60 days
of January 31, 2007 pursuant to stock options awarded under
Agere stock plans: |
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# of Shares
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Mr. Clemmer
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139,000
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Mr. Hill
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21,000
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Mr. Netravali
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18,000
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Mr. Salice
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21,000
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Ms. Sedel
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27,000
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Mr. Wagner
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37,000
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Mr. Kelly
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358,479
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Mr. Regimbal
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|
|
156,875
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Mr. Samhouri
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105,756
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Mr. Stroh
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66,666
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Mr. Micallef
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128,989
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Ms. Rankin
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243,215
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|
Directors and executive officers
as a group (15 persons)
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|
|
1,322,980
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|
|
|
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(3) |
|
On February 1, 2007, Mr. Hill exercised stock options
in respect of 13,000 of such shares which were concurrently sold. |
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(4) |
|
Includes 27,043 shares held jointly and over which
Mr. Salice shares voting and investment power with his
spouse, and 3,816 shares held by a charitable trust and
over which Mr. Salice shares voting and investment power
with his spouse as trustees. |
40
PROPOSAL 1.
THE
MERGER AGREEMENT AND THE MERGER
As discussed elsewhere in this joint proxy statement/prospectus,
Agere stockholders are considering and voting to adopt the
merger agreement. Agere stockholders should read carefully this
joint proxy statement/prospectus in its entirety for more
detailed information concerning the merger agreement and the
merger. In particular, Agere stockholders are directed to the
merger agreement which is attached as Annex A to this joint
proxy statement/prospectus.
The Agere board of directors recommends a
vote FOR the proposal to adopt the merger
agreement.
41
PROPOSAL 2.
ELECTION
OF AGERE DIRECTORS
The Agere board of directors is divided into three classes. One
class is elected each year for a term of three years.
Three directors will be elected at the annual meeting of
stockholders and until their successors are elected and
qualified for a three-year term expiring at the Agere annual
meeting in 2010 or until the consummation of the merger. The
Agere board of directors has nominated Richard L. Clemmer,
Michael J. Mancuso and Kari-Pekka Wilska for the positions.
Agere stockholders can find information about
Messrs. Clemmer, Mancuso and Wilska below. Upon
consummation of the merger, each of the directors of Agere will
be replaced by the directors of Atlas Acquisition Corp. as the
board of directors of the surviving corporation.
The persons named in the Agere proxy card will vote such proxy
for the election of Messrs. Clemmer, Mancuso and Wilska,
unless you indicate that your vote should be withheld. If
elected, Messrs. Clemmer, Mancuso and Wilska will each
continue in office until his successor has been duly elected and
qualified, or until the earliest of his death, resignation or
retirement. Messrs. Clemmer, Mancuso and Wilska have each
indicated to the company that he will serve if elected. Agere
does not anticipate that any of the nominees will be unable to
stand for election, but, if that happens, your proxy will be
voted in favor of another person nominated by the Agere board of
directors.
The Agere board of directors recommends a
vote FOR the election of Messrs. Clemmer,
Mancuso and Wilska as Agere directors.
Nominees
for Terms Expiring in 2010
Richard L. Clemmer, Director since October
2002. Mr. Clemmer has been Ageres
President and Chief Executive Officer since October 2005.
Mr. Clemmer has over 30 years of experience in the
technology industry, where he has held a variety of executive,
financial and management positions. Between June 2004 and
October 2005, he was an active partner at Shelter Capital
Partners, a private investment fund. Between 2003 and October
2005, he was Chairman and President of Venture Capital
Technology LLC, which was focused on investing in and consulting
for technology companies, primarily involved as Chairman of uNav
Microelectronics, an emerging global positioning systems chipset
company. Between May 2001 and January 2003, he was on the board
of directors and served as an executive at PurchasePro.com,
Inc., a provider of electronic procurement and strategic
sourcing solutions. Between 1996 and May 2001, Mr. Clemmer
was Executive Vice President, Finance and Chief Financial
Officer of Quantum Corp., which was a provider of hard disk
drives and other storage solutions. Prior to Quantum,
Mr. Clemmer served at Texas Instruments Incorporated for
over 20 years, including between 1988 and 1996 as Senior
Vice President and Chief Financial Officer of Texas Instruments
Incorporateds Semiconductor Group. Mr. Clemmer is a
director of i2 Technologies, Inc. Age: 54.
In September 2002, while Mr. Clemmer was Chairman, Chief
Executive Officer and Chief Financial Officer of PurchasePro,
having been asked to take over from prior management,
PurchasePro filed a voluntary petition under Chapter 11 of
the United States Bankruptcy Code in connection with an
agreement to sell substantially all of its assets.
Michael J. Mancuso, Director since July
2006. From 1994 to 2006, Mr. Mancuso was
chief financial officer of General Dynamics, a supplier of
business aviation and aircraft services, land and amphibious
combat systems and shipbuilding and marine systems. Prior to
joining General Dynamics in 1993, he was vice president and
controller of United Technologies Corporations Pratt and
Whitney Commercial Engine business unit. He also served
21 years with General Electric in various financial
management positions. Mr. Mancuso is a director of SPX
Corporation and The Shaw Group. Age: 64.
Kari-Pekka Wilska, Director since December
2005. Since October 2005, Mr. Wilska has
been a partner at Austin Ventures, a venture capital firm. Prior
to joining Austin Ventures, Mr. Wilska was President of
Vertu Ltd., a subsidiary of Nokia Corporation and a provider of
luxury mobile phones. From 1993 to 2004, Mr. Wilska held a
variety of leadership positions in Nokias U.S. mobile
phone operations. Mr. Wilska is also a director of
Brightpoint, Inc. and Mavenir Systems. Age: 59.
42
Directors
Whose Terms Will Expire in 2008
Richard S. Hill, Director since July
2003. Mr. Hill has been Chief Executive
Officer and a director of Novellus Systems, Inc., a supplier of
integrated circuit manufacturing equipment, since 1993 and has
been Chairman of its board of directors since 1996. Before
joining Novellus, Mr. Hill spent 12 years at
Tektronix, Inc., where he held a variety of positions, including
President of Tektronix Development Company, Vice President of
the Test and Measurement Group and President of Tektronix
Components Corporation. Prior to joining Tektronix, he held
engineering management and engineering positions at General
Electric, Motorola and Hughes Aircraft Company. Mr. Hill is
a director of Arrow Electronics, Inc. and the University of
Illinois Foundation. Age: 54.
Arun Netravali, Director since July
2004. Since November 2004, Mr. Netravali has
been managing partner of OmniCapital Group LLC, a venture
capital firm. From January 2002 to April 2003,
Mr. Netravali was Chief Scientist for Lucent Technologies
Inc., a provider of services, systems and software for
communications networks, working with academic and investment
communities to identify and implement new networking
technologies. From 1999 to January 2002, Mr. Netravali was
President of Bell Labs as well as Lucents Chief Technology
Officer and Chief Network Architect. Mr. Netravali
currently serves on the board of Level 3 Communications
Inc. and on the advisory board of Veridicom International Inc.
Age: 60.
Harold A. Wagner, Director since March 2001 and Chairman of
the Agere board of directors since December
2001. In December 2000, Mr. Wagner retired
from his position as Chairman and Chief Executive Officer of Air
Products and Chemicals, Inc., a multi-national chemicals
manufacturing company, a position he had held since 1998. From
1992 to 1998, Mr. Wagner served as Chairman, President and
Chief Executive Officer of Air Products and Chemicals. He is
also a director of CIGNA Corporation, United Technologies
Corporation and PACCAR Inc. He is a trustee of the Eisenhower
Exchange Fellowships, Inc. and is a member of the Business
Advisory Committee of A.P. Møller. Age: 71.
Directors
Whose Terms Will Expire in 2009
Thomas P. Salice, Director since July
2003. Mr. Salice is a co-founder and has
been a managing member of SFW Capital Partners, LLC, a private
equity firm, since January 2005. Prior to his current position,
he served as Vice Chairman of AEA Investors LLC, a private
equity firm, and had served at AEA Investors since 1989.
Mr. Salice is a director of Mettler-Toledo International
Inc. and Waters Corporation and is a trustee of Fordham
University. Age: 47.
Rae F. Sedel, Director since March
2001. Ms. Sedel has been a Managing Director
since 1987, and a member of the board of directors since October
2005, of Russell Reynolds Associates, Inc., an executive
recruiting firm. From 1991 until October 2005, she was the lead
partner on sector verticals and, from 1991 until December 2004,
she was head of the technology sector at Russell Reynolds.
Before joining Russell Reynolds, Ms. Sedel spent fifteen
years with Pacific Telesis Group, where she was Vice
President-Consumer Markets. Age: 57.
43
PROPOSAL 3.
RE-APPROVAL
OF THE AGERE SYSTEMS INC.
SHORT
TERM INCENTIVE PLAN
Agere is asking its stockholders to re-approve the Short Term
Incentive Plan to preserve the federal income tax deduction for
compensation it pays to its chief executive officer and the four
other most highly compensated executive officers. These
individuals are our covered employees.
Section 162(m) of the Internal Revenue Code limits the
federal income tax deduction for compensation paid to each of
the covered employees of a publicly held corporation
to $1 million per fiscal year, with exceptions for
performance-based compensation made under qualifying plans.
Under Section 162(m), Agere must periodically seek
stockholder approval of the plan; the plan was last approved by
stockholders in 2002. Agere is not proposing any changes to the
plan. A summary of the principal features of the plan is
provided below. Agere stockholders can find a complete copy of
the plan attached to the proxy statement available over the
Internet through the Securities and Exchange Commissions
EDGAR service.
Awards. Agere pays annual bonuses to officers
under the Short Term Incentive Plan. The plan provides for the
payment of cash bonuses for executive officers after performance
periods selected by the Compensation Committee, in accordance
with targets established at or near the beginning of the
performance periods. Each fiscal year is typically a performance
period, although other periods of time could be selected.
Typically, the committee makes any award payments subject to
Agere having a minimum level of net income for the performance
period. If that level of net income is met, the committee will
consider additional factors in setting each individuals
bonus (with respect to covered employees the
additional factors may only work to reduce the bonus amount).
Factors that may be considered in determining the amount of
individual bonuses may include the executive officers
individual performance, which may be measured by the quality of
strategic plans, organizational and management development,
special project leadership and similar indicators of individual
performance or other measures, and the companys financial
performance, which may be measured by revenue, operating income,
cash flow, earnings per share, return on equity, total return to
stockholders in the form of stock price appreciation and
dividends, if paid, or other measures. Net income for these
purposes is defined as our net income before taxes for a
specified period of time, excluding the following items:
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|
|
|
|
extraordinary items;
|
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|
|
cumulative effects of changes in accounting principles;
|
|
|
|
securities gains and losses;
|
|
|
|
amortization or write-off of goodwill, acquired intangibles, and
purchased in-process research and development; and
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|
|
nonrecurring items including, but not limited to, gains or
losses on asset dispositions and sales of divisions, business
units or subsidiaries, restructuring and separation charges and
gains and losses from qualified benefit plan curtailments and
settlements.
|
Agere believes that it is not appropriate for these items to
have an impact on the level of executive compensation paid.
Agere uses the net income test so that awards to covered
employees can be deducted by Agere for federal income tax
purposes. Subject to this limitation and the maximum award under
the plan, the amount of each executive officers award is
determined in the sole discretion of the committee or, in the
case of an award to an officer who is not a covered
employee, in the sole discretion of the committee or a
person or committee to whom the committee has delegated that
authority. With respect to a covered employee, the
committee may reduce, but may not increase, the amount of a
bonus that otherwise would be payable.
When it determined officer bonuses for fiscal 2006, the
committee also took into account the extent to which the company
met revenue and non-GAAP operating margin targets.
The maximum amount that may be paid under the plan to any
participant in any fiscal year is $9 million. In fiscal
2006, there were nine participants in the plan.
44
Plan Administration. The Compensation
Committee administers the Short Term Incentive Plan.
Other Provisions. The Agere board of directors
may modify or terminate the Short Term Incentive Plan at any
time.
Tax Rules. The following is a brief summary of
the federal income tax consequences of payments made under the
Short Term Incentive Plan based on current federal income tax
laws. This summary is not intended to be exhaustive and does not
describe state or local tax consequences. In general, ordinary
income will be recognized by participants in the plan at the
time that awards are paid or made available to them. At the time
that a participant recognizes ordinary income, Agere will be
entitled to a corresponding deduction if, among other things,
(i) the income meets the test of reasonableness, is an
ordinary and necessary business expense and is not an
excess parachute payment within the meaning of
Section 280G of the Internal Revenue Code and is not
disallowed by the $1 million limitation on compensation
paid to covered employees and (ii) any
applicable reporting obligations are satisfied.
Awards made in the future to any officer will be based on the
officers individual performance and the companys
future performance. Accordingly, the amount of cash bonuses to
be paid in the future to current or future participating
officers cannot be determined at this time. Actual amounts will
depend on the individuals and Ageres actual
performance. Agere stockholders can find the amounts Agere paid
to certain participants for bonuses under the plan in fiscal
2006 in the Agere Summary Compensation Table below.
The Agere board of directors recommends a
vote FOR the re-approval of the Agere Systems
Inc. Short Term Incentive Plan.
Information about Ageres equity compensation
plans. The following table summarizes information
about Ageres equity compensation plans as of
September 30, 2006. For additional information about
Ageres equity compensation plans, see note 4 to the
financial statements in Item 8 of Ageres 2006 annual
report on
Form 10-K.
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Securities
|
|
|
|
|
|
|
|
|
|
Remaining Available
|
|
|
|
Number of Securities
|
|
|
|
|
|
for Future Issuance
|
|
|
|
to be Issued Upon
|
|
|
Weighted-Average
|
|
|
Under Equity
|
|
|
|
Exercise of
|
|
|
Exercise Price of
|
|
|
Compensation Plans
|
|
|
|
Outstanding Options,
|
|
|
Outstanding Options,
|
|
|
(Excluding Securities
|
|
|
|
Warrants and Rights(1)
|
|
|
Warrants and Rights
|
|
|
Reflected in Column (a))
|
|
|
|
(a)
|
|
|
(b)
|
|
|
(c)
|
|
|
Equity compensation plans approved
by security holders
|
|
|
25,290,226
|
|
|
$
|
29.0283
|
|
|
|
20,768,864
|
(2)
|
Equity compensation plans not
approved by security holders(3)
|
|
|
1,476,915
|
|
|
$
|
270.7757
|
|
|
|
0
|
|
Total
|
|
|
26,767,141
|
|
|
$
|
42.3671
|
|
|
|
20,768,864
|
|
|
|
|
(1) |
|
In connection with Ageres spin-off from Lucent, Agere
assumed stock options that had originally been granted by Lucent
or AT&T Corp. or companies that Lucent had acquired. The
table does not include information for equity compensation plans
assumed by Lucent in connection with acquisitions of the
companies that originally established those plans. At
September 30, 2006, 114,302 shares were issuable upon
exercise of outstanding options, with a weighted-average
exercise price of $57.0218 per share, under these plans.
Since the spin-off Agere has not granted, and Agere will not
grant in the future, any additional options under these plans. |
|
(2) |
|
Includes 15,606,788 shares available for issuance under
Ageres 2001 Long Term Incentive Plan, all of which were
available in connection with stock options, stock appreciation
rights, restricted stock awards, performance shares and units,
dividend equivalents and other stock unit awards. The amount
shown in the table also includes 4,855,663 shares available
under Ageres employee stock purchase plan and 306,413
shares available for issuance in connection with stock options,
restricted stock units and restricted stock granted under the
Agere Non-Employee Director Stock Plan. |
|
(3) |
|
All of the shares reported in this row relate to stock options
granted prior to Ageres spin-off by Lucent under Lucent
plans that had not been approved by Lucents stockholders
and that Agere assumed in connection with the spin-off. Since
the spin-off, Agere has not granted, and will not grant in the
future, any further awards under these plans. |
45
PROPOSAL 4.
RATIFICATION OF SELECTION OF PRICEWATERHOUSECOOPERS LLP AS
AGERES
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Agere Audit Committee has selected PricewaterhouseCoopers
LLP to serve as Ageres independent registered public
accounting firm for fiscal 2007. Representatives of
PricewaterhouseCooopers LLP will be at the annual meeting to
answer questions. They will also have the opportunity to make a
statement if they desire to do so.
While not required by law or Ageres governing documents,
the Agere board of directors is asking our stockholders to
ratify the Audit Committees selection of
PricewaterhouseCoopers LLP as Ageres independent
registered public accounting firm for fiscal 2007. The Agere
board of directors is doing this as a matter of good corporate
practice. If Agere stockholders do not ratify the selection of
PricewaterhouseCoopers LLP, the Audit Committee will consider
whether to select an alternate firm as Ageres independent
registered public accounting firm. Even if stockholders do
ratify the selection of PricewaterhouseCoopers LLP, the Audit
Committee may, in its discretion, select a different firm if it
believes doing so is in the interest of the company and its
stockholders.
Ageres
Relationship with its Independent Auditors
The fees billed by PricewaterhouseCoopers LLP to Agere during
fiscal 2006 and fiscal 2005 were as follows:
|
|
|
|
|
|
|
|
|
|
|
Fiscal 2006
|
|
|
Fiscal 2005
|
|
|
Audit Fees
|
|
$
|
2,076,000
|
|
|
$
|
2,366,000
|
|
Audit-Related Fees
|
|
|
|
|
|
|
|
|
Financial due diligence
|
|
|
|
|
|
|
54,000
|
|
Intellectual property royalty
audits
|
|
|
|
|
|
|
10,000
|
|
Services related to our
reclassification and reverse stock split
|
|
|
|
|
|
|
35,000
|
|
Consultations regarding GAAP
|
|
|
65,000
|
|
|
|
50,000
|
|
|
|
|
|
|
|
|
|
|
Total Audit-Related Fees
|
|
$
|
65,000
|
|
|
$
|
149,000
|
|
|
|
|
|
|
|
|
|
|
Tax Fees
|
|
|
|
|
|
|
|
|
Transfer pricing
|
|
$
|
175,000
|
|
|
|
175,000
|
|
International tax compliance
|
|
|
240,000
|
|
|
|
249,000
|
|
International tax advice
|
|
|
30,000
|
|
|
|
30,000
|
|
|
|
|
|
|
|
|
|
|
Total Tax Fees
|
|
$
|
445,000
|
|
|
$
|
454,000
|
|
All Other Fees
|
|
|
4,000
|
(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Fees Billed
|
|
$
|
2,590,000
|
|
|
$
|
2,969,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
For access to a web-based, accounting research product provided
by PricewaterhouseCoopers LLP. |
Under its charter, the Audit Committee must pre-approve all
engagements of the independent auditors unless an exception to
such pre-approval exists under the Securities Exchange Act of
1934 or the rules of the Securities and Exchange Commission.
Each year, the committee approves the retention of the
independent auditors to audit Ageres financial statements,
including proposed fees, before the filing of the preceding
years annual report on
Form 10-K.
At the beginning of the fiscal year, the Audit Committee will
evaluate other known potential engagements of the independent
auditors, including the scope of the work proposed to be
performed and the proposed fees, and approve or reject each
service, taking into account whether the services are
permissible under applicable law and the possible impact of each
non-audit service on the independent auditors independence
from management. At each subsequent committee meeting, the
committee will receive updates on the services actually provided
by the independent auditors, and management may present
additional services for approval. Typically,
46
these would be services such as due diligence for an
acquisition, that would not have been known at the beginning of
the year. The committee has delegated to the Chairman of the
committee the authority to evaluate and approve engagements on
behalf of the committee in the event that a need arises for
pre-approval between committee meetings. This might occur, for
example, if Agere proposed to execute a financing on an
accelerated timetable. If the Chairman approves any engagements
pursuant to this delegation, he will report that approval to the
full committee at the next committee meeting.
In fiscal 2006 and fiscal 2005, each new engagement of
PricewaterhouseCoopers LLP was approved in advance by the Audit
Committee or its Chairman, and none of those engagements made
use of the de minimis exception to pre-approval contained in the
Securities and Exchange Commissions rules.
The Agere board of directors recommends a vote
FOR the Audit Committees selection of
PricewaterhouseCoopers LLP as Ageres independent
registered public accounting firm for fiscal 2007.
47
EXECUTIVE
COMPENSATION
The following table shows information concerning the
compensation of (i) Ageres Chief Executive Officer,
(ii) Ageres former Chief Executive Officer,
(iii) each of Ageres other executive officers who
were serving as such at the end of fiscal 2006 and (iv) two
additional individuals who were executive officers for part of
fiscal 2006, but were not serving as such at fiscal year end.
SUMMARY
COMPENSATION TABLE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-Term
|
|
|
|
|
|
|
|
|
|
|
|
|
Compensation
|
|
|
|
|
|
|
|
|
|
Annual Compensation
|
|
|
Awards
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Annual
|
|
|
|
|
|
Securities
|
|
|
All Other
|
|
Name and
|
|
Fiscal
|
|
|
|
|
|
|
|
|
Compensation
|
|
|
Restricted Stock
|
|
|
Underlying
|
|
|
Compensation
|
|
Principal Position (1)
|
|
Year
|
|
|
Salary ($)
|
|
|
Bonus ($)
|
|
|
($)(2)
|
|
|
Awards ($)(3)
|
|
|
Options (#)
|
|
|
($)(4)
|
|
|
Richard L. Clemmer
|
|
|
2006
|
|
|
|
636,825
|
|
|
|
425,000
|
|
|
|
140,369
|
|
|
|
3,022,500
|
|
|
|
500,000
|
|
|
|
10,800
|
|
President and Chief Executive
Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John T. Dickson
|
|
|
2006
|
|
|
|
66,667
|
|
|
|
|
|
|
|
1,400
|
|
|
|
|
|
|
|
|
|
|
|
6,174,820
|
|
President and Chief
|
|
|
2005
|
|
|
|
800,000
|
|
|
|
|
|
|
|
35,727
|
|
|
|
|
|
|
|
200,000
|
|
|
|
14,040
|
|
Executive Officer
|
|
|
2004
|
|
|
|
800,000
|
|
|
|
320,000
|
|
|
|
33,843
|
|
|
|
|
|
|
|
250,000
|
|
|
|
23,331
|
|
Peter Kelly
|
|
|
2006
|
|
|
|
400,000
|
|
|
|
120,000
|
|
|
|
34,854
|
|
|
|
1,343,000
|
|
|
|
175,000
|
|
|
|
9,060
|
|
Executive Vice
|
|
|
2005
|
|
|
|
400,000
|
|
|
|
200,000
|
|
|
|
51,286
|
|
|
|
|
|
|
|
100,000
|
|
|
|
25,922
|
|
President and Chief
|
|
|
2004
|
|
|
|
400,000
|
|
|
|
150,000
|
|
|
|
29,351
|
|
|
|
|
|
|
|
100,000
|
|
|
|
8,910
|
|
Financial Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Denis P. Regimbal
|
|
|
2006
|
|
|
|
291,667
|
|
|
|
110,000
|
|
|
|
18,054
|
|
|
|
1,007,250
|
|
|
|
115,000
|
|
|
|
9,127
|
|
Executive Vice President, Mobility
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Samir F. Samhouri
|
|
|
2006
|
|
|
|
250,000
|
|
|
|
120,000
|
|
|
|
35,650
|
|
|
|
1,007,250
|
|
|
|
115,000
|
|
|
|
10,765
|
|
Executive Vice President,
Networking
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ruediger Stroh
|
|
|
2006
|
|
|
|
279,451
|
|
|
|
120,000
|
|
|
|
34,074
|
|
|
|
1,343,000
|
|
|
|
200,000
|
|
|
|
101,560
|
|
Executive Vice President, Storage
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Andrew Micallef
|
|
|
2006
|
|
|
|
300,000
|
|
|
|
90,000
|
|
|
|
51,897
|
|
|
|
1,007,250
|
|
|
|
100,000
|
|
|
|
238,898
|
|
Executive Vice President,
Global
Operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jean F. Rankin
|
|
|
2006
|
|
|
|
320,000
|
|
|
|
96,000
|
|
|
|
35,862
|
|
|
|
1,007,250
|
|
|
|
100,000
|
|
|
|
9,360
|
|
Executive Vice President,
General
Counsel & Secretary
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Mr. Clemmer was appointed President and Chief Executive
Officer when Mr. Dickson retired from those positions in
October 2005. Messrs. Micallef, Regimbal and Samhouri and
Ms. Rankin became executive officers in October 2005.
Following the management changes that occurred after
Mr. Clemmer became President and Chief Executive Officer,
the positions of Mr. Micallef and Ms. Rankin ceased
being considered executive officer positions in December 2005.
Mr. Stroh joined Agere in November 2005. |
|
(2) |
|
For fiscal 2006, the amounts shown in this column are comprised
of the following: |
48
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Tax Gross-ups
|
|
|
|
|
|
|
|
|
|
|
|
|
on
|
|
|
|
|
|
|
Financial
|
|
|
|
|
|
International
|
|
|
|
|
|
|
Counseling and
|
|
|
Commuting
|
|
|
Assignment
|
|
Name
|
|
Car Allowance
|
|
|
Tax
Gross-up
|
|
|
Expenses
|
|
|
Payments
|
|
|
Mr. Clemmer
|
|
|
16,800
|
|
|
|
18,054
|
|
|
|
105,515
|
|
|
|
|
|
Mr. Dickson
|
|
|
1,400
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mr. Kelly
|
|
|
16,800
|
|
|
|
18,054
|
|
|
|
|
|
|
|
|
|
Mr. Regimbal
|
|
|
|
|
|
|
18,054
|
|
|
|
|
|
|
|
|
|
Mr. Samhouri
|
|
|
16,800
|
|
|
|
18,850
|
|
|
|
|
|
|
|
|
|
Mr. Stroh
|
|
|
15,400
|
|
|
|
18,674
|
|
|
|
|
|
|
|
|
|
Mr. Micallef
|
|
|
|
|
|
|
14,862
|
|
|
|
|
|
|
|
37,035
|
|
Ms. Rankin
|
|
|
16,800
|
|
|
|
19,062
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Under Mr. Clemmers employment agreement, we paid him
$100,000 to be used for housing
and/or
commuting expenses. We also provided him $5,515 of additional
commuting benefits during an initial, transition period after he
became President and Chief Executive Officer. |
|
(3) |
|
The amounts shown in this column represent the grant date value
of restricted stock units received by the named individuals in
fiscal 2006. This value was computed using the closing price of
a share of Agere common stock on the date of grant for each
restricted stock unit. We do not pay dividend equivalents on
restricted stock units. The following table gives information
about the restricted stock units granted in fiscal 2006. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Performance-Based
|
|
|
|
|
|
|
|
|
|
Restricted Stock
|
|
|
Time-Based Restricted
|
|
|
Value at Fiscal Year-End
|
|
|
|
Units Granted
|
|
|
Stock Units Granted in
|
|
|
of All Restricted Stock
|
|
Name
|
|
in Fiscal 2006 (#)
|
|
|
Fiscal 2006 (#)
|
|
|
Units Held ($)
|
|
|
Mr. Clemmer
|
|
|
150,000
|
|
|
|
100,000
|
|
|
|
3,732,500
|
|
Mr. Kelly
|
|
|
50,000
|
|
|
|
50,000
|
|
|
|
1,493,000
|
|
Mr. Regimbal
|
|
|
25,000
|
|
|
|
50,000
|
|
|
|
1,119,750
|
|
Mr. Samhouri
|
|
|
25,000
|
|
|
|
50,000
|
|
|
|
1,119,750
|
|
Mr. Stroh
|
|
|
100,000
|
|
|
|
|
|
|
|
1,493,000
|
|
Mr. Micallef
|
|
|
25,000
|
|
|
|
50,000
|
|
|
|
1,119,750
|
|
Ms. Rankin
|
|
|
25,000
|
|
|
|
50,000
|
|
|
|
1,119,750
|
|
|
|
|
|
|
The performance-based restricted stock units shown in the table
will be paid out on the fourth anniversary of the date of grant
if total stockholder return for Agere exceeds the market
capitalization weighted total stockholder return of a peer group
and the holder remains employed through that date. If the merger
is completed, the performance test will be deemed satisfied. One
quarter of the time-based restricted stock units shown in the
table for Mr. Clemmer will be paid out on each of the first
four anniversaries of the grant date if he remains employed
through the date of payment. The other time-based restricted
stock units shown in the table will be paid out on the second
anniversary of the date of grant if the holder remains employed
through that date. If the holders employment terminates
after the merger, the holder may be entitled to immediate
payment of all restricted stock units under our Officer
Severance Policy. |
|
(4) |
|
For fiscal 2006, includes the following amounts: |
49
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
401(k)
|
|
|
Term Life
|
|
|
|
|
|
International
|
|
|
|
|
|
|
Matching
|
|
|
Insurance
|
|
|
Sign-on
|
|
|
Assignment
|
|
|
Severance
|
|
Name
|
|
Contributions ($)
|
|
|
Premiums ($)
|
|
|
Bonus ($)
|
|
|
Payments ($)
|
|
|
Payments ($)
|
|
|
Mr. Clemmer
|
|
|
6,600
|
|
|
|
4,200
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mr. Dickson
|
|
|
|
|
|
|
705
|
|
|
|
|
|
|
|
|
|
|
|
6,174,115
|
|
Mr. Kelly
|
|
|
6,300
|
|
|
|
2,760
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mr. Regimbal
|
|
|
7,567
|
|
|
|
1,560
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mr. Samhouri
|
|
|
9,925
|
|
|
|
840
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mr. Stroh
|
|
|
|
|
|
|
1,560
|
|
|
|
100,000
|
|
|
|
|
|
|
|
|
|
Mr. Micallef
|
|
|
6,500
|
|
|
|
1,110
|
|
|
|
|
|
|
|
231,288
|
|
|
|
|
|
Ms. Rankin
|
|
|
6,600
|
|
|
|
2,760
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
During fiscal 2006, Mr. Micallef was on a temporary,
international assignment in Singapore. Under our international
assignment policy, which is available to all employees on a
temporary international assignment and is designed so that
employees are not disadvantaged by their international
assignment, Mr. Micallef received the amounts shown in the
table above, which consist principally of additional living and
travel expenses, as well as the tax gross-ups shown in the table
in footnote 2. |
OPTION
GRANTS IN LAST FISCAL YEAR
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
% of
|
|
|
|
|
|
|
|
|
Potential Realizable Value
|
|
|
|
Securities
|
|
|
Total Options
|
|
|
|
|
|
|
|
|
at Assumed Annual Rates
|
|
|
|
Underlying
|
|
|
Granted to
|
|
|
|
|
|
|
|
|
of Stock Price Appreciation
|
|
|
|
Options
|
|
|
Employees in
|
|
|
Exercise Price
|
|
|
|
|
|
for Option Term ($)(1)
|
|
Name
|
|
Granted (#)(2)
|
|
|
Fiscal Year
|
|
|
($/Share)
|
|
|
Expiration Date
|
|
|
5%
|
|
|
10%
|
|
|
Richard L. Clemmer
|
|
|
500,000
|
|
|
|
11.0
|
|
|
|
9.845
|
|
|
|
10/29/2012
|
|
|
|
2,003,952
|
|
|
|
4,670,080
|
|
John T. Dickson
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Peter Kelly
|
|
|
175,000
|
|
|
|
3.9
|
|
|
|
13.315
|
|
|
|
11/30/2012
|
|
|
|
948,595
|
|
|
|
2,210,629
|
|
Denis P. Regimbal
|
|
|
115,000
|
|
|
|
2.5
|
|
|
|
13.315
|
|
|
|
11/30/2012
|
|
|
|
623,362
|
|
|
|
1,452,699
|
|
Samir F. Samhouri
|
|
|
115,000
|
|
|
|
2.5
|
|
|
|
13.315
|
|
|
|
11/30/2012
|
|
|
|
623,362
|
|
|
|
1,452,699
|
|
Ruediger Stroh
|
|
|
200,000
|
|
|
|
4.4
|
|
|
|
13.315
|
|
|
|
11/30/2012
|
|
|
|
1,084,108
|
|
|
|
2,526,434
|
|
Andrew Micallef
|
|
|
100,000
|
|
|
|
2.2
|
|
|
|
13.315
|
|
|
|
11/30/2012
|
|
|
|
542,054
|
|
|
|
1,263,217
|
|
Jean F. Rankin
|
|
|
100,000
|
|
|
|
2.2
|
|
|
|
13.315
|
|
|
|
11/30/2012
|
|
|
|
542,054
|
|
|
|
1,263,217
|
|
|
|
|
(1) |
|
These amounts represent hypothetical gains that might be
achieved for the respective stock options if exercised at the
end of the option term. The assumed 5% and 10% rates of stock
price appreciation are prescribed by the Securities and Exchange
Commission. None of the assumed rates of stock price
appreciation represents our estimate or projection of the future
price of our common stock. The real value of the stock options
in this table depends upon the actual changes in the market
price of our common stock during the term of the stock options. |
|
(2) |
|
One quarter of Mr. Clemmers stock option becomes
exercisable on each of the first four anniversaries of the grant
date. One quarter of each of the other stock options shown in
the table becomes exercisable on the first anniversary of the
grant date. The remainder of each of these stock options becomes
exercisable in equal monthly increments over a three-year period
thereafter. Under our Officer Severance Policy, earlier
exercisability of these options may occur following a change in
control if the named individual subsequently leaves the company. |
50
AGGREGATED
OPTION EXERCISES IN LAST FISCAL YEAR AND
FISCAL YEAR-END OPTION VALUES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Securities
|
|
|
Value of Unexercised
|
|
|
|
Shares
|
|
|
|
|
|
Underlying Unexercised
|
|
|
In-the-Money
Options at
|
|
|
|
Acquired on
|
|
|
Value
|
|
|
Options at Fiscal Year-End (#)
|
|
|
Fiscal Year-End ($)
|
|
Name
|
|
Exercise (#)
|
|
|
Realized ($)
|
|
|
Exercisable
|
|
|
Unexercisable
|
|
|
Exercisable
|
|
|
Unexercisable
|
|
|
Richard L. Clemmer
|
|
|
|
|
|
|
|
|
|
|
14,000
|
|
|
|
500,000
|
|
|
|
29,290
|
|
|
|
2,542,500
|
|
John T. Dickson
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Peter Kelly
|
|
|
|
|
|
|
|
|
|
|
267,852
|
|
|
|
265,628
|
|
|
|
407,369
|
|
|
|
361,756
|
|
Denis P. Regimbal
|
|
|
|
|
|
|
|
|
|
|
103,802
|
|
|
|
162,034
|
|
|
|
174,605
|
|
|
|
245,170
|
|
Samir F. Samhouri
|
|
|
|
|
|
|
|
|
|
|
66,522
|
|
|
|
143,846
|
|
|
|
32,562
|
|
|
|
222,013
|
|
Ruediger Stroh
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
200,000
|
|
|
|
|
|
|
|
323,000
|
|
Andrew Micallef
|
|
|
|
|
|
|
|
|
|
|
112,842
|
|
|
|
135,315
|
|
|
|
234,531
|
|
|
|
196,269
|
|
Jean F. Rankin
|
|
|
|
|
|
|
|
|
|
|
229,673
|
|
|
|
155,211
|
|
|
|
220,560
|
|
|
|
207,940
|
|
Pension
Plans
We have two programs that provide benefits under our pension
plans: a service based program and an account balance program.
Which program an employee participates in depends on their date
of hire. Employees hired after June 30, 2003 do not
participate in our pension plans. We have a non-qualified,
supplemental pension plan that provides benefits using the same
formulas as the tax-qualified pension plan based on compensation
that exceeds the amount that may be taken into account under a
tax-qualified pension plan.
Service
Based Program
The service based program generally covers most management
employees hired prior to January 1, 1999. Pensions provided
under this program are computed on an adjusted career average
pay basis. A participants annual pension benefit is equal
to 1.4% of the sum of the individuals:
|
|
|
|
|
Average annual pay for the five years ending December 31,
1998, excluding the annual bonus award paid in December 1997,
times the number of years of service prior to January 1,
1999;
|
|
|
|
Pay subsequent to December 31, 1998; and
|
|
|
|
Annual bonus award paid in December 1997.
|
Average annual pay includes base salary and annual bonus awards.
The normal retirement age under the service based program is 65.
However, employees who are at least age 50 with at least
15 years of service can retire with reduced benefits. If an
employees age is at least 50 and, when added to the
employees years of service, is equal to or greater than
75, the employee may retire with unreduced pension benefits. A
3% reduction is made for each year that age plus years of
service is less than 75. The unreduced pension benefit under
this early retirement provision is determined based on an
employees service and compensation history as of
January 1, 2005, and age and years of service when the
employee retires.
Account Balance
Program
The account balance program generally covers management
employees hired on or after January 1, 1999 and before
July 1, 2003. Under this program, we establish an account
for each participating employee and make annual
51
contributions to that account based on the employees age,
salary and bonus, in accordance with the following schedule:
|
|
|
|
|
|
|
Contributions as a percent
|
|
Age
|
|
of salary and bonus
|
|
|
less than 30
|
|
|
3.00
|
%
|
30 less than 35
|
|
|
3.75
|
%
|
35 less than 40
|
|
|
4.50
|
%
|
40 less than 45
|
|
|
5.50
|
%
|
45 less than 50
|
|
|
6.75
|
%
|
50 less than 55
|
|
|
8.25
|
%
|
55+
|
|
|
10.00
|
%
|
In addition, interest is credited on the last day of the year.
Once vested, normally after five years of service, an employee
participating in the account balance program is entitled to the
amounts in his or her account when he or she leaves the company.
Management employees hired on or after July 1, 2003,
including Messrs. Clemmer and Stroh, do not participate in
our pension plans.
Messrs. Regimbal and Samhouri and Ms. Rankin each
participates in the service based program. Mr. Dickson
participated in the service based program. Messrs. Kelly
and Micallef participate in the account balance program.
Federal laws place limitations on compensation amounts that may
be included under the qualified pension plan. In 2006, up to
$220,000 in eligible base salary and bonus could be included in
the calculation under the plan.
Compensation and benefit amounts that exceed the applicable
federal limitations are taken into account, and pension amounts
related to annual bonus awards payable to executive officers are
paid, under the supplemental pension plan. That plan is a
non-contributory plan and has the same two programs and uses the
same benefit formulas and eligibility rules as the qualified
pension plan. Pension amounts under the qualified pension plan
and supplemental pension plan are not subject to reductions for
social security benefits or other offset amounts.
The supplemental pension plan also provides executive officers
with minimum pensions. Eligible retired executive officers and
surviving spouses may receive an annual minimum pension equal to
15% of the sum of final base salary plus annual bonus awards.
This minimum pension will be offset by amounts received by plan
participants as pensions under the qualified and supplemental
pension plans.
If Messrs. Kelly and Micallef continue to be employed by
the company until age 65, we estimate that their balance in
the account balance program will be $1,324,358 for
Mr. Kelly and $1,442,189 for Mr. Micallef. This
represents a lump sum payment; other optional forms of payment
are available. This estimate assumes a 3% per year increase
in base salary and a bonus paid at target level each year.
If Messrs. Regimbal and Samhouri and Ms. Rankin
continue to be employed by the company until age 65, we
estimate that the annual pension payable to them under the
qualified and supplemental pension plans would be $231,505,
$374,053 and $235,951, respectively. These are single-life
annuity amounts. Other optional forms of payment, which provide
for actuarially reduced pensions, are available. These estimates
assume a 3% per year increase in base salary and a bonus
paid at target level each year. If the actual amounts they are
paid differ, or if they leave the company at a different time,
their actual pensions will differ.
OTHER
ARRANGEMENTS WITH AGERE EXECUTIVES
Officer
Severance Plan
Agere Systems has a severance policy that provides benefits for
an officer who is terminated by us other than for cause or who
chooses to leave following a change in control and within three
months of one of the following events occurring after the change
in control: either a diminution in job responsibility or a
material negative change in employment terms, including a
reduction in base salary or a material reduction in target bonus.
52
The benefits under this policy include continuation of salary
and health and welfare benefits and payment of annual bonus at
target levels for two years. These salary and bonus payments
would be taken into account for purposes of computing pensions.
During this two-year period, participation and vesting under our
stock-based benefit plans would continue. Alternatively, Agere
may make payment of the salary and target bonus in a lump sum,
in which event participation in company plans would end upon
payment of those amounts. Payment of any amount under these
arrangements will be conditional upon signing a release and will
be offset by any individually negotiated arrangement. The policy
provides that if an officer is subject to the tax imposed under
Section 4999 of the Internal Revenue Code, the officer will
receive additional payments from the company such that, after
payment of all taxes, the officer retains the amount that the
officer would have retained had that tax not applied.
Employment
Agreements
Mr. Clemmer
We entered into a letter agreement dated October 30, 2005,
with Mr. Clemmer that outlines the terms of his employment
with Agere Systems. Under the letter agreement, Mr. Clemmer
serves as our President and Chief Executive Officer. His salary
was initially set at $680,000 per year and his target bonus
is 125% of his base salary. For fiscal 2006, we agreed to pay
him a bonus of at least $425,000. Any bonus in future years will
depend on the level of achievement of goals set by the
Compensation Committee of our Board.
Mr. Clemmer received the following awards as hiring
incentives:
|
|
|
|
|
A seven-year stock option covering 500,000 shares. One
quarter of the option becomes exercisable on each of the first
four anniversary dates of the date of grant.
|
|
|
|
100,000 restricted stock units, one quarter of which are paid
out on each of the first four anniversary dates of the date of
grant.
|
|
|
|
150,000 restricted stock units which will be paid out after four
years only if our total stockholder return exceeds the market
capitalization-weighted total stockholder return for a peer
group of nine companies.
|
|
|
|
A lump sum payment of $100,000, to be used for housing
and/or
commuting expenses.
|
Mr. Clemmer also receives $1 million of company-paid
term life insurance, a $1,400 per month car allowance and a
$10,000 per year financial counseling allowance. The
financial counseling payments are grossed up for
taxes, so that Mr. Clemmer receives $10,000 after taxes.
Mr. Clemmer has the benefit of our officer severance
policy, which may affect the equity awards described above if
Mr. Clemmer leaves the combined company after the merger
under certain circumstances. In order to receive the benefit of
the severance plan, Mr. Clemmer agreed that if he leaves
the company, he will serve as non-executive chairman of our
Board for up to two years, if the Board requests.
Mr. Stroh
We entered into a letter agreement dated October 26, 2005,
with Ruediger Stroh that outlines the terms of his employment
with Agere Systems. Under the letter agreement, Mr. Stroh
serves as our Executive Vice President, Storage. His salary was
initially set at $325,000 per year and his target bonus is
75% of his base salary.
Mr. Stroh received the following awards as hiring
incentives:
|
|
|
|
|
A $100,000 sign-on bonus that is repayable in full if
Mr. Stroh voluntarily resigns or is terminated for cause
before November 22, 2007.
|
|
|
|
A seven-year stock option covering 200,000 shares that
becomes exercisable over a four-year period.
|
|
|
|
100,000 restricted stock units which will be paid out after four
years only if our total stockholder return exceeds the market
capitalization-weighted total stockholder return for a peer
group of nine companies.
|
53
Mr. Stroh also receives $500,000 of company-paid term life
insurance, a $1,400 per month car allowance and a
$10,000 per year financial counseling allowance. The
financial counseling payments are grossed up for
taxes, so that Mr. Stroh will receive $10,000 after taxes.
Mr. Stroh has the benefit of our officer severance policy,
which may affect the equity awards described above if
Mr. Stroh leaves the combined company after the merger
under certain circumstances.
Mr. Dicksons
Separation Agreement
On November 4, 2005, we entered into a separation agreement
with John T. Dickson, our former President and Chief Executive
Officer, relating to his retirement from the company. Under the
agreement:
|
|
|
|
|
Mr. Dickson did not receive a bonus for fiscal 2005.
|
|
|
|
Mr. Dickson received a severance payment of
$3.6 million, which is equal to two years salary and
bonus at target. This payment was conditioned on
Mr. Dickson signing a waiver and release.
|
|
|
|
Mr. Dickson received a transition assistance payment of
$133,333, which is equal to two months salary, in return
for his assistance with business and customer transition issues.
|
|
|
|
Mr. Dicksons stock options were governed by the terms
of the awards, which provide that any portion of any stock
option that was exercisable on October 26, 2005, remained
exercisable for 90 days, and any portion of any stock
option that was not then exercisable terminated.
|
|
|
|
We paid Mr. Dickson $1,504,899, which was the value of
Mr. Dicksons accrued benefit under our supplemental
pension plan.
|
|
|
|
We paid Mr. Dickson $682,612, which is equal to the amount
of additional benefit that Mr. Dickson would have accrued
under the supplemental pension plan had he continued to be
employed by the company for an additional two years and become
eligible for an early retirement benefit under the plan.
|
|
|
|
We paid Mr. Dickson $253,271, which was equal to his
accrued benefit under our tax-qualified pension plan.
|
54
REPORT OF
THE AGERE COMPENSATION COMMITTEE
ON EXECUTIVE COMPENSATION
The Agere Compensation Committee oversees the companys
compensation plans and practices. We review and establish the
individual compensation levels for members of senior management
and we work with management to establish the outlines of
Ageres compensation programs for other employees.
Executive
Compensation Philosophy
We designed our compensation program to attract, motivate and
retain highly talented individuals to drive business success.
The program reflects the following principles:
|
|
|
|
|
Compensation should be related to performance
|
Our compensation program reinforces the companys business
and financial objectives. Employee compensation will vary based
on company and individual performance. When the company performs
well against the objectives we set, employees will receive
greater incentive compensation. When the business does not meet
these objectives, incentive awards will be reduced or
eliminated. An employees individual compensation will also
vary based on the persons performance, contribution and
overall value to the business. And, employees with sustained
high performance should be rewarded more than those in similar
positions with lesser performance.
|
|
|
|
|
Agere employees should think like Agere stockholders
|
We believe that Agere employees should act in the interests of
Agere stockholders and the best way to encourage them to do that
is through an equity interest in the company. We do this in a
number of ways. We have, over time, granted equity-based awards,
such as stock options
and/or
restricted stock units, to most employees. In addition, we have
an employee stock purchase plan that enables employees to
purchase Agere stock at a discount through payroll deductions
and a 401(k) plan under which U.S. employees can invest in
Agere common stock. Our goal is to have market competitive stock
programs that encourage each employee to think like an owner of
the business.
|
|
|
|
|
Incentive compensation should be a greater part of total
compensation for more senior positions
|
The proportion of an individuals total compensation that
varies with individual and company performance objectives should
increase as the individuals business responsibilities
increase.
We have designed our compensation program to balance short and
long-term financial objectives, to encourage building
stockholder value and to reward individual and company
performance.
When we determine compensation levels for executive officers, we
generally consider the advice of independent, outside
consultants retained by the committee, and recommendations made
by the companys senior human resources executive. We also
review compensation survey data from our consultants and other
independent sources to ensure that our total compensation
program is competitive and that the amounts and types of
compensation the company pays its leaders are appropriate. We
look at compensation data from companies in our industry as well
as from companies in a broad cross-section of the technology
sector and similarly sized companies. We target overall
compensation opportunities to be competitive with our industry
comparison group. In addition, we consider the compensation
level of each of our officers and attempt to maintain
appropriate relationships between the compensation of the
different officers.
Deductibility
of Compensation Paid under Section 162(m) of the Internal
Revenue Code
It is our policy to have the compensation paid to the
companys five most highly compensated executive officers
qualify as performance-based and deductible for federal income
tax purposes under Section 162(m) of the Internal Revenue
Code unless there is a valid compensation reason that would
justify paying non-deductible amounts. That law provides that
compensation paid to those individuals in excess of
$1 million per year is not deductible for federal income
tax purposes unless it is performance-based and a number of
other requirements are met.
55
Our stock options and bonuses, other than guaranteed bonuses,
are intended to be performance-based and thus should
be deductible for federal income tax purposes, regardless of
amount. The other compensation we have paid generally is not
deductible to the extent that the total amount of that
compensation for one of those officers is more than
$1 million in any year.
2006
Background
At the beginning of fiscal 2006, John Dickson retired as Chief
Executive Officer of the company and we hired Rick Clemmer to
fill that position. Soon after his appointment, we and Rick made
a number of changes in senior management. Some people left the
company. Others moved into new positions of responsibility.
Almost all senior management positions were held by different
people than a year earlier.
We believed that these changes created a great deal of
uncertainty for those who remained. Would the new CEO like their
strategy and management style? Would they agree with any policy
changes that resulted from the management change? At the same
time, we wanted to challenge the new leadership team to improve
the companys financial performance and wanted to provide
meaningful financial incentives to reinforce that challenge. In
our discussion below, you will see that we addressed these
matters in a number of aspects of our executives
compensation.
Compensation
Program
Our executive compensation program has a number of components,
including:
|
|
|
|
|
Base Salary
|
|
|
|
Short-Term Incentives
|
|
|
|
Long-Term Incentives
|
|
|
|
Retirement Benefits
|
|
|
|
Severance policy
|
|
|
|
Perquisites
|
Each of these components is discussed below.
Base
Salary
We target base salaries for senior management at levels that are
comparable to base salaries for similar positions at similarly
sized technology companies. We review surveys periodically to
ensure that our salaries are competitive. We also take into
account other elements of our compensation package so that
senior managements total compensation opportunity will be
competitive.
In the first few years after our initial public offering in
2001, we experienced significant declines in our revenue as a
result of extreme drops in market demand for telecommunications
products of the types we supplied. In response to these
declines, we exited our optoelectronics business and sold or
discontinued a number of other product lines.
We believe a significantly lower revenue level and less complex
business make it appropriate to consider whether lower salary
levels are appropriate; however, we also recognized that the
declining revenues were resulting in lower bonuses and no value
being recognized from stock options and chose not to adjust
executives base salaries as the size and complexity of the
company became smaller. However, in 2006, we hired a new CEO and
moved new people into senior management positions and did take
into account the size and complexity of the company in
determining executive officer salaries.
Bonus
Each year, our executives have an opportunity to earn a bonus.
We set financial performance goals each year based on our view
of what would be an acceptable level of performance for the
company, taking into account
56
managements outlook for the year, semiconductor industry
conditions and competitors performance. The extent to
which these goals are met determines in large part the level of
executive bonuses. We feel that financial performance measures
alone do not fully reflect executives contributions to the
company and also take into account personal performance
characteristics such as quality of strategy, leadership and
execution in setting final bonus amounts. In the past, our
actual performance has generally not reached a level we viewed
as meriting target level bonuses and actual payouts have
generally been much lower than target level as a result.
In fiscal 2006, bonuses for all employees, including senior
management, were tied to achievement of annual revenue and
non-GAAP operating margin targets. In addition, the company had
to meet a non-GAAP net income test in order for any bonuses to
be payable to the officers named in the Summary Compensation
Table, other than Mr. Clemmer. Non-GAAP operating margin
and non-GAAP net income excluded items that we felt were not
appropriate either to hold against employees, such as
restructuring charges, or to give employees the benefit of, such
as a large gain from the settlement of tax contingencies.
We set the non-GAAP net income target used to determine whether
named executive officers could earn any bonus in October 2005,
before the senior management changes occurred. Because this
target determines only whether bonuses can be paid and not the
actual amount, we set the target at a level below which we felt
that we would not want to pay bonuses to senior executives,
based on the then-current forecast for fiscal 2006. This target
was met. Making the non-GAAP net income test does not, however,
guarantee that any bonus will be paid. Making the non-GAAP net
income target does make any bonuses paid performance-based
compensation for purposes of Section 162(m) of the
Internal Revenue Code and allows us to deduct the amount of the
bonuses for federal income tax purposes.
Normally, we would set the other targets used to determine
executive officer bonuses at the beginning of the fiscal year in
October. This year, because of the significant management
changes, we felt that we needed to wait until new management
could review the business forecasts before setting the
targets. We discussed bonus metrics at a meeting in December
2005, and then set the revenue and non-GAAP operating margin
targets in April 2006 based on managements outlook for the
year at that time as approved by the board of directors. At that
time, we set the levels of performance required to achieve
bonuses paid at the target level above managements
then-current outlook for the year.
The companys performance in fiscal 2006 did not meet the
threshold level of performance for revenue and fell between the
threshold and target levels of performance for non-GAAP
operating margin and resulted in company-wide bonus funding at
less than half the target level. Bonuses for our executive
officers were adjusted based on individual and business unit
performance and relative base salaries of different officers and
ranged from 40 to 64% of target.
Equity
Awards
Last year, we awarded three types of long-term incentives to
executive officers: stock options, time-based restricted stock
units and performance-based restricted stock units. We have
historically granted stock options each year as part of our
regular compensation program. Last year we also granted
time-based and performance-based restricted stock units to
address specific issues related to the management changes. We
target long-term incentive grants, other than last years
time-based restricted stock unit awards, to provide an
above-median long-term compensation opportunity and attempt to
structure the awards so that the company must achieve
competitive or better performance in order for our officers to
actually achieve above-median long-term compensation.
We discussed and approved the equity awards that were part of
the regular compensation program at a series of meetings, the
latest of which occurred on December 1, 2005.
December 1, 2005 was the grant date for these awards. This
was also the grant date for equity awards for other employees
under our annual grant program and the annual stock option grant
received by non-employee Directors. In accordance with our
normal new-hire practice, Mr. Strohs sign-on equity
awards were granted on the first day of the month following the
commencement of his employment. Mr. Clemmers equity
awards were granted after we announced that he had been
appointed President and Chief Executive Officer.
57
Stock options. In fiscal 2006, we granted
stock options to our executive officers in order to align their
pay with stockholders interests and competitive market
practice. For each executive officer, the Compensation Committee
awarded stock options based on an evaluation of competitive
market value, the size of awards made to other executive
officers and the officers relative impact to the business.
The grants made to Messrs. Clemmer and Stroh were part of
the package offered when they joined the company, and were
larger than a typical annual grant for their positions.
Time-based restricted stock units. We felt
that the management changes at the beginning of fiscal 2006
created significant uncertainty for many of our officers. To
encourage these officers not to leave the company, we granted
them restricted stock units that would vest, or become payable
in shares of stock, if they stayed with the company for two
years.
Performance-based restricted stock units. We
also wanted to create an incentive for our management team to
improve the companys total stockholder return. To do this,
we awarded officers restricted stock units that will be paid out
four years from the date of grant if the recipient stays with
the company and a company performance test is met. That test
requires that Ageres total stockholder return over a
four-year period exceed that of a peer group. The companies
included in the peer group are: Advanced Micro Devices, Analog
Devices, Atmel, Broadcom, Intersil, LSI Logic, Marvell
Technology Group, National Semiconductor and PMC-Sierra. These
performance-based restricted stock units were granted to
Mr. Clemmer when he joined the company and to the other
executive officers on December 1, 2005, the regular, annual
grant date for our equity programs. As of November 30,
2006, our performance was meeting the performance test.
The time-based restricted stock unit awards and the
performance-based restricted stock unit awards will not
constitute performance-based compensation for
purposes of section 162(m) of the Internal Revenue Code and
thus will not be deductible for federal income tax purposes for
us to the extent that the value of those awards upon vesting,
together with other non-deductible amounts, exceeds
$1 million. We believed that adding a performance test to
the time-based restricted stock unit awards was not consistent
with why we granted the awards to retain valued
members of the management team. We felt that adding a non-GAAP
net income test, which is the test that would be required by our
stock plan, to the performance-based restricted stock units,
would have detracted from the focus that our executives would
have on the total stockholder return test and could have led to
an unintended result.
Retirement
Benefits
We have pension plans that are described in detail elsewhere in
this joint proxy statement/prospectus. Individuals hired since
July 2003, including Messrs. Clemmer and Stroh, do not
participate in these plans. Benefits under these plans depend on
a participants eligible compensation, which includes
salary and bonus. Eligible compensation does not include other
items such as stock option gains or the value of restricted
stock unit awards. We have not credited any executive officer
with more years of service under any of these plans than they
have actually served with the company or its predecessors. Our
pension plans were originally put in place by our predecessors.
Many of our competitors do not have pension plans and we have
been reducing participation and benefits under the plans in
recent years in an effort to become more competitive with other
companies in our industry.
Severance
Policy
We have an officer severance policy that provides benefits to
officers who are terminated other than for cause or who leave
the company after a change in control if they leave for
good reason. You can find a detailed description of
the policy elsewhere in this joint proxy statement/prospectus.
We provide these benefits because we want executives to focus on
the companys business and enhancing stockholder value
without undue concern about any possible loss of their job.
Perquisites
The only perquisites that we provide to our executive officers
are a car allowance and a financial counseling allowance. The
car allowance is $16,800 a year. We provide it because our
officers often travel to meetings with customers, suppliers and
investors and we do not feel it a productive use of their time
to track and submit
58
reimbursement requests for business use of their own cars. We
also believe that providing the car allowance would reduce the
need for the company to provide a car and driver to transport
executive officers to meetings. The car allowance is subject to
tax and is not grossed up. The financial counseling allowance is
$10,000 per year. We provide a tax
gross-up on
the financial counseling allowance so that our executives can
actually obtain that amount of financial counseling.
Compensation
of the Chief Executive Officer
John Dickson was our Chief Executive Officer until he retired in
late October 2005. At that time, we appointed Rick Clemmer to
succeed him. A discussion of the compensation of both
individuals follows.
Mr. Dickson
Mr. Dickson retired near the beginning of the fiscal year,
before we had made any compensation decisions for him. When he
retired, we entered into an agreement with him that provided for
benefits consistent with our Officer Severance Policy. Under the
circumstances, we believed that Mr. Dickson was entitled to
the benefit of that policy. You can find a description of this
agreement on page 54. We also agreed to pay
Mr. Dickson two additional months salary in return
for his assistance with business and customer transition issues.
Mr. Clemmer
Prior to his appointment as President and Chief Operating
Officer, Mr. Clemmer was a partner in a venture capital
firm and had his own technology consulting company in addition
to being an outside director of Agere. When he joined us, he
withdrew from these outside activities. At that time, we entered
into an employment agreement with him. You can find a
description of that agreement on page 53. In that agreement
we provided that Mr. Clemmer would receive an initial base
salary of $680,000 a year. This is lower than what
Mr. Dickson was receiving and reflects our view that a
lower salary was appropriate given the smaller size of the
company than in the past.
We made Mr. Clemmer a participant in our annual bonus
program, with a target bonus of 125% of his base salary. Because
the metrics in our annual bonus program, particularly annual
revenue, are difficult for a new CEO to impact in the
short-term, we also agreed that he would receive a bonus for
fiscal 2006 of at least $425,000. This amount is one half of his
target. This is the amount he actually received as our actual
performance would have resulted in a bonus equal to 40% of
target, or $340,000. We agreed to pay him at least $425,000 in
order to encourage him to join us and to stay at least until
that amount was paid.
In order to provide Mr. Clemmer with a more meaningful
equity stake in the company than he had as an outside director
so that his interests would quickly be aligned in a more
meaningful way with those of our stockholders, our employment
agreement with Mr. Clemmer also provided for a stock option
grant, a time-based restricted stock unit award and a
performance-based restricted stock unit award. We determined the
size and structure of these awards after discussing our
objectives and possible structures with an outside compensation
consultant. We believe that these awards provided
Mr. Clemmer with a strong incentive to improve the
companys financial performance.
Because we are based in Allentown, PA and Mr. Clemmer lived
on the West Coast of the United States, we gave him a lump sum
of $100,000, to be used for housing
and/or
commuting expenses. We also provided Mr. Clemmer $5,515 of
additional commuting benefits during an initial transition
period after he became President and Chief Executive Officer.
In addition, based on the positions and opportunities he was
giving up to join the company, we agreed that if he chose to
leave Agere before October 26, 2006, we would pay him one
years salary and bonus at target. We refer to this
arrangement below as the one-year termination
arrangement. Since he is still with the company, he will
not receive this amount. If he had chosen to leave, he would
have forfeited his right to receive the guaranteed bonus for
fiscal 2006 and all of the equity awards granted pursuant to his
employment agreement.
Mr. Clemmer, like other new hires, does not participate in
our pension plans.
59
Mr. Clemmer does participate in our Officer Severance
Policy. If, on September 30, 2006, he had been terminated
without cause and ignoring the one-year termination arrangement,
he would have been entitled to the following benefits:
|
|
|
|
|
Two years base salary and bonus at target $3,060,000
in total. This amount can be paid in a lump sum, or over a
two-year period.
|
|
|
|
If payments are made over a two-year period, he would have
received the following for that two-year period:
|
|
|
|
|
|
Continued vesting of stock options and time-based restricted
stock units.
|
|
|
|
The opportunity to earn approximately one half of his
performance-based restricted stock units if the four-year
performance test is met. If he elected a lump sum payment, this
award would have been canceled.
|
|
|
|
Continued participation in company health and welfare plans.
|
|
|
|
Continued payment of car allowance and financial counseling
allowance and tax
gross-up on
financial counseling allowance $69,708 in total.
|
In addition to the events described above, if on
September 30, 2006, Mr. Clemmer had been terminated
other than for cause or had left the company for good
reason following a recent change in control, and ignoring
the one-year termination arrangement, all of his outstanding
equity awards would have become fully vested at the time he
ceased being an employee of the company.
We believe that Mr. Clemmers total compensation for
fiscal 2006 was as follows:
|
|
|
|
|
Description of Compensation
|
|
Amount
|
|
|
Salary1
|
|
$
|
636,825
|
|
Bonus1
|
|
|
425,000
|
|
Other annual
compensation1
|
|
|
140,369
|
|
Equity
awards2
|
|
|
4,358,555
|
|
All other
compensation1
|
|
|
10,800
|
|
|
|
|
|
|
Total
|
|
$
|
5,571,549
|
|
|
|
|
1 |
|
Amount taken from Summary Compensation Table. |
|
2 |
|
This amount is the sum of the grant-date present values of
Mr. Clemmers 2006 equity awards used for financial
reporting purposes. This is an estimate of amounts that
Mr. Clemmer may receive in the future. Depending on our
stock price performance, he may receive more or less than the
amount shown. |
We believe that the amount we have paid Mr. Clemmer for
fiscal 2006 is a fair and reasonable amount.
Harold A. Wagner (Chair)
Arun Netravali
Thomas P. Salice
Rae Sedel
60
REPORT OF
THE AGERE AUDIT COMMITTEE
Ageres Audit Committee has reviewed Ageres audited
financial statements as of, and for the fiscal year ended,
September 30, 2006, and met with both management and
PricewaterhouseCoopers LLP, Ageres independent public
registered accounting firm, to discuss those financial
statements. Management has represented to Ageres Audit
Committee that the financial statements were prepared in
accordance with accounting principles generally accepted in the
United States of America.
Management has primary responsibility for Ageres financial
statements and the overall reporting process, including the
companys system of internal controls. The independent
auditors audit the annual financial statements prepared by
management, express an opinion as to whether those financial
statements present fairly, in all material respects, the
financial position, results of operations and cash flows of the
company in conformity with accounting principles generally
accepted in the United States of America and discuss with us
their independence and any other matters they are required to
discuss with us or that they believe should be raised with us.
Ageres Audit Committee oversees these processes, although
the Agere Audit Committee must rely on the information provided
to it and on the representations made by management and the
independent auditors.
Ageres Audit Committee has received from and discussed
with PricewaterhouseCoopers LLP the written disclosure and the
letter required by Independence Standards Board Standard
No. 1 (Independence Discussions with Audit Committees).
These items relate to that firms independence from the
company. Ageres Audit Committee also discussed with
PricewaterhouseCoopers LLP any matters required to be discussed
by Statement on Auditing Standards No. 61 (Communication
with Audit Committees).
Based on these reviews and discussions, the Agere Audit
Committee recommended to the Agere board of directors that
Ageres audited financial statements be included in its
annual report on
Form 10-K
for the fiscal year ended September 30, 2006.
Thomas P. Salice (Chairman)
Richard S. Hill
Harold A. Wagner
61
AGERE
PERFORMANCE GRAPHS
The following graphs compare the cumulative total stockholder
return on Agere common stock to that of the S&P 500 Index
and the S&P 500 Semiconductors Index. The graphs assume that
a $100 investment was initially made in Ageres
Class A common stock, Class B common stock and each of
the indices at the earliest date shown, and that dividends, if
any, were reinvested in all cases. The stock price performance
shown on the graph is not necessarily indicative of future price
performance. The graphs below take into account the
reclassification of each share of Class A common stock and
each share of Class B common stock into one share of common
stock on May 27, 2005. Agere stockholders now own only
common stock.
The following graph compares the return on an investment in our
Class A common stock, the S&P 500 Index and the S&P
500 Semiconductors Index from September 30, 2001 through
September 30, 2006.
Value of
a $100 Investment
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30-Sep-01
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30-Sep-02
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|
30-Sep-03
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|
30-Sep-04
|
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|
30-Sep-05
|
|
|
30-Sep-06
|
Agere Systems Inc.
|
|
|
$
|
100.00
|
|
|
|
$
|
26.57
|
|
|
|
$
|
74.15
|
|
|
|
$
|
25.36
|
|
|
|
$
|
25.14
|
|
|
|
$
|
36.06
|
|
S&P 500 Index
|
|
|
$
|
100.00
|
|
|
|
$
|
79.51
|
|
|
|
$
|
98.91
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|
|
|
$
|
112.63
|
|
|
|
$
|
126.44
|
|
|
|
$
|
140.08
|
|
S&P 500 Semiconductors Index
|
|
|
$
|
100.00
|
|
|
|
$
|
63.62
|
|
|
|
$
|
118.35
|
|
|
|
$
|
98.21
|
|
|
|
$
|
127.27
|
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|
$
|
117.28
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|
Percentage
Return
|
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|
|
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|
|
|
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|
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Fiscal 2002
|
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|
Fiscal 2003
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|
Fiscal 2004
|
|
|
Fiscal 2005
|
|
|
Fiscal 2006
|
Agere Systems Inc.
|
|
|
|
(73.43
|
)%
|
|
|
|
179.09
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%
|
|
|
|
(65.80
|
)%
|
|
|
|
(0.86
|
)%
|
|
|
|
43.42
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%
|
S&P 500 Index
|
|
|
|
(20.49
|
)%
|
|
|
|
24.40
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%
|
|
|
|
13.87
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%
|
|
|
|
12.25
|
%
|
|
|
|
10.79
|
%
|
S&P 500 Semiconductors Index
|
|
|
|
(36.38
|
)%
|
|
|
|
86.02
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%
|
|
|
|
(17.02
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)%
|
|
|
|
29.59
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%
|
|
|
|
(7.85
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)%
|
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62
The following graph compares the return on an investment in our
Class B common stock, the S&P 500 Index and the S&P
500 Semiconductors Index from June 3, 2002, the date on
which Ageres Class B common stock began trading on
the New York Stock Exchange, through September 30, 2006.
Value of
a $100 Investment
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03-Jun-02
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|
30-Sep-02
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30-Sep-03
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|
30-Sep-04
|
|
|
30-Sep-05
|
|
|
30-Sep-06
|
Agere Systems Inc.
|
|
|
$
|
100.00
|
|
|
|
$
|
31.63
|
|
|
|
$
|
92.33
|
|
|
|
$
|
32.59
|
|
|
|
$
|
33.26
|
|
|
|
$
|
47.70
|
|
S&P 500 Index
|
|
|
$
|
100.00
|
|
|
|
$
|
78.79
|
|
|
|
$
|
98.01
|
|
|
|
$
|
111.60
|
|
|
|
$
|
125.28
|
|
|
|
$
|
138.80
|
|
S&P 500 Semiconductors Index
|
|
|
$
|
100.00
|
|
|
|
$
|
49.98
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|
|
|
$
|
92.96
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|
|
|
$
|
77.14
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|
|
|
$
|
99.97
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$
|
92.12
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|
Percentage
Return
|
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|
|
|
|
|
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|
|
|
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|
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|
03-Jun-02 through
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|
30-Sep-02
|
|
|
Fiscal 2003
|
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|
Fiscal 2004
|
|
|
Fiscal 2005
|
|
|
Fiscal 2006
|
Agere Systems Inc.
|
|
|
|
(68.37
|
)%
|
|
|
|
191.92
|
%
|
|
|
|
(64.71
|
)%
|
|
|
|
2.06
|
%
|
|
|
|
43.42
|
%
|
S&P 500 Index
|
|
|
|
(21.21
|
)%
|
|
|
|
24.40
|
%
|
|
|
|
13.87
|
%
|
|
|
|
12.25
|
%
|
|
|
|
10.79
|
%
|
S&P 500 Semiconductors Index
|
|
|
|
(50.02
|
)%
|
|
|
|
86.02
|
%
|
|
|
|
(17.02
|
)%
|
|
|
|
29.59
|
%
|
|
|
|
(7.85
|
)%
|
|
|
|
|
|
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|
63
THE
MERGER
The following is a description of the material aspects of the
merger, including the merger agreement. While we believe that
the following description covers the material terms of the
merger, the description may not contain all of the information
that is important to you. We encourage you to read carefully
this entire joint proxy statement/prospectus, including the
merger agreement attached to this joint proxy
statement/prospectus as Annex A, for a more complete
understanding of the merger.
Background
of the Merger
LSI and Agere are both participants in the semiconductor
industry, and are very familiar with each others
businesses. Each of them routinely evaluates business
alternatives and strategic opportunities as part of their
ongoing evaluation of developments in the marketplace, and
participates in discussions with third parties regarding
possible transactions. Senior management of LSI and Agere from
time to time in recent years have informally discussed the
future of the semiconductor and storage systems sectors and
various ways in which the two companies could work together,
including a possible combination of LSI and Agere.
In June 2006, Mr. Abhijit Talwalkar, President and Chief
Executive Officer of LSI, and Mr. Richard Clemmer,
President and Chief Executive Officer of Agere, met and
discussed the hard disk drive and networking businesses.
Mr. Talwalkar and Mr. Clemmer met again on
July 13, 2006 and August 3, 2006 and discussed their
respective businesses. Shortly thereafter, Mr. Talwalkar
contacted Mr. Clemmer suggesting a meeting to explore a
possible combination of their two companies. On August 21,
2006, Agere and LSI entered into a confidentiality agreement to
facilitate the exchange of due diligence materials between the
two companies. On August 23, 2006, Mr. Talwalkar,
together with Mr. Jeffrey Richardson, Executive Vice
President for LSIs Custom Solutions Group, Mr. James
Anderson, Senior Director of Marketing and Strategic Planning
for LSIs Custom Solutions Group, and Mr. Eric
Williams, Senior Director, Corporate Development, met at the
offices of Goldman Sachs in Los Angeles to discuss the
businesses of Agere and LSI, their respective strategies and the
challenges and opportunities that each company faced. On August
28 and 29, 2006, Mr. Richardson met with
Mr. Samir Samhouri, executive vice president with and
general manager of Ageres Networking Division, and
Mr. Anderson at Ageres offices in Allentown,
Pennsylvania to discuss the respective businesses of LSI and
Agere, as well as a possible combination of the two companies.
Peter Kelly, Chief Financial Officer of Agere, and
Mr. Bryon Look, Chief Financial Officer of LSI, held
similar discussions on the same dates, and also discussed
potential cost synergies that could result from a combination of
the two businesses.
On August 22, 2006, members of the Agere board of directors
received an update on the status of contacts between LSI and
Agere from Agere management and representatives of Goldman
Sachs. In addition, the Agere board of directors authorized
management and representatives of Goldman Sachs to pursue
contacts with certain private equity investors regarding their
potential interest in a transaction involving Agere. During
September and October 2006, Mr. Clemmer, Mr. Kelly,
Ms. Jean Rankin, executive vice president, general counsel
and secretary of Agere and representatives of Goldman Sachs met
with several private equity investors, identified with the
assistance of Goldman Sachs and Agere management, in order to
gauge potential interest in an acquisition of Agere. None of
these meetings resulted in any offers that were acceptable to
Ageres board of directors.
On September 5, 2006, Mr. Talwalkar telephoned
Mr. Clemmer to further discuss the potential for a business
combination transaction. Although no particular transaction was
discussed, both agreed that the possibility of a transaction
between LSI and Agere merited further analysis and consideration.
On September 11, 2006, Mr. Talwalkar provided the LSI
board of directors with a telephonic update of the discussions
with Mr. Clemmer. On September 18, 2006, the LSI board
of directors again met telephonically to discuss the transaction
with members of LSI management, representatives of Morgan
Stanley, financial advisor to LSI, and LSIs legal advisor,
Wilson Sonsini. The LSI board of directors was provided with a
detailed overview of the Agere business units, the framework for
a formal term sheet, and a request for approval for continuing
the investigation by LSI management of a possible business
combination.
On September 24, 2006, the LSI board of directors met
telephonically with members of LSI management, representatives
of Morgan Stanley and Wilson Sonsini for the purpose of
reviewing a proposed non-binding set of transaction terms, which
included (i) merger transaction with a fixed exchange ratio
pursuant to which Agere
64
stockholders would receive 2.05 shares of LSI common stock
for each Agere share, (ii) proposals with respect to the
corporate governance of the combined company, and in particular
provided that Mr. Talwalkar would be the Chief Executive
Officer of the combined company, that the combined company would
have a nine member board, of which four members would be
nominated by Agere, and that the chairman of the board of
directors of the combined company would be an independent
director of LSI and (iii) a proposed termination fee of
$125 million if the transaction were terminated under
certain circumstances. The LSI board of directors authorized
management to deliver the non-binding set of transaction terms
to management of Agere.
On September 25, 2006, Mr. Talwalkar and
Mr. Clemmer met in Los Angeles to discuss the
companies respective business models and the strategic
rationale for a possible business combination. During this
meeting, Mr. Talwalkar and Mr. Clemmer discussed a
tax-free exchange of stock to effect the transaction in a manner
that would enable the stockholders of both companies to realize
the benefits of a combination. Mr. Talwalkar proposed a
non-binding set of transaction terms for a merger of LSI and
Agere, which included (i) a fixed exchange ratio pursuant
to which Agere stockholders would receive 2.05 shares of
LSI common stock for each Agere share, (ii) proposals with
respect to the corporate governance of the combined company, and
in particular provided that Mr. Talwalkar would be the
Chief Executive Officer of the combined company, that the
combined company would have a nine member board, of which four
members would be nominated by Agere, and that the chairman of
the board of directors of the combined company would be an
independent director of LSI, and (iii) a proposed
termination fee of $125 million if the transaction were
terminated under certain circumstances.
On September 28, 2006, members of the Agere board of
directors received a telephonic update on the status of contacts
between LSI and Agere from Agere management and representatives
of Goldman Sachs.
On October 10, 2006, members of Agere senior management,
together with representatives of Goldman Sachs, met with members
of LSI senior management and representatives of Morgan Stanley,
financial advisor to LSI, in Milpitas, California. During this
meeting, Agere and LSI senior management reviewed their
respective businesses, and further discussed the potential
synergies of a business combination between the two companies.
On October 11, 2006, representatives of Agere and Goldman
Sachs had a conference call with representatives of LSI and
Morgan Stanley in which the participants continued to discuss
the respective businesses and operations of Agere and LSI.
On October 13, 2006, Mr. Clemmer and
Mr. Talwalkar met to discuss the progress made by their
respective teams in analyzing the strategic merits of a business
combination, and each agreed to continue the review and analysis
of the others business and operations.
During October 2006, representatives of LSI and Agere continued
to exchange information about their respective businesses, and
had several telephonic meetings in which business and
operational issues were discussed. Members of senior management
of Agere, together with representatives of Goldman Sachs, had
periodic discussions with LSI and representatives of Morgan
Stanley throughout October and early November 2006 regarding the
exchange ratio and the key social and governance issues
presented by the merger. In this regard, Agere consulted with
Goldman Sachs and Skadden, Arps, and LSI consulted with Morgan
Stanley and Wilson Sonsini.
On October 13 and October 19, 2006, the LSI board of
directors met telephonically. At these meetings,
Mr. Talwalkar and other members of LSI management discussed
with the board the potential strategic benefits of the
transaction, risks related to the transaction and alternative
strategies including other acquisition targets and continuing on
a standalone basis. In addition, LSI management updated the
board on the status of managements due diligence
investigation.
On October 19, 2006, members of the Agere board of
directors received a telephonic update on the status of contacts
between LSI and Agere from Agere management and representatives
of Goldman Sachs.
At a regularly scheduled meeting of the Agere board of directors
on October 24, 2006, Mr. Clemmer briefed the board
members on discussions with senior management of LSI.
Representatives of Goldman Sachs and Skadden, Arps were present
for the portion of the meeting during which the LSI proposal was
discussed. At this meeting, Ageres board of directors
discussed the possibility of a transaction with LSI and the
terms of LSIs proposal. The Agere board of directors
authorized management to continue due diligence and discussions
with LSI
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on the exchange ratio, governance and other issues presented by
LSIs proposal, in order to ascertain whether this
transaction was beneficial to Agere and its stockholders and, if
so, whether an acceptable proposal might be available.
On November 2, 2006, Agere provided a revised proposal to
LSI seeking (i) a fixed exchange ratio resulting in 49.99%
of the diluted equity of the combined company being held by
Agere stockholders, (ii) governance proposals for the
combined company, including a combined company board of
directors comprised of five directors from LSI and five
directors from Agere, and a chairman selected from among the
Agere independent directors, (iii) maintenance of current
levels of employee compensation and benefits for a two-year
period following closing, and (iv) a termination fee equal
to 3% of the imputed Agere equity value.
On November 3, 2006, the LSI board of directors met
telephonically with members of LSI management, and
representatives of Morgan Stanley and Wilson Sonsini for the
purpose of reviewing the revised proposal provided by Agere. The
board considered the Agere proposal, including the impact of
different valuation scenarios and corporate governance matters
related to the proposal.
Discussions between Agere and LSI continued on a regular basis
during November 2006 with respect to the exchange ratio and
other key terms of the proposed transaction. On November 7,
2006, representatives of Morgan Stanley delivered to
representatives of Goldman Sachs a revised set of non-binding
proposed transaction terms which included (i) a fixed
exchange ratio pursuant to which Agere stockholders would
receive 2.15 LSI shares for each share of Agere common stock,
(ii) governance terms consistent with LSIs earlier
proposal, (iii) maintenance of current levels of employee
compensation and benefits for a two-year period and (iv) a
termination fee equal to 3% of the imputed Agere equity value.
On November 17, 2006, LSI, through Wilson Sonsini,
delivered a draft merger agreement to Agere through its legal
advisor Skadden, Arps. From November 17, 2006 through
December 3, 2006, representatives of Agere and Skadden,
Arps reviewed and negotiated the draft merger agreement with LSI
and Wilson Sonsini.
On November 9, 2006, at a regularly-scheduled meeting of
the LSI board of directors, representatives of Morgan Stanley
reviewed the financial terms of the proposed transaction and
representatives from Wilson Sonsini updated the board on
outstanding issues between the parties.
On November 15 and 16, 2006, members of Agere senior management,
together with representatives of Goldman Sachs, met with members
of LSI senior management and representatives of Morgan Stanley
in San Jose, California. During these meetings, Agere and LSI
senior management reviewed their respective businesses, and
further discussed the potential synergies of a business
combination between the two companies.
The LSI board of directors met telephonically on
November 17, 2006 with members of LSI management and
representatives of Morgan Stanley and Wilson Sonsini for
the purpose reviewing the ongoing due diligence and outstanding
issues between the parties.
The Agere board of directors met on November 20, 2006, with
representatives of Goldman Sachs and Skadden, Arps in
attendance. At the invitation of the Agere board of directors,
Mr. Talwalkar made a presentation to the Agere board of
directors on the business and operations of LSI, as well as the
strategic rationale for the proposed transaction. Following
Mr. Talwalkars presentation, members of Agere
management and representatives of Goldman Sachs and Skadden,
Arps briefed the Agere board of directors on the status of
discussions with LSI, the ongoing due diligence and outstanding
issues between the parties, including the proposed exchange
ratio, the proposed governance terms, and the terms of the
non-solicitation and recommendation covenants. Representatives
of Goldman Sachs reviewed with Ageres board of directors
its financial analyses with respect to LSIs proposal.
Following discussion and review with its legal and financial
advisors, the Agere board authorized further discussions with
LSI for the purpose of determining whether an agreement on price
and other material terms could be reached.
Concurrently with the review and discussions regarding the draft
merger agreement, representatives of LSI, Agere, Skadden, Arps
and Wilson Sonsini conducted due diligence investigations with
respect to business, legal, regulatory, tax and other matters of
LSI and Agere. LSI and Agere also had extensive discussions
during this time with respect to contractual issues, including
(i) the non-solicitation covenant, including either
partys ability to have discussions with potential
third-party acquirers, (ii) the circumstances under which
either party could change its
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recommendation of the transaction, (iii) the nature and
extent of representations and warranties to be given by each
company, (iv) the conditions to closing and (v) the
circumstances under which termination fees would be payable.
On November 22, 2006, the LSI board of directors met
telephonically with members of LSI management, representatives
of Morgan Stanley and Wilson Sonsini for the purpose reviewing
the proposed transaction including proposed exchange ratios and
corporate governance matters.
On November 30, 2006, members of Agere senior management,
together with representatives of Goldman Sachs and Skadden, Arps
provided members of the Agere board of directors with a
telephonic update as to the status of negotiations with LSI. The
representatives of Goldman Sachs informed the board members as
to the status of discussions regarding the exchange ratio, and
indicated that in order to obtain additional enhancement of the
exchange ratio it would likely be necessary to agree to reduce
the representation of Agere directors on the board of the
combined company to three directors and agree that an LSI
independent director would be chairman of the board of directors
of the combined company. The Agere board members discussed,
among other things, the proposed exchange ratio and the
corporate governance of the combined company, and gave guidance
to Ageres senior management with respect to the
negotiation of those terms with LSI.
On November 30, 2006, the LSI board of directors met
telephonically with members of LSI management and
representatives of Morgan Stanley and Wilson Sonsini for the
purpose reviewing the proposed transaction. The board discussed
proposed exchange ratios for the transaction and governance
related matters and received an update on the due diligence
review conducted by management and LSIs advisors.
Following further discussions between LSI and Agere and their
representatives, LSI agreed to increase the exchange ratio to
2.16 LSI shares for each Agere share and Agere agreed to accept
the governance provisions requested by LSI. On December 3,
2006, Agere, LSI and their respective legal advisors finalized a
proposed merger agreement to be executed by the parties. Later
that day, a telephonic meeting of the Agere board of directors
was convened to consider whether to approve the merger
agreement. At the meeting, Mr. Clemmer and Ms. Rankin
informed the Agere board of directors that the merger agreement
had been finalized and included an exchange ratio of 2.16 LSI
shares for each Agere share. Management then reviewed certain
aspects of the proposed transaction. Representatives of Skadden,
Arps reviewed certain legal matters, and the terms of the
proposed merger agreement, including the governance terms,
representations and warranties, covenants, conditions to
completion of the merger and termination provisions. Goldman
Sachs reviewed with Ageres board of directors its
financial analyses with respect to the proposed transaction and
then rendered its oral opinion, subsequently confirmed by
delivery of its written opinion, dated December 3, 2006, to
Ageres board of directors that, as of the date of its
opinion and based upon and subject to the factors and
assumptions set forth in the opinion, the exchange ratio of
2.16 shares of LSI common stock to be received for each
share of Agere common stock pursuant to the merger agreement was
fair from a financial point of view to the holders of shares of
Agere common stock. The Agere board of directors, by unanimous
vote of the directors present, determined that the merger
agreement and the transactions contemplated by the merger
agreement are advisable and in the best interests of the Agere
stockholders and approved and adopted the merger agreement and
the transactions contemplated thereby, and determined to
recommend that the Agere stockholders adopt the merger agreement.
Also on December 3, 2006, a telephonic meeting of the LSI
board of directors was convened to consider whether to approve
the merger agreement. At the meeting, LSI management informed
the LSI board of directors that the merger agreement had been
finalized and included an exchange ratio of 2.16 LSI shares for
each Agere share. Management then reviewed certain aspects of
the proposed transaction. Representatives of Wilson Sonsini
reviewed certain legal matters, and the terms of the proposed
merger agreement, including the governance terms,
representations and warranties, covenants, conditions to
completion of the merger and termination provisions. Morgan
Stanley, delivered its oral opinion, later confirmed in writing,
that, as of December 3, 2006 and based upon and subject to
the factors and assumptions set forth in the opinion, the
exchange ratio pursuant to the proposed merger agreement was
fair from a financial point of view to LSI. A description of
this opinion appears under The Merger
Consideration of the Merger by the LSI Board of Directors.
Following such discussion, the LSI board of directors, by
unanimous vote, determined that the merger agreement and the
transactions contemplated by the merger agreement are advisable
and in the best interests of the LSI stockholders and approved
the merger agreement
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and the transactions contemplated thereby, and determined to
recommend that the LSI stockholders approve the issuance of LSI
common stock in connection with the merger.
Promptly after the meetings of the boards of directors of LSI
and Agere, the management of LSI and Agere executed the merger
agreement and a joint press release announcing the transaction
was issued early in the morning of December 4, 2006.
Reasons
for the Merger
Overview
The boards of directors and management teams of both LSI and
Agere believe that the proposed merger represents the best
strategic alternative for delivering increased value to our
respective stockholders.
LSI and Agere believe the merger presents a unique opportunity
to create a combined entity that will offer a comprehensive set
of building block solutions, including semiconductors, systems
and related software for storage, networking and consumer
electronics products, and that the merger should allow the
combined company to deliver significant benefits to its
customers, stockholders and employees. The LSI and Agere boards
of directors and their respective management teams each analyzed
various alternative strategies to address their respective risks
and challenges as stand-alone entities. See the section entitled
Background of the Merger beginning on page 64.
After reviewing and debating their respective strategic
alternatives and the opportunity for the combined company
presented by the merger, as more fully described below, the LSI
and Agere boards of directors each determined to pursue the
merger in lieu of the other alternatives because each believes
the merger will create a combined company that will be able to
achieve the strategic and financial benefits described below.
The LSI and Agere boards of directors each identified the
following anticipated strategic and financial benefits of the
merger:
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Complementary Businesses. The products and
development capabilities of the two companies are complementary,
and should enable the combined company to compete more
effectively in attractive markets. The combined company should
be stronger than either company on its own, with greater breadth
and depth in storage and networking/communications product
offerings and a greater ability to develop new product offerings
in these market segments. In addition, the combined company is
expected to benefit from access to large growth markets, such as
those provided by the mobile products business of Agere and the
consumer products business of LSI.
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Customers. The combined company will have deep
relationships with many of the market-leading customers in our
chosen market segments. LSI and Agere expect to improve their
existing ability to expand current customer relationships, and
expect to increase the penetration of new customer accounts. LSI
and Agere believe that the combination of the two
companies product lines and engineering resources should
enable the combined company to meet customer needs more
effectively and to deliver more complete solutions to our
customers. In addition, LSI and Agere believe the larger sales
organization, greater marketing resources and financial strength
of the combined company may lead to improved opportunities for
marketing the combined companys products.
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Engineering Talent. The combined company will
have over 4,200 engineers, including over 1,700 that hold
masters or doctorate degrees, which should enable the combined
company to compete more effectively by developing innovative
products and delivering greater value to customers more rapidly
than either company could do on a standalone basis.
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Intellectual Property Portfolio. The combined
company will have over 10,000 pending and issued
U.S. patents, which will be one of the largest intellectual
property portfolios in the semiconductor industry. This
portfolio is expected to provide the combined company with
additional licensing opportunities.
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Reduction in Operating Costs. The combined
company is expected to realize substantial cost savings
beginning in 2007, with annual cost savings reaching at least
$125 million in 2008 from increased efficiencies in
manufacturing and operating expenses. LSI and Agere expect the
combined company to achieve benefits from exercising greater
purchasing power with its suppliers; consolidation and reduction
of
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areas of overlap in operating expenses; and elimination of
redundant expenses, including the expenses of maintaining two
separate public companies.
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Stronger Financial Position. The combined
company will have greater scale and financial resources,
including total cash and short term investments of approximately
$1.4 billion on a pro forma basis as adjusted to reflect
the repayment of LSIs convertible notes in November 2006.
LSI and Agere expect that this stronger financial position will
improve the combined companys ability to support product
development strategies; to respond more quickly and effectively
to customer needs, technological change, increased competition
and shifting market demand; and to pursue strategic growth
opportunities in the future, including acquisitions.
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Stock-for-Stock
Transaction with Fixed Exchange Ratio. The
stockholders of each company will share in the benefits expected
from the synergies and cost savings the combined company will
generate. The fact that the merger consideration is based on a
fixed exchange ratio provides certainty as to the number of
shares of LSI common stock that will be issued to Agere
shareholders.
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There can be no assurance that the anticipated strategic and
financial benefits of the merger will be achieved, including
that the anticipated cost savings resulting from the merger will
be achieved
and/or
reflected in the trading price of LSI common stock following the
completion of the merger.
Consideration
of the Merger by the LSI Board of Directors
Recommendation
of the LSI Board of Directors
At a meeting held on December 3, 2006, the LSI board of
directors unanimously:
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determined that the merger agreement and the transactions
contemplated by the merger agreement are advisable and in the
best interests of the LSI stockholders;
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approved the merger agreement;
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directed that the issuance of shares of LSI common stock in
connection with the merger be submitted for consideration by LSI
stockholders at an LSI special meeting; and
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resolved to recommend that the LSI stockholders vote
for the proposal to approve the issuance of shares
of LSI common stock in connection with the merger.
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Among other things considered by the LSI board of directors in
making this recommendation, the LSI board of directors requested
and considered the written opinion of Morgan Stanley, described
below in the section entitled Opinion of LSI Financial
Advisor beginning on page 71, that as of
December 3, 2006, and subject to the assumptions,
considerations and limitations set forth in its opinion, the
exchange ratio provided for in the merger agreement is fair,
from a financial point of view, to LSI. The Morgan Stanley
opinion addresses only the fairness of the exchange ratio
pursuant to the merger agreement from a financial point of view
to LSI. The LSI board of directors has determined that the
merger agreement and the transactions contemplated thereby are
advisable and in the best interests of the LSI stockholders,
based upon its consideration of the Morgan Stanley opinion and
numerous other factors described below.
In reaching its decision to approve the merger agreement, the
LSI board of directors consulted with LSIs management,
LSIs legal counsel regarding the legal terms of the
merger, LSIs business consultants regarding the strategic
aspects of the merger, and LSIs financial advisors
regarding the financial aspects of the merger and the fairness,
from a financial point of view, of the exchange ratio to LSI.
The factors that the LSI board of directors considered in
reaching its determination include, but were not limited to, the
following:
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the strategic benefits of the merger, as described in the
section entitled Reasons for the Merger beginning on
page 68 of this joint proxy statement/prospectus;
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historical information concerning LSIs and Ageres
respective businesses, prospects, financial performance and
condition, operations, technology, management and competitive
position, including public reports concerning results of
operations during the most recent fiscal year and fiscal quarter
for each company filed with the Securities and Exchange
Commission;
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managements view of the financial condition, results of
operations and businesses of LSI and Agere before and after
giving effect to the merger;
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current financial market conditions and historical market
prices, volatility and trading information with respect to the
common stock of LSI and the common stock of Agere;
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the relationship between the market value of the common stock of
Agere and the consideration to be paid to stockholders of Agere
in connection with the merger;
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the belief that the terms of the merger agreement, including the
parties representations, warranties and covenants, and the
conditions to their respective obligations, are reasonable;
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managements view of the prospects of LSI as an independent
company;
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other strategic alternatives for LSI, including the potential to
enter into strategic relationships with third parties or acquire
or combine with third parties;
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detailed financial analyses and pro forma and other information
with respect to LSI and Agere presented by Morgan Stanley,
including Morgan Stanleys opinion to the effect that, as
of the date of the written opinion, and based upon and subject
to the considerations and limitations set forth in its opinion,
the exchange ratio pursuant to the merger agreement was fair,
from a financial point of view, to LSI. A copy of Morgan
Stanleys written opinion is attached to this joint proxy
statement/prospectus as Annex B;
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the impact of the merger on LSIs customers, suppliers and
employees; and
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reports from management, legal and financial advisors as to the
results of the due diligence investigation of Agere.
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In addition, the LSI board of directors also identified and
considered a variety of potentially negative factors in its
deliberations concerning the merger, including, but not limited
to:
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the risk that the potential benefits sought in the merger,
including anticipated synergies, might not be fully realized;
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the possibility that the merger might not be completed, or that
completion might be unduly delayed;
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the effect of public announcement of the merger on LSIs
sales and operating results, and LSIs ability to attract
and retain key management, marketing and technical personnel;
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the substantial charges to be incurred in connection with the
merger, including costs of integrating LSI and Agere and
transaction expenses arising from the merger;
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the risk that despite the efforts of the combined company, key
technical and management personnel might not remain employed by
the combined company; and
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various other risks associated with the merger and the
businesses of LSI and the combined company described in the
section entitled Risk Factors beginning on
page 14 of this joint proxy statement/prospectus.
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The LSI board of directors concluded, however, that these
negative factors could be managed or mitigated by LSI or by the
combined company or were unlikely to have a material impact on
the merger or the combined company, and that, overall, the
potentially negative factors associated with the merger were
outweighed by the potential benefits of the merger.
The above discussion of the material factors considered by the
LSI board of directors is not intended to be exhaustive, but
does set forth the principal factors considered by the LSI board
of directors. The LSI board of directors collectively reached
the unanimous conclusion to approve the merger agreement and the
merger in light of the various factors described above and other
factors that each member of the LSI board of directors felt were
appropriate. In view of the wide variety of factors considered
by the LSI board of directors in connection with its evaluation
of the merger and the complexity of these matters, the LSI board
of directors did not consider it practical, and did not attempt,
to quantify, rank or otherwise assign relative weights to the
specific factors it considered in
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reaching its decision. Rather, the LSI board of directors made
its recommendation based on the totality of information
presented to and the investigation conducted by it. In
considering the factors discussed above, individual directors
may have given different weights to different factors.
The LSI board of directors believes that the merger is
advisable and in the best interests of the LSI stockholders.
Opinion
of LSI Financial Advisor
LSI retained Morgan Stanley to provide it with financial
advisory services and a financial opinion in connection with a
possible merger, acquisition or other strategic combination. The
LSI board of directors selected Morgan Stanley to act as its
financial advisor based on Morgan Stanleys qualifications,
expertise and reputation and its knowledge of the business and
affairs of LSI. At the meeting of the LSI board of directors on
December 3, 2006, Morgan Stanley rendered its oral opinion,
subsequently confirmed in writing, that as of December 3,
2006, and based upon and subject to the various considerations
set forth in the opinion, the exchange ratio pursuant to the
merger agreement was fair, from a financial point of view, to
LSI.
The full text of the written opinion of Morgan Stanley, dated as
of December 3, 2006, is attached to this joint proxy
statement/prospectus as Annex B. The opinion sets forth,
among other things, the assumptions made, procedures followed,
matters considered and limitations on the scope of the review
undertaken by Morgan Stanley in rendering its opinion. LSI
stockholders are urged to read the opinion provided by Morgan
Stanley to the LSI board of directors carefully and in its
entirety. In addition, LSI stockholders should carefully
consider the following description of the analysis performed by
Morgan Stanley in connection with rendering its opinion when LSI
stockholders determine whether to approve the issuance of shares
of LSI common stock in connection with the merger. Morgan
Stanleys opinion is directed to the LSI board of directors
and addresses only the fairness from a financial point of view
of the exchange ratio pursuant to the merger agreement to LSI as
of the date of the opinion. It does not address any other
aspects of the merger and does not constitute a recommendation
to any holder of LSI common stock as to how to vote at the LSI
special meeting with respect to the proposal to approve the
issuance of shares of LSI common stock in connection with the
merger. The summary of the opinion of Morgan Stanley set forth
in this joint proxy statement/prospectus is qualified in its
entirety by reference to the full text of the opinion.
In connection with rendering its opinion, Morgan Stanley, among
other things:
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reviewed certain publicly available financial statements and
other business and financial information of LSI and Agere,
respectively;
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reviewed certain internal financial statements and other
financial and operating data concerning LSI and Agere,
respectively, prepared by the managements of LSI and Agere,
respectively;
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reviewed certain financial projections concerning LSI and Agere,
respectively, prepared by the managements of LSI and Agere,
respectively;
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discussed the past and current operations and financial
condition and the prospects of LSI and Agere, respectively, with
senior executives of LSI and Agere, respectively;
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discussed certain strategic, financial and operational benefits
anticipated from the merger with the managements of LSI and
Agere, respectively;
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reviewed the pro forma financial impact of the merger on
LSIs earnings per share, consolidated capitalization and
financial ratios;
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reviewed the reported prices and trading activity for LSI common
stock and Agere common stock, respectively;
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compared the financial performance of LSI and Agere,
respectively, and the prices and trading activity of LSI common
stock and Agere common stock, respectively, with that of certain
other publicly-traded companies comparable with LSI and Agere,
respectively, and their securities;
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reviewed the financial terms, to the extent publicly available,
of certain comparable acquisition transactions;
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participated in discussions and negotiations among
representatives of LSI and Agere and their financial and legal
advisors;
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reviewed the merger agreement and certain related documents; and
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performed such other analyses and considered such other factors
as Morgan Stanley deemed appropriate.
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In arriving at its opinion, Morgan Stanley assumed and relied
upon without independent verification the accuracy and
completeness of the information supplied or otherwise made
available to it by LSI and Agere for the purposes of its
opinion. With respect to the internal financial statements and
projections, including information relating to the strategic,
financial and operational benefits anticipated from the merger
and assessments regarding the prospects of LSI and Agere, Morgan
Stanley assumed that they were reasonably prepared on bases
reflecting the best currently available estimates and judgments
of the future financial performance of LSI and Agere,
respectively. In addition, Morgan Stanley assumed that the
merger would be consummated in accordance with the terms set
forth in the merger agreement without any waiver, amendment or
delay of any terms or conditions, including, among other things,
that the merger will be treated as a tax-free reorganization
pursuant to the Internal Revenue Code of 1986, as amended.
Morgan Stanley also assumed that in connection with the receipt
of all the necessary regulatory approvals for the proposed
merger, no restrictions would be imposed or delays would result
that would have a material adverse affect on the contemplated
benefits expected to be derived in the proposed merger. Morgan
Stanley is not a legal, tax, regulatory or actuarial advisor.
Morgan Stanley is a financial advisor only and relied upon,
without independent verification, the assessment of LSI and its
legal, tax, regulatory and actuarial advisors with respect to
such matters.
Morgan Stanley relied upon, without independent verification,
the assessment by the managements of LSI and Agere of:
(i) the strategic, financial and other benefits expected to
result from the merger; (ii) the timing and risks
associated with the integration of LSI and Agere;
(iii) their ability to retain key employees of LSI and
Agere, respectively and (iv) the validity of, and risks
associated with, LSIs and Ageres existing and future
intellectual property, products, services and business models.
Morgan Stanley did not make any independent valuation or
appraisal of the assets or liabilities of LSI and Agere, nor was
Morgan Stanley furnished with any such appraisals. Morgan
Stanleys opinion was necessarily based on financial,
economic, market and other conditions as in effect on, and the
information made available to it as of December 3, 2006.
Events occurring after the date thereof may affect Morgan
Stanleys opinion and the assumptions used in preparing it,
and Morgan Stanley does not assume any obligation to update,
revise or reaffirm its opinion.
The following is a brief summary of the material analyses
performed by Morgan Stanley in connection with its oral opinion
and the preparation of its written opinion letter dated
December 3, 2006. The various analyses summarized below
were based on closing prices for the common stock of LSI and
Agere as of December 1, 2006, the last full trading day
preceding the day of the special meeting of the LSI board of
directors to consider and approve, adopt and authorize the
merger agreement. Although each analysis was provided to the LSI
board of directors, in connection with arriving at its opinion,
Morgan Stanley considered all of its analyses as a whole and did
not attribute any particular weight to any analysis described
below. Some of these summaries of financial analyses include
information presented in tabular format. In order to fully
understand the financial analyses used by Morgan Stanley,
the tables must be read together with the text of each summary.
The tables alone do not constitute a complete description of the
financial analyses.
On December 3, 2006, LSI and Agere entered into a merger
agreement whereby each share of Agere common stock would be
converted into the right to receive 2.16 shares of LSI
common stock. Based on the closing prices of LSI common stock as
of December 1, 2006, this exchange ratio represented an
implied price of $22.81 per share of Agere common stock.
Based on the exchange ratio and shares, restricted stock units
and options outstanding as of September 30, 2006, Morgan
Stanley calculated that as a result of the merger, LSIs
stockholders would own approximately 52% of the combined company
on a fully diluted basis using the treasury stock method and
Ageres shareholders would own approximately 48% following
completion of the merger pursuant to the merger agreement.
72
Agere
Trading Range Analysis. Morgan Stanley
performed a trading range analysis to provide background and
perspective with respect to the historical share prices of Agere
common stock. Morgan Stanley reviewed the range of closing
prices of Agere common stock for various periods ended on
December 1, 2006. Morgan Stanley observed the following:
|
|
|
|
|
Period Ended December 1, 2006
|
|
Range of Closing Prices
|
|
Last 30 Trading Days
|
|
$
|
15.90 - $18.72
|
|
Last 60 Trading Days
|
|
$
|
14.51 - $18.72
|
|
Last 90 Trading Days
|
|
$
|
14.38 - $18.72
|
|
Last 12 Months
|
|
$
|
12.00 - $18.72
|
|
Morgan Stanley noted that as of December 1, 2006 the
closing price per share of Agere common stock as of that date
was $17.79.
Historical Exchange Ratio Range
Analysis. Morgan Stanley reviewed the ratios of
the range of closing prices of Agere common stock divided by the
corresponding closing prices of LSI common stock over various
periods ended on December 1, 2006. For each of the periods
reviewed, Morgan Stanley observed the relevant range of low and
high exchange ratios.
Morgan Stanley calculated a range of implied ownership of Agere
shareholders on a fully diluted basis, using the treasury stock
method, based on observed relevant range of low and high
exchange ratios. The following table summarizes Morgan
Stanleys analysis:
|
|
|
|
|
|
|
|
|
Range of
|
|
Implied
|
Period Ended December 1, 2006
|
|
Exchange Ratios
|
|
Agere Ownership
|
|
Last 30 Trading Days
|
|
|
1.63x - 1.97
|
x
|
|
40% - 45%
|
Last 60 Trading Days
|
|
|
1.63x - 2.02
|
x
|
|
40% - 46%
|
Last 90 Trading Days
|
|
|
1.63x - 2.02
|
x
|
|
40% - 46%
|
Last 12 Months
|
|
|
1.23x - 2.02
|
x
|
|
34% - 46%
|
Morgan Stanley noted that the exchange ratio pursuant to the
merger agreement was 2.16x and that based on the prices of
shares of Agere and LSI common stock on December 1, 2006,
the exchange ratio as of that date was 1.68x.
Comparable Company Analysis. Morgan Stanley
performed a comparable company analysis, which attempts to
provide an implied value of a company by comparing it to similar
companies. Morgan Stanley compared certain financial information
of Agere with publicly available consensus estimates for other
companies that shared similar business characteristics of Agere.
The companies used in this comparison included the following
storage, enterprise and networking, and wireless component
companies:
|
|
|
|
|
Atheros Communications, Inc.
|
|
|
|
Broadcom Corporation
|
|
|
|
Conexant Systems, Inc.
|
|
|
|
Emulex Corporation
|
|
|
|
Freescale Semiconductor, Inc.
|
|
|
|
Infineon Technologies AG
|
|
|
|
Marvell Technology Group Ltd.
|
|
|
|
PMC-Sierra, Inc.
|
|
|
|
QLogic Corporation
|
|
|
|
Qualcomm Incorporated
|
|
|
|
RF Micro Devices, Inc.
|
73
|
|
|
|
|
Skyworks Solutions, Inc.
|
|
|
|
STMicroelectronics N.V.
|
|
|
|
Texas Instruments Incorporated
|
For purposes of this analysis, Morgan Stanley analyzed the
following statistics of each of these companies for comparison
purposes:
|
|
|
|
|
the ratios of aggregate value to estimated sales for calendar
year 2006 and 2007 (in each case, based on publicly available
consensus equity research estimates).
|
|
|
|
the ratios of price to estimated earnings per share for calendar
year 2006 and 2007 (in each case, based on publicly available
consensus equity research estimates).
|
Based on the analysis of the relevant metrics for each of the
comparable companies, Morgan Stanley selected representative
ranges of financial multiples of the comparable companies and
applied these ranges of multiples to the relevant Agere
financial statistic. For purposes of estimated calendar year
2006 and 2007 sales and earnings per share Morgan Stanley
utilized publicly available equity research estimates available
as of December 1, 2006. Based on Ageres outstanding
shares and options as of September 30, 2006, Morgan Stanley
estimated the implied value per Agere share as of
December 1, 2006 as follows:
|
|
|
|
|
|
|
|
|
|
|
Comparable
|
|
|
|
|
Company
|
|
|
|
|
Representative
|
|
Implied Value
|
Calendar Year Financial Statistic
|
|
Multiple Range
|
|
per Share of Agere
|
|
Aggregate Value to Estimated 2006
Revenue
|
|
|
1.5x - 3.2x
|
|
|
$
|
13.91 - $28.42
|
|
Aggregate Value to Estimated 2007
Revenue
|
|
|
1.4x - 2.8x
|
|
|
$
|
13.85 - $26.60
|
|
Price to Estimated 2006 EPS
|
|
|
18.0x - 24.0x
|
|
|
$
|
14.75 - $19.67
|
|
Price to Estimated 2007 EPS
|
|
|
16.0x - 22.0x
|
|
|
$
|
17.84 - $24.52
|
|
Morgan Stanley noted that as of December 1, 2006 the
closing price per share of Agere common stock as of that date
was $17.79.
No company utilized in the comparable company analysis is
identical to Agere. In evaluating comparable companies, Morgan
Stanley made judgments and assumptions with regard to industry
performance, general business, economic, market and financial
conditions and other matters, many of which are beyond the
control of Agere, such as the impact of competition on the
businesses of Agere and the industry generally, industry growth
and the absence of any adverse material change in the financial
condition and prospects of Agere or the industry or in the
financial markets in general. Mathematical analysis (such as
determining the average or median) is not in itself a meaningful
method of using comparable company data.
Discounted Equity Value Analysis. Morgan
Stanley performed a discounted equity value analysis, which is
designed to provide insight into the future value of a
companys common equity as a function of the companys
future earnings and its current forward price to earnings. The
resulting value is subsequently discounted to arrive at a
present value for such companys stock price. In connection
with this analysis, Morgan Stanley calculated a range of present
equity values per share of Ageres common stock on a
standalone basis. To calculate the discounted equity value,
Morgan Stanley utilized calendar year 2008 forecasts that were
extrapolated from equity research estimates using a range of
revenue growth assumptions from 10.0% 14.0% and
operating margin assumptions of 12.0% 16.0%. Morgan
Stanley applied a range of price to earnings multiples to these
estimates and applied a discount rate of 11%.
74
The following table summarizes Morgan Stanleys analysis:
|
|
|
|
|
|
|
|
|
|
|
Comparable
|
|
|
|
|
Company
|
|
|
|
|
Representative
|
|
Implied Value
|
Calendar Year 2008 Assumed Revenue Growth/Operating Margin
|
|
Multiple Range
|
|
per Share of Agere
|
|
10.0% Revenue Growth/12.0%
Operating Margin
|
|
|
15.0x - 18.0x
|
|
|
|
$14.72 - $17.66
|
|
12.0% Revenue Growth/14.1%
Operating Margin
|
|
|
17.0x - 20.0x
|
|
|
|
$19.95 - $23.47
|
|
14.0% Revenue Growth/16.0%
Operating Margin
|
|
|
20.0x - 23.0x
|
|
|
|
$27.11 - $31.18
|
|
Morgan Stanley noted that as of December 1, 2006 the
closing price per share of Agere common stock as of that date
was $17.79.
Securities Research Analysts Price
Targets. Morgan Stanley reviewed and analyzed
future public market trading price targets for Agere common
stock prepared and published by equity research analysts. These
targets reflect each analysts estimate of the future
public market trading price of Agere common stock. The range of
undiscounted analyst price targets for Agere was $13.00 to
$24.00.
Morgan Stanley noted that as of December 1, 2006 the
closing price per share of Agere common stock as of that date
was $17.79.
The public market trading price targets published by the
securities research analysts do not necessarily reflect current
market trading prices for Agere common stock and these estimates
are subject to uncertainties, including the future financial
performance of Agere and future financial market conditions.
Analysis of Precedent Transactions. Morgan
Stanley also performed a precedent transaction analysis, which
is designed to imply a value of a company based on publicly
available financial terms and premiums of selected transactions
that share some characteristics with the merger. In connection
with its analysis, Morgan Stanley compared publicly available
statistics for 7 selected merger transactions in the technology
sector between January 1, 2003 and December 1, 2006 in
which the target company was publicly traded, transaction values
were greater than $500 million and the target
shareholders implied pro forma fully diluted ownership was
greater than 30%. The following is a list of these transactions:
Selected
Technology Merger Transactions (Target/Acquiror)
|
|
|
|
|
ChipPAC, Inc./ST Assembly Test Services Ltd.
|
|
|
|
GlobespanVirata, Inc./Conexant Systems, Inc.
|
|
|
|
Integrated Circuit Systems, Inc./Integrated Device Technology,
Inc.
|
|
|
|
Lucent Technologies Inc./Alcatel
|
|
|
|
McDATA Corporation/Brocade Communications Systems, Inc.
|
|
|
|
Nextel Communications, Inc./Sprint Corporation
|
|
|
|
VERITAS Software Corporation/Symantec Corporation
|
For each transaction noted above Morgan Stanley noted the
provisions for corporate governance such as who would be the
chief executive officer, chairman and members of the board of
directors of the combined company, as provided for in the
transactions definitive documentation. Morgan Stanley also
noted the implied exchange ratio premium to the 30 trading day
average exchange ratio for the constituent companies, where
available.
Morgan Stanley noted that certain of the transactions noted
above could be characterized as mergers of equals in
which the transactions definitive documentation provided
for the corporate governance profile of the combined company to
generally be filled in a balanced manner from both the acquiror
and the acquired company, or shared upside mergers
in which the transactions definitive documentation
provided for the corporate governance profile of the combined
company to generally be filled in a less balanced manner. For
each category of merger of equals and shared
upside transactions, Morgan Stanley selected a
representative range of implied exchange ratio premiums to the
30 trading day average exchange ratio for such groups and
compared such representative ranges to
75
the average exchange ratio of Agere and LSI common stock over
the 30 trading day period ended December 1, 2006. The
following table summarizes Morgan Stanleys analysis:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Reference Range of
|
|
|
|
|
|
|
30 Day Average Exchange
|
|
Implied
|
|
Implied Agere
|
Merger Transactions
|
|
Ratio Premiums
|
|
Exchange Ratios
|
|
Ownership
|
|
Merger of Equals
Transactions
|
|
|
0% - 20%
|
|
|
|
1.74x - 2.09x
|
|
|
|
42% - 47%
|
|
Shared Upside
Transactions
|
|
|
10% - 30%
|
|
|
|
1.92x - 2.26x
|
|
|
|
45% - 49%
|
|
Morgan Stanley noted that the exchange ratio pursuant to the
merger agreement was 2.16x and that based on the prices of
shares of Agere and LSI common stock on December 1, 2006,
the exchange ratio as of that date was 1.68x.
Morgan Stanley also compared publicly available statistics for
21 selected transactions in the semiconductor and hardware
sectors between January 1, 2001 and December 1, 2006
in which the target company was publicly traded and transaction
values were greater than $500 million. The following is a
list of these transactions:
Selected
Semiconductor/Hardware Transactions (Target/Acquiror)
|
|
|
|
|
Advanced Digital Information Corporation/Quantum Corporation
|
|
|
|
Artisan Components, Inc./ARM Holdings PLC
|
|
|
|
ATI Technologies Inc./Advanced Micro Devices, Inc.
|
|
|
|
C-Cube Microsystems Inc./LSI Logic Corporation
|
|
|
|
ChipPAC, Inc./ST Assembly Test Services Ltd.
|
|
|
|
Dallas Semiconductor Corporation/Maxim Integrated Products, Inc.
|
|
|
|
Elantec Semiconductor, Inc./Intersil Corporation
|
|
|
|
Freescale Semiconductor, Inc./Consortium
|
|
|
|
General Semiconductor, Inc./Vishay Intertechnology, Inc.
|
|
|
|
GlobespanVirata, Inc./Conexant Systems, Inc.
|
|
|
|
Integrated Circuit Systems, Inc./Integrated Device Technology,
Inc.
|
|
|
|
Lexar Media, Inc./Micron Technology, Inc.
|
|
|
|
Maxtor Corporation/Seagate Technology
|
|
|
|
McDATA Corporation/Brocade Communications Systems, Inc.
|
|
|
|
msystems Ltd./SanDisk Corporation
|
|
|
|
Mykrolis Corporation/Entegris, Inc.
|
|
|
|
NPTest Holding Corp./Credence Systems Corporation
|
|
|
|
Sawtek Inc./TriQuint Semiconductor, Inc.
|
|
|
|
Storage Technology Corporation/Sun Microsystems, Inc.
|
|
|
|
Symbol Technologies, Inc./Motorola, Inc.
|
|
|
|
Xicor, Inc./Intersil Corporation
|
For each transaction noted above Morgan Stanley noted the
following financial ratios where available: (1) implied
premium to acquired companies stock price one trading day
prior to announcement; (2) implied premium to acquired
companies 30 trading day average stock price prior to
announcement; (3) implied exchange ratio premium to 30
trading day average exchange ratio of the constituent
companies stocks; (4) implied exchange ratio premium
to 60 trading day average exchange ratio of the constituent
companies stocks; (5) aggregate value of the
transaction to next twelve months estimated revenues; and
(6) price of the acquired companys stock to next
76
twelve months estimated earnings per share. Morgan Stanley noted
that based on the exchange ratio pursuant to the merger
agreement and the prices of shares of Agere and LSI common stock
for the period ending December 1, 2006, each of the
aforementioned metrics for the merger was within the range of
such corresponding metrics, where available, noted in the group
of transactions above.
Morgan Stanley noted that the exchange ratio pursuant to the
merger agreement was 2.16x and that based on the prices of
shares of Agere and LSI common stock on December 1, 2006,
the exchange ratio as of that date was 1.68x.
No company or transaction utilized in the precedent transaction
analysis is identical to LSI or Agere or the merger. In
evaluating the precedent transactions, Morgan Stanley made
judgments and assumptions with regard to general business,
market and financial conditions and other matters, which are
beyond the control of LSI and Agere, such as the impact of
competition on the business of LSI, Agere or the industry
generally, industry growth and the absence of any adverse
material change in the financial condition of LSI, Agere or the
industry or in the financial markets in general, which could
affect the public trading value of the companies and the
aggregate value of the transactions to which they are being
compared.
Relative Contribution Analysis. Morgan Stanley
compared Agere and LSI stockholders respective percentage
ownership of the combined company to Ageres and LSIs
respective percentage contribution (and the implied ownership
and the implied exchange ratio based on such contribution) to
the combined company using estimated calendar year 2006, 2007
and 2008 revenue, operating income and net income based on
publicly available equity research analysts estimates.
Morgan Stanley compared the revenue, operating income and net
income of Agere and LSI (i) excluding the impact of any
expected synergies resulting from their merger and excluding the
unfunded amount of Ageres pension and postretirement plans
as of September 30, 2006; (ii) allocating
$125 million of assumed synergies to Ageres operating
income and net income contribution and excluding the unfunded
amount of Ageres pension and postretirement plans as of
September 30, 2006; and (iii) excluding the impact of
any expected synergies resulting from their merger and
allocating the unfunded status of Ageres pension and
postretirement plans as of September 30, 2006 to
Ageres net debt contribution. Based on LSIs common
stock price per share of $10.56 and Ageres common stock
price per share of $17.79 as of December 1, 2006,
Morgan Stanley calculated an implied exchange ratio for
Ageres shareholders.
The following table summarizes Morgan Stanleys analysis:
|
|
|
|
|
|
|
Range of Implied
|
|
|
|
Exchange Ratios
|
|
|
Revenue
|
|
|
|
|
Calendar Year 2006-2008 (Without
Synergies, Excluding Pension and Postretirement Plans)
|
|
|
1.62x - 1.65x
|
|
Calendar Year 2006-2008 (With
Synergies, Excluding Pension and Postretirement Plans)
|
|
|
1.62x - 1.65x
|
|
Calendar Year 2006-2008 (Without
Synergies, Including Pension and Postretirement Plans)
|
|
|
1.51x - 1.53x
|
|
Operating Income
|
|
|
|
|
Calendar Year 2006-2008 (Without
Synergies, Excluding Pension and Postretirement Plans)
|
|
|
1.36x - 1.61x
|
|
Calendar Year 2006-2008 (With
Synergies, Excluding Pension and Postretirement Plans)
|
|
|
2.23x - 2.30x
|
|
Calendar Year 2006-2008 (Without
Synergies, Including Pension and Postretirement Plans)
|
|
|
1.25x - 1.49x
|
|
Net Income
|
|
|
|
|
Calendar Year 2006-2008 (Without
Synergies, Excluding Pension and Postretirement Plans)
|
|
|
1.43x - 1.80x
|
|
Calendar Year 2006-2008 (With
Synergies, Excluding Pension and Postretirement Plans)
|
|
|
2.44x - 2.61x
|
|
Calendar Year 2006-2008 (Without
Synergies, Including Pension and Postretirement Plans)
|
|
|
1.43x - 1.80x
|
|
Morgan Stanley noted that the exchange ratio pursuant to the
merger agreement was 2.16x and that based on the prices of
shares of Agere and LSI common stock on December 1, 2006,
the exchange ratio as of that date was 1.68x.
Relative Securities Research Analysts Price
Targets. Morgan Stanley reviewed and analyzed the
exchange ratio implied by the range of future public market
trading price targets for Agere common stock divided by the
range of future public market trading price targets for LSI
common stock, in each case prepared and published by equity
research analysts. The range of exchange ratios implied by such
undiscounted analyst price targets for Agere and LSI was 1.21x
to 2.29x. Morgan Stanley noted that the exchange ratio pursuant
to the merger agreement was 2.16x
77
and that based on the prices of shares of Agere and LSI common
stock on December 1, 2006, the exchange ratio as of that
date was 1.68x.
LSI
Trading Range Analysis. Morgan Stanley
performed a trading range analysis to provide background and
perspective with respect to the historical share prices of LSI
common stock. Morgan Stanley reviewed the range of closing
prices of LSI common stock for various periods ended on
December 1, 2006. Morgan Stanley observed the following:
|
|
|
|
|
|
|
Range of
|
Period Ended December 1, 2006
|
|
Closing Prices
|
|
Last 30 Trading Days
|
|
$
|
8.27 - $10.94
|
|
Last 60 Trading Days
|
|
$
|
8.03 - $10.94
|
|
Last 90 Trading Days
|
|
$
|
7.46 - $10.94
|
|
Last 12 Months
|
|
$
|
7.46 - $11.66
|
|
Morgan Stanley noted that as of December 1, 2006, the
closing price of LSI common stock was $10.56 per share.
Comparable Company Analysis. Morgan Stanley
performed a comparable company analysis, which attempts to
provide an implied value of a company by comparing it to similar
companies. Morgan Stanley compared certain financial information
of LSI with publicly available consensus estimates for other
companies that shared similar business characteristics of LSI.
The companies used in this comparison included the following
storage, enterprise and networking and wireless component
companies:
|
|
|
|
|
Atheros Communications, Inc.
|
|
|
|
Broadcom Corporation
|
|
|
|
Conexant Systems, Inc.
|
|
|
|
Emulex Corporation
|
|
|
|
Freescale Semiconductor, Inc.
|
|
|
|
Infineon Technologies AG
|
|
|
|
Marvell Technology Group Ltd.
|
|
|
|
PMC-Sierra, Inc.
|
|
|
|
QLogic Corporation
|
|
|
|
Qualcomm Incorporated
|
|
|
|
RF Micro Devices, Inc.
|
|
|
|
Skyworks Solutions, Inc.
|
|
|
|
STMicroelectronics N.V.
|
|
|
|
Texas Instruments Incorporated
|
For purposes of this analysis, Morgan Stanley analyzed the
following statistics of each of these companies for comparison
purposes:
|
|
|
|
|
the ratios of aggregate value to estimated sales for calendar
year 2006 and 2007 (in each case, based on publicly available
consensus equity research estimates).
|
|
|
|
the ratios of price to estimated earnings per share for calendar
year 2006 and 2007 (in each case, based on publicly available
consensus equity research estimates).
|
78
Based on the analysis of the relevant metrics for each of the
comparable companies, Morgan Stanley selected representative
ranges of financial multiples of the comparable companies and
applied these ranges of multiples to the relevant LSI financial
statistic. For purposes of estimated calendar year 2006 and 2007
revenues and earnings per share Morgan Stanley utilized publicly
available equity research estimates as of December 1, 2006.
Based on LSIs outstanding shares and options as of
September 30, 2006, Morgan Stanley estimated the implied
value per LSI share as of December 1, 2006 as follows:
|
|
|
|
|
|
|
|
|
|
|
Comparable Company
|
|
Implied Value
|
Calendar Year Financial Statistic
|
|
Representative Multiple Range
|
|
per Share of LSI
|
|
Aggregate Value to Estimated 2006
Revenue
|
|
|
1.5x - 3.2x
|
|
|
$
|
8.82 - $15.49
|
|
Aggregate Value to Estimated 2007
Revenue
|
|
|
1.4x - 2.8x
|
|
|
$
|
8.83 - $14.67
|
|
Price to Estimated 2006 EPS
|
|
|
18.0x - 24.0x
|
|
|
$
|
10.28 - $13.71
|
|
Price to Estimated 2007 EPS
|
|
|
16.0x - 22.0x
|
|
|
$
|
10.39 - $14.29
|
|
Morgan Stanley noted that as of December 1, 2006, the
closing price of LSI common stock was $10.56 per share.
No company utilized in the comparable company analysis is
identical to LSI. In evaluating the comparable companies, Morgan
Stanley made judgments and assumptions with regard to industry
performance, general business, economic, market and financial
conditions and other matters, many of which are beyond the
control of LSI, such as the impact of competition on the
businesses of LSI and the industry generally, industry growth
and the absence of any adverse material change in the financial
condition and prospects of LSI or the industry or in the
financial markets in general. Mathematical analysis (such as
determining the average or median) is not in itself a meaningful
method of using comparable company data.
Discounted Equity Value Analysis. Morgan
Stanley performed a discounted equity value analysis, which is
designed to provide insight into the future value of a
companys common equity as a function of the companys
future earnings and its current forward price to earnings ratio.
The resulting value is subsequently discounted to arrive at a
present value for such companys stock price. In connection
with this analysis, Morgan Stanley calculated a range of present
equity values per share of LSIs common stock on a
standalone basis. To calculate the discounted equity value,
Morgan Stanley utilized calendar year 2008 forecasts that were
extrapolated from equity research estimates using a range of
revenue growth assumptions from 7.5% 12.5% and
operating margin assumptions of 12.0% 16.0%. Morgan
Stanley applied a range of price to earnings multiples to these
estimates and applied a discount rate of 12%.
The following table summarizes Morgan Stanleys analysis:
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Comparable
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Company
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Representative
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Implied Value
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Calendar Year 2008 Assumed Revenue Growth/Operating Margin
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Multiple Range
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per Share of LSI
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7.5% Revenue Growth/12.0%
Operating Margin
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15.0x - 18.0x
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$
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7.71 - $ 9.25
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10.0% Revenue Growth/14.5%
Operating Margin
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17.0x - 20.0x
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$
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10.81 - $12.72
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12.5% Revenue Growth/16.0%
Operating Margin
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20.0x - 23.0x
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$
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14.34 - $16.49
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Morgan Stanley noted that as of December 1, 2006, the
closing price of LSI common stock was $10.56 per share.
Securities Research Analysts Price
Targets. Morgan Stanley reviewed and analyzed
future public market trading price targets for LSI common stock
prepared and published by equity research analysts. These
targets reflect each analysts estimate of the future
public market trading price of LSI common stock. The range of
undiscounted analyst price targets for LSI was $7.00 to $15.00.
Morgan Stanley noted that as of December 1, 2006, the
closing price of LSI common stock was $10.56 per share.
The public market trading price targets published by the
securities research analysts do not necessarily reflect current
market trading prices for LSI common stock and these estimates
are subject to uncertainties, including the future financial
performance of LSI and future financial market conditions.
Pro Forma Merger Analysis. Morgan Stanley
analyzed the potential pro forma impact of the transaction on
LSIs earnings per share for calendar years 2007 and 2008,
excluding the impact of one-time and non-cash
acquisition-related expenses, except for the non-cash impact
related to the acquisition-related write-off of deferred
79
revenue as estimated by LSI management. Morgan Stanley
calculated such pro forma earnings per share on the basis of an
assumed closing date for the merger of March 31, 2007, the
transaction exchange ratio provided for by the merger agreement,
publicly available equity research estimates of earnings per
share for LSI and Agere as of December 1, 2006 and
synergies resulting from the merger estimated by LSI management.
Morgan Stanley noted that the transaction would be dilutive to
LSIs earnings per share for calendar year 2007 and
accretive for calendar year 2008.
In connection with the review of the merger by the LSI board of
directors, Morgan Stanley performed a variety of financial and
comparative analyses for purposes of rendering its opinion. The
preparation of a financial opinion is a complex process and is
not necessarily susceptible to a partial analysis or summary
description. In arriving at its opinion, Morgan Stanley
considered the results of all of its analyses as a whole and did
not attribute any particular weight to any analysis or factor it
considered. Morgan Stanley believes that selecting any portion
of its analyses, without considering all analyses as a whole,
would create an incomplete view of the process underlying its
analyses and opinion. In addition, Morgan Stanley may have given
various analyses and factors more or less weight than other
analyses and factors, and may have deemed various assumptions
more or less probable than other assumptions. As a result, the
ranges of valuations resulting from any particular analysis
described above should not be taken to be Morgan Stanleys
view of the actual value of Agere or LSI or their respective
common stock. In performing its analyses, Morgan Stanley made
numerous assumptions with respect to industry performance,
general business and economic conditions and other matters. Many
of these assumptions are beyond the control of Agere or LSI. Any
estimates contained in Morgan Stanleys analyses are not
necessarily indicative of future results or actual values, which
may be significantly more or less favorable than those suggested
by such estimates.
Morgan Stanley conducted the analyses described above solely as
part of its analysis of the fairness of the exchange ratio
pursuant to the merger agreement from a financial point of view
to LSI and in connection with the delivery of its opinion dated
December 3, 2006 to the LSI board of directors. These
analyses do not purport to be appraisals or to reflect the
prices at which shares of common stock of Agere or LSI might
actually trade. The exchange ratio was determined by LSI and
Agere through arms length negotiations between LSI and
Agere and was approved by the LSI board of directors. Morgan
Stanley provided advice to LSI during these negotiations. Morgan
Stanley did not, however, recommend any specific merger
consideration to LSI or that any specific merger consideration
constituted the only appropriate merger consideration for the
merger.
In addition, Morgan Stanleys opinion and its presentation
to the LSI board of directors was one of many factors taken into
consideration by the LSI board of directors in deciding to
approve, adopt and authorize the merger agreement. Consequently,
the analyses as described above should not be viewed as
determinative of the opinion of the LSI board of directors with
respect to the exchange ratio or of whether the LSI board of
directors would have been willing to agree to a different
exchange ratio. The foregoing summary describes the material
analyses performed by Morgan Stanley but does not purport to be
a complete description of the analyses performed by Morgan
Stanley.
The LSI board of directors retained Morgan Stanley based upon
Morgan Stanleys qualifications, experience and expertise.
Morgan Stanley is an internationally recognized investment
banking and advisory firm. Morgan Stanley, as part of its
investment banking and financial advisory business, is
continuously engaged in the valuation of businesses and
securities in connection with mergers and acquisitions,
negotiated underwritings, competitive biddings, secondary
distributions of listed and unlisted securities, private
placements and valuations for corporate, estate and other
purposes. In the past, Morgan Stanley and its affiliates have
provided financial advisory and financing services for LSI and
LSIs affiliates and received fees for such services. In
the ordinary course of Morgan Stanleys trading and
brokerage activities, Morgan Stanley or its affiliates may at
any time hold long or short positions, and may actively trade or
otherwise effect transactions, for its own account or for the
account of customers in the equity and other securities of
Agere, LSI, LSIs affiliates or any other parties,
commodities or currencies involved in the merger.
Under the terms of its engagement letter, Morgan Stanley
provided LSI financial advisory services and a financial opinion
in connection with the merger. Pursuant to the terms of this
engagement letter, LSI has agreed to pay Morgan Stanley a
customary fee, a substantial portion of which is contingent upon
closing of the merger. LSI has also agreed to reimburse Morgan
Stanley for its fees and expenses incurred in performing its
services. In
80
addition, LSI has agreed to indemnify Morgan Stanley and any of
its affiliates, their respective directors, officers, agents and
employees and each person, if any, controlling Morgan Stanley or
any of its affiliates against certain liabilities and expenses,
including certain liabilities under the federal securities laws
relating to or arising out of its engagement and any related
transactions.
Consideration
of the Merger by the Agere Board of Directors
Recommendation
of the Agere Board of Directors
At a meeting held on December 3, 2006, the Agere board of
directors by unanimous vote of the directors present:
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determined that the merger agreement and the transactions
contemplated by the merger agreement are advisable and in the
best interests of the Agere stockholders and approved and
adopted the merger agreement and the transactions contemplated
thereby; and
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determined to recommend that the Agere stockholders adopt the
merger agreement.
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The Agere board of directors recommends that the Agere
stockholders vote FOR the adoption of the merger
agreement at the Agere annual meeting.
In reaching this decision, the Agere board of directors
consulted with Ageres management and its financial and
legal advisors and considered a variety of factors, including
the material factors described below. In light of the number and
wide variety of factors considered in connection with its
evaluation of the transaction, the Agere board of directors did
not consider it practicable to, and did not attempt to, quantify
or otherwise assign relative weights to the specific factors
that it considered in reaching its determination. The Agere
board of directors viewed its position as being based on all of
the information available and the factors presented to and
considered by it. In addition, individual directors may have
given different weights to different factors.
Strategic Considerations. The Agere board of
directors considered factors pertaining to the strategic
rationale for the merger as generally supporting its decision to
enter into the merger agreement, including the following:
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its expectation that the merger would result in a larger, more
competitive organization, and that the opportunities for
strategic investment and customer expansion following the merger
would be significantly greater for the combined company than
what Agere could achieve as an independent company;
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its expectation that the complementary products, cultures and
capabilities of Agere and LSI would enhance the range of the
products and solutions currently offered to Agere customers, and
would allow the combined company to pursue new growth
opportunities;
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its expectation that the size and scale of the combined company,
with an enhanced innovation pipeline and a substantial patent
portfolio consisting of more than 10,000 issued and pending
U.S. patents, will have a strong foundation to pursue new
growth opportunities; and
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the strategic benefits of the merger, as described in the
section entitled Reasons for the Merger beginning on
page 68 of this joint proxy statement/prospectus.
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Equity Participation in Combined Company. The
Agere board of directors considered as generally supporting its
decision to enter into the merger agreement the opportunity for
Agere stockholders to participate in the potential growth of the
combined company as compared to the alternative of Agere
continuing as an independent company under its current business
plan in light of the perceived strategic benefits of the
proposed transaction, as well as a perceived reduction in risk
as a result of being stockholders in a larger, more diversified
company.
Financial Considerations. The Agere board of
directors considered the financial terms of the transaction,
including the fixed exchange ratio of 2.16 shares of LSI
common stock for each share of Agere common stock, as
81
well as other financial factors pertaining to the merger as
generally supporting its decision to enter into the merger
agreement, including the following:
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the fact that the implied value of the merger consideration,
based on the closing price of LSI common stock on
December 1, 2006 (the last trading day prior to
announcement of the merger) represented a premium of 28.2% to
the closing price of Agere common stock on such date, a 31.3%
premium to the
30-day
average closing price of Agere common stock and a substantial
premium over other recent historical periods;
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the significant synergies that could result from the
transaction, including substantial cost savings for the combined
company beginning in 2007, with annual cost savings for the
combined company of approximately $125 million in 2008 from
increased efficiencies in manufacturing and operating expenses;
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the expectation that Agere stockholders, immediately after
closing, will hold approximately 48% of the shares of common
stock of the combined company on a fully diluted basis,
excluding shares issuable on conversion of Ageres
outstanding convertible notes, and will have the opportunity to
share in the future growth and expected synergies of the
combined company while retaining the flexibility of selling all
or a portion of those shares.
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Opinion of Goldman, Sachs & Co. The
Agere board of directors considered Goldman Sachs oral
opinion, subsequently confirmed by delivery of its written
opinion, dated December 3, 2006, to Ageres board of
directors that, as of the date of its opinion and based upon and
subject to the factors and assumptions set forth in the opinion,
the exchange ratio of 2.16 shares of LSI common stock to be
received for each share of Agere common stock pursuant to the
merger agreement was fair from a financial point of view to the
holders of shares of Agere common stock.
Terms of Merger Agreement. The Agere board of
directors considered as generally supporting its decision to
enter into the merger agreement the terms of such agreement,
including the following:
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the limited ability of LSI to terminate the merger agreement,
and the fees payable by LSI with respect to certain events of
termination, including the payment of a $120.0 million
termination fee to Agere in certain circumstances where the
merger agreement is terminated, although the Agere board of
directors understood that such limitations and fees would also
apply to Agere;
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the fact that while the merger agreement contains a covenant
prohibiting Agere from soliciting third party acquisition
proposals, it allows a reasonable opportunity to respond to
unsolicited superior third party acquisition proposals if the
Agere board of directors determines that the failure to do so
would reasonably be expected to result in a breach of its
fiduciary duties, subject to the payment of a termination fee
upon termination upon certain circumstances;
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its view that the terms of the merger agreement, including the
termination fee, would not preclude a proposal for an
alternative acquisition transaction involving Agere;
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the fact that the merger agreement allows the Agere board of
directors to change or withdraw its recommendation of the merger
agreement if a superior proposal is received from a third party
or if the Agere board of directors determines that the failure
to change its recommendation would reasonably be expected to
result in a breach of its fiduciary duties under applicable law,
subject to the payment of a termination fee upon termination
under certain circumstances;
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the governance arrangements of the combined company under which
the board of directors of the combined company would be
comprised of nine directors, including three directors
designated by Agere;
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the fact that, for two years from the effective date of the
merger the surviving corporation will provide compensation and
benefits (other than equity-based benefits) that are
substantially equivalent, in the aggregate, to those provided
immediately prior to the date of the merger agreement, other
than as required by applicable law or certain
agreements; and
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while the executive offices of the combined company would be
located in Milpitas, California, the combined company would
maintain a significant presence in Allentown, Pennsylvania.
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82
Tax Treatment. The Agere board of directors
considered as generally supporting its decision to enter into
the merger agreement the fact that the merger was intended to
qualify as a reorganization for U.S. federal income tax
purposes and that, as a result, the exchange by Agere
stockholders of their shares of Agere common stock for shares of
LSI common stock in the merger generally would be tax-free to
Agere stockholders.
Risks. The Agere board of directors also
identified and considered a number of uncertainties, risks and
other potentially negative factors, including the following:
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the price of LSI common stock at the time of closing could be
lower than the price as of the time of signing, and accordingly,
the value of the consideration received by Agere stockholders in
the merger could be materially less than the value as of the
date of the merger agreement;
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the difficulties and challenges inherent in completing a merger
and integrating the management teams, strategies, cultures and
organizations of the companies;
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the risk that the expected synergies and other benefits of the
merger might not be fully achieved or may not be achieved within
the timeframes expected;
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the risks of the type and nature described above under
Risk Factors;
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the possibility that the merger ultimately may not be completed
as a result of material adverse developments or other
unsatisfied conditions;
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certain provisions of the merger agreement, although reciprocal,
may have the effect of discouraging proposals for alternative
acquisition transactions involving Agere, including:
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the restriction on Ageres ability to solicit proposals for
alternative transactions;
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the requirement that the Agere board of directors submit the
merger agreement to the Agere stockholders for approval and
adoption in certain circumstances, even if the Agere board of
directors withdraws its recommendation for the merger; and
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the requirement that Agere pay a termination fee of
$120.0 million to LSI in certain circumstances following
the termination of the merger agreement;
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certain of Ageres directors and officers may have
interests in the merger as individuals that are in addition to,
or that may be different from, the interests of the Agere
stockholders;
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the fees and expenses associated with completing the merger;
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the risk that certain members of Agere senior management or LSI
senior management might choose not to remain employed with the
combined company;
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the risk that either the Agere stockholders may fail to adopt
the merger agreement or the LSI stockholders may fail to approve
the issuance of shares of LSI common stock in the merger;
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the potential impact of the restrictions under the merger
agreement on Ageres ability to take certain actions during
the period prior to the closing of the merger (which may delay
or prevent Agere from undertaking business opportunities that
may arise pending completion of the merger); and
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the potential for diversion of management and employee attention
and for increased employee attrition during the period prior to
the closing of the merger agreement, and the potential effect of
these on Ageres business and relations with customers and
suppliers.
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The Agere board of directors weighed the potential benefits,
advantages and opportunities of a merger and the risks of not
pursuing a transaction with LSI against the risks and challenges
inherent in the proposed merger. The Agere board of directors
realized that there can be no assurance about future results,
including results expected or considered in the factors listed
above. However, the Agere board of directors concluded that the
potential benefits outweighed the risks of consummating the
merger with LSI.
83
This explanation of Ageres reasons for the proposed merger
and all other information presented in this section is
forward-looking in nature and, therefore, should be read in
light of the factors discussed under Cautionary Statement
Regarding Forward-Looking Information.
Opinion
of Agere Financial Advisor
On December 3, 2006, Goldman Sachs rendered its oral
opinion, subsequently confirmed by delivery of its written
opinion, dated December 3, 2006, to Ageres board of
directors that, as of the date of its opinion and based upon and
subject to the factors and assumptions set forth in the opinion,
the exchange ratio of 2.16 shares of LSI common stock to be
received for each share of Agere common stock pursuant to the
merger agreement was fair from a financial point of view to the
holders of shares of Agere common stock.
The full text of the written opinion of Goldman Sachs, dated
December 3, 2006, which sets forth the assumptions made,
procedures followed, matters considered and limitations on the
review undertaken in connection with the opinion, is attached as
Annex C to this joint proxy statement/prospectus. Goldman
Sachs provided its opinion for the information and assistance of
Ageres board of directors in connection with its
consideration of the merger. Goldman Sachs opinion is not
a recommendation as to how any holder of Agere common stock
should vote with respect to the merger.
In connection with rendering the opinion described above and
performing its related financial analyses, Goldman Sachs
reviewed, among other things:
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the merger agreement;
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annual reports to stockholders and Annual Reports on
Form 10-K
of Agere and LSI for the five fiscal years ended
September 30, 2006, in the case of Agere, and
December 31, 2005, in the case of LSI;
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certain interim reports to stockholders and Quarterly Reports on
Form 10-Q
of Agere and LSI;
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certain other communications from Agere and LSI to their
respective stockholders;
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certain research analyst estimates of the future financial
performance of Agere and LSI;
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certain internal financial analyses and forecasts for LSI
prepared by its management, as reviewed and approved for use in
connection with the opinion by Ageres management;
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certain internal financial analyses and forecasts for Agere
prepared by its management; and
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certain cost savings and operating synergies projected by the
managements of Agere and LSI to result from the merger, which
are referred to in this discussion as the Synergies.
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Goldman Sachs also held discussions with members of the senior
management of Agere and LSI regarding their assessment of the
strategic rationale for, and the potential benefits of, the
merger and the past and current business operations, financial
condition and future prospects of Agere and LSI.
In addition, Goldman Sachs:
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reviewed the reported price and trading activity for the shares
of Agere common stock and the shares of LSI common stock,
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compared certain financial and stock market information for
Agere and LSI with similar information for certain other
companies the securities of which are publicly traded;
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reviewed the financial terms of certain recent business
combinations in the semiconductor industry specifically and in
other industries generally; and
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performed such other studies and analyses, and considered such
other factors, as Goldman Sachs considered appropriate.
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Goldman Sachs relied upon the accuracy and completeness of all
of the financial, accounting, legal, tax and other information
discussed with or reviewed by it and assumed the accuracy and
completeness of this information for purposes of rendering its
opinion. In addition, Goldman Sachs did not make an independent
evaluation or
84
appraisal of the assets and liabilities (including any
contingent, derivative or off-balance-sheet assets and
liabilities) of Agere, LSI or any of their respective
subsidiaries and Goldman Sachs was not furnished with any such
evaluation or appraisal. Goldman Sachs also assumed that all
governmental, regulatory or other consents and approvals
necessary for the consummation of the merger would be obtained
without any adverse effect on Agere or LSI or on the expected
benefits of the merger in any way meaningful to its analysis.
Goldman Sachs opinion does not address the underlying
business decision of Agere to engage in the merger, nor did
Goldman Sachs express any opinion as to the prices at which
shares of LSI common stock will trade at any time. Goldman
Sachs opinion is necessarily based on economic, monetary,
market and other conditions as in effect on, and the information
made available to it as of, the date of its opinion.
The following is a summary of the material financial analyses
presented by Goldman Sachs to Ageres board of directors in
connection with rendering the opinion described above. The
following summary, however, does not purport to be a complete
description of the financial analyses performed by Goldman Sachs
and is qualified by reference to the written opinion of Goldman
Sachs attached as Annex C to this joint proxy
statement/prospectus. The order of analyses described does not
represent the relative importance or weight given to those
analyses by Goldman Sachs. Some of the summaries of the
financial analyses include information presented in tabular
format. The tables must be read together with the full text of
each summary and are alone not a complete description of Goldman
Sachs financial analyses. Except as otherwise noted, the
following quantitative information, to the extent that it is
based on market data, is based on market data as it existed on
or before December 1, 2006 and is not necessarily
indicative of current market conditions.
Historical
Stock Price Analysis
Goldman Sachs reviewed the reported price and trading activity
for Agere common stock for the one-year period ended
December 1, 2006. Goldman Sachs noted that based on the
closing price of LSI common stock of $10.56 per share on
December 1, 2006, which was the last trading day prior to
the date of the merger agreement, the implied value of the
exchange ratio of 2.16 shares of LSI common stock to be
received for each share of Agere common stock pursuant to the
merger agreement was $22.81 per share of Agere common
stock, which is referred to in this discussion as the offer
value. Goldman Sachs noted that the offer value represented:
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a 28.2% premium to the closing price of Agere common stock on
December 1, 2006;
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a 31.3% premium to the average closing price of Agere common
stock for the
30-day
period ended December 1, 2006;
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a 41.5% premium to the average closing price of Agere common
stock for the
90-day
period ended December 1, 2006; and
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a 54.4% premium to the average closing price of Agere common
stock for the one-year period ended December 1, 2006.
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Historical
Price to Earnings Ratio Analysis
Goldman Sachs reviewed the historical price to projected
earnings ratios for Agere and LSI for each day in the one-year
period ended December 1, 2006. The historical price to
projected earnings ratios were determined by dividing the
closing price per share of Agere common stock and LSI common
stock, respectively, by the daily median next-twelve-month
rolling earnings per share projections for Agere and LSI,
respectively, provided by the Institutional Brokerage Estimate
System, which is referred to in this discussion as
IBES, which is a data service that compiles
estimates issued by securities analysts. Goldman Sachs noted
that as of December 1, 2006, Ageres price to earnings
ratio was 18.2x and LSIs price to earnings ratio was 17.3x.
Implied
Historical Exchange Ratio Analysis
Goldman Sachs reviewed the implied historical exchange ratios
determined by dividing the closing price per share of Agere
common stock by the closing price per share of LSI common stock
over the
one-day,
five-day,
30-day,
90-day,
180-day and
one-year trading periods ended December 1, 2006, as well as
the implied premium of the exchange ratio of 2.16 shares of
LSI common stock to be received for each share of Agere common
stock
85
pursuant to the merger agreement to the average of implied
historical exchange ratios over those same trading periods. The
following table presents the results of these calculations:
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Implied Premium
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of Actual
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Exchange Ratio to
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Implied Historical
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Implied Historical
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Historical Period
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Exchange Ratio
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Exchange Ratio
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One-Day
Average
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1.68
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28.2%
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Five-Day
Average
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1.66
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30.4%
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30-Day
Average
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1.74
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24.0%
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90-Day
Average
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1.84
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17.1%
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180-Day
Average
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1.67
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29.3%
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One-Year Average
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1.61
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33.9%
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Implied
Securities Analyst Price Target Exchange Ratio
Analysis
Goldman Sachs reviewed the implied exchange ratios determined by
dividing the high, mean, median and low of certain securities
analysts target price for Agere common stock as of
December 1, 2006 by the high, mean, median and low,
respectively, of certain securities analysts target price
for LSI common stock as of December 1, 2006, as well as the
implied premium of the exchange ratio of 2.16 shares of LSI
common stock to be received for each share of Agere common stock
pursuant to the merger agreement to these implied exchange
ratios. The following table presents the results of these
calculations:
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Implied Premium of Actual
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Implied Securities
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Exchange Ratio to Implied
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Analyst Price
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Securities Analyst Price
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Target Exchange Ratio
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Target Exchange Ratio
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High
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1.60
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35.0%
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Mean
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1.51
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43.4%
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Median
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1.68
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28.4%
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Low
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1.30
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66.2%
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Implied
Equity Contribution Analysis
Goldman Sachs performed a contribution analysis in which it
analyzed and compared the relative implied contributions of
Agere and LSI to the combined company on a percentage basis
based on the:
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actual calendar year 2005 revenue and estimated calendar year
2006 and 2007 revenue;
|
|
|
|
actual calendar year 2005 earnings before interest expense and
taxes, or EBIT, and estimated calendar year 2006 and 2007 EBIT;
|
|
|
|
actual calendar year 2005 earnings before interest expense,
taxes, depreciation and amortization, or EBITDA, and estimated
calendar year 2006 and 2007 EBITDA; and
|
|
|
|
actual calendar year 2005 cash net income, which is defined as
GAAP net income adjusted for one-time, stock compensation,
goodwill and amortization expenses, and estimated calendar year
2006 and 2007 cash net income, of the combined company, as
adjusted for the net debt positions of Agere and LSI. For
purposes of these calculations, net debt was defined as total
indebtedness less cash, cash equivalents and short-term
investments. Ageres and LSIs relative implied
contributions to the combined company, as adjusted for net debt,
are referred to in this discussion as implied equity
contributions. The contribution analysis that Goldman Sachs
performed did not reflect any Synergies, purchase accounting
adjustments or merger-related costs resulting from the
consummation of the merger.
|
Goldman Sachs performed this contribution analysis employing
both:
|
|
|
|
|
median IBES estimates of Ageres and LSIs revenue,
EBIT, EBITDA and cash net income as of December 1, 2006,
which are collectively referred to in this discussion as the
Street Case; and
|
86
|
|
|
|
|
estimates of Ageres revenue, EBIT, EBITDA and cash net
income prepared by Ageres management, and estimates of
LSIs revenue, EBIT, EBITDA and cash net income prepared by
LSIs management, as reviewed and approved for use in
connection with Goldman Sachs opinion by Ageres
management, which are collectively referred to in this
discussion as the Management Case.
|
For purposes of these calculations, Goldman Sachs reviewed the
fully diluted equity market capitalization of Agere and LSI,
respectively, on December 1, 2006 and used net debt
information for Agere and LSI based on their latest publicly
available filings as of December 1, 2006. The results of
Goldman Sachs calculations are as follows:
Street
Case
|
|
|
|
|
|
|
Agere Implied
|
|
|
|
|
Equity Contribution
|
|
LSI Implied Equity
|
|
|
to Combined
|
|
Contribution to
|
|
|
Company
|
|
Combined Company
|
|
2005A Revenue
|
|
42.8%
|
|
57.2%
|
2006E Revenue
|
|
40.8%
|
|
59.2%
|
2007E Revenue
|
|
39.9%
|
|
60.1%
|
2005A EBIT
|
|
36.0%
|
|
64.0%
|
2006E EBIT
|
|
34.8%
|
|
65.2%
|
2007E EBIT
|
|
36.9%
|
|
63.1%
|
2005A EBITDA
|
|
47.4%
|
|
52.6%
|
2006E EBITDA
|
|
42.3%
|
|
57.7%
|
2007E EBITDA
|
|
40.0%
|
|
60.0%
|
2005A Cash Net Income
|
|
36.7%
|
|
63.3%
|
2006E Cash Net Income
|
|
37.3%
|
|
62.7%
|
2007E Cash Net Income
|
|
39.2%
|
|
60.8%
|
Management
Case
|
|
|
|
|
|
|
Agere Implied Equity
|
|
LSI Implied Equity
|
|
|
Contribution to Combined
|
|
Contribution to Combined
|
|
|
Company
|
|
Company
|
|
2005A Revenue
|
|
42.8%
|
|
57.2%
|
2006E Revenue
|
|
40.7%
|
|
59.3%
|
2007E Revenue
|
|
41.4%
|
|
58.6%
|
2005A EBIT
|
|
36.0%
|
|
64.0%
|
2006E EBIT
|
|
38.0%
|
|
62.0%
|
2007E EBIT
|
|
42.7%
|
|
57.3%
|
2005A EBITDA
|
|
47.4%
|
|
52.6%
|
2006E EBITDA
|
|
40.7%
|
|
59.3%
|
2007E EBITDA
|
|
45.4%
|
|
54.6%
|
2005A Cash Net Income
|
|
36.7%
|
|
63.3%
|
2006E Cash Net Income
|
|
40.6%
|
|
59.4%
|
2007E Cash Net Income
|
|
45.5%
|
|
54.5%
|
Based upon the exchange ratio of 2.16 shares of LSI common
stock to be received for each share of Agere common stock
pursuant to the merger agreement, Goldman Sachs calculated that
holders of Agere common stock and holders of LSI common stock
would hold 48.3% and 51.7%, respectively, of the combined
company on a fully diluted basis as of December 1, 2006,
based on the treasury stock method.
87
Sensitivity
Analysis with Respect to Implied Equity Contribution
Analysis
Goldman Sachs also performed a sensitivity analysis to analyze
the effect of increases or decreases in Ageres and
LSIs estimated calendar year 2007 revenue, EBIT, EBITDA
and cash net income on Ageres implied equity contributions
under both the Street Case and the Management Case.
With respect to the Street Case, Goldman Sachs sensitivity
analysis resulted in a range of implied equity contributions for
Agere of:
|
|
|
|
|
37.8% to 42.6% based on calendar 2007 revenue;
|
|
|
|
29.6% to 44.1% based on calendar 2007 EBIT;
|
|
|
|
36.6% to 43.4% based on calendar 2007 EBITDA; and
|
|
|
|
29.5% to 48.8% based on calendar 2007 cash net income.
|
With respect to the Management Case, Goldman Sachs
sensitivity analysis resulted in a range of implied equity
contributions for Agere of:
|
|
|
|
|
38.6% to 44.5% based on calendar 2007 revenue;
|
|
|
|
40.0% to 45.1% based on calendar 2007 EBIT;
|
|
|
|
43.3% to 47.3% based on calendar 2007 EBITDA; and
|
|
|
|
42.6% to 48.5% based on calendar 2007 cash net income.
|
Based upon the exchange ratio of 2.16 shares of LSI common
stock to be received for each share of Agere common stock
pursuant to the merger agreement, Goldman Sachs calculated that
holders of Agere common stock and holders of LSI common stock
would hold 48.3% and 51.7%, respectively, of the combined
company on a fully diluted basis as of December 1, 2006,
based on the treasury stock method.
Illustrative
Pro Forma Merger Analysis
Goldman Sachs analyzed the potential pro forma impact of the
merger on calendar year 2007 cash earnings per share, which is
defined as GAAP earnings per share adjusted for one-time, stock
compensation, goodwill and amortization expenses, from the point
of view of the holders of LSI common stock prior to the merger
based upon both the Street Case and the Management Case.
Based on the closing price per share of LSI common stock as of
December 1, 2006, the exchange ratio of 2.16 shares of
LSI common stock to be received for each share of Agere common
stock pursuant to the merger agreement, the number of shares and
options to purchase shares of LSI common stock outstanding as of
December 1, 2006 and the number of shares and options to
purchase shares of Agere common stock outstanding as of
December 1, 2006, this analysis indicated that under the
Street Case, the merger would be dilutive to LSIs calendar
year 2007 cash earnings per share, and that under the Management
Case, the merger would be slightly dilutive to LSIs
calendar year 2007 cash earnings per share, in each case,
without taking the Synergies into account. This analysis also
indicated that under both the Street Case and the Management
Case, the merger would be accretive to LSIs calendar year
2007 cash earnings per share if the Synergies were taken into
account.
Selected
Companies Analysis
Goldman Sachs reviewed and compared certain financial
information for Agere and LSI to corresponding financial
information, ratios and public market multiples for the
following publicly traded corporations in the semiconductor
industry:
|
|
|
|
|
Cypress Semiconductor Corporation
|
|
|
|
Freescale Semiconductor, Inc.
|
|
|
|
Infineon Technologies AG
|
88
|
|
|
|
|
Integrated Device Technology, Inc.
|
|
|
|
NEC Electronics Corp.
|
|
|
|
STMicroelectronics N.V.
|
|
|
|
Texas Instruments Incorporated
|
Although none of the selected companies is directly comparable
to Agere or LSI, the companies included were chosen because they
are publicly traded companies with operations that for purposes
of analysis may be considered similar to certain operations of
Agere and LSI.
Goldman Sachs also calculated and compared various financial
multiples and ratios based on historical financial data as of
December 1, 2006, information obtained from SEC filings and
estimates provided by IBES. The multiples and ratios of Agere,
LSI and each of the selected companies were based on estimates
provided by IBES and the most recent publicly available
information and were calculated using closing stock prices on
December 1, 2006. With respect to Agere, LSI and the
selected companies, Goldman Sachs calculated the multiple of
price to calendar year 2006 and 2007 IBES estimated earnings.
The following table presents the results of this analysis:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selected Companies
|
|
|
|
|
|
|
Range
|
|
Mean
|
|
Median
|
|
Agere
|
|
LSI
|
|
Price/2006 CYE Earnings
|
|
|
16.9x - 33.2x
|
|
|
|
21.6x
|
|
|
|
18.5x
|
|
|
|
23.2x
|
|
|
|
18.5x
|
|
Price/2007 CYE Earnings
|
|
|
13.7x - 28.1x
|
|
|
|
19.3x
|
|
|
|
17.4x
|
|
|
|
16.9x
|
|
|
|
16.8x
|
|
Goldman Sachs also calculated the ratio of price to calendar
year 2007 IBES estimated earnings as a multiple of IBES median
five-year earnings per share compound annual growth rate. The
following table presents the results of this analysis:
|
|
|
|
|
|
|
|
|
|
|
|
|
Selected Companies
|
|
|
|
|
|
|
Range
|
|
Agere
|
|
LSI
|
|
Price/2007 CYE Earnings
|
|
13.7x - 28.1x
|
|
|
16.9x
|
|
|
|
16.8x
|
|
Estimated Five-Year Earnings Per
Share Compound Annual Growth Rate
|
|
Negative 14.0% - 39.4%
|
|
|
10.0%
|
|
|
|
17.5%
|
|
Ratio of Calendar 2007 Price to
Earnings Ratio to
Five-Year EPS Compound Annual Growth Rate
|
|
0.3x - 3.5x
|
|
|
1.7x
|
|
|
|
1.0x
|
|
The preparation of a fairness opinion is a complex process and
is not necessarily susceptible to partial analysis or summary
description. Selecting portions of the analyses or of the
summary set forth above, without considering the analyses as a
whole, could create an incomplete view of the processes
underlying Goldman Sachs analyses and opinion. In arriving
at its fairness determination, Goldman Sachs considered the
results of all of its analyses and did not attribute any
particular weight to any factor or analysis considered by it.
Rather, Goldman Sachs made its determination as to fairness on
the basis of its experience and professional judgment after
considering the results of all of its analyses. No company or
transaction used in the above analyses as a comparison is
directly comparable to Agere, LSI or the merger.
Goldman Sachs prepared these analyses for purposes of Goldman
Sachs providing its opinion to Ageres board of directors
as to the fairness from a financial point of view to the holders
of shares of Agere common stock of the exchange ratio of
2.16 shares of LSI common stock to be received for each
share of Agere common stock pursuant to the merger agreement.
These analyses do not purport to be appraisals nor do they
necessarily reflect the prices at which businesses or securities
actually may be sold. Analyses based upon forecasts of future
results are not necessarily indicative of actual future results,
which may be significantly more or less favorable than suggested
by these analyses. Because these analyses are inherently subject
to uncertainty, being based upon numerous factors or events
beyond the control of the parties or their respective advisors,
none of Agere, LSI, Goldman Sachs or any other person assumes
responsibility if future results are materially different from
those forecast. As described above, Goldman Sachs opinion
to Ageres board of directors was one of many factors taken
into consideration by Ageres board of directors in making
its determination to approve the merger agreement.
89
The merger consideration was determined by Agere and LSI through
arms-length negotiations between Agere and LSI and was
approved by Ageres board of directors. Goldman Sachs
provided advice to Agere during these negotiations. Goldman
Sachs did not, however, recommend any specific amount of
consideration to Agere or its board of directors or that any
specific amount of consideration constituted the only
appropriate consideration for the merger.
Goldman, Sachs & Co. and its affiliates, as part of
their investment banking business, are continually engaged in
performing financial analyses with respect to businesses and
their securities in connection with mergers and acquisitions,
negotiated underwritings, competitive biddings, secondary
distributions of listed and unlisted securities, private
placements and other transactions as well as for estate,
corporate and other purposes. Goldman Sachs has acted as
financial advisor to Agere in connection with, and has
participated in certain of the negotiations leading to, the
merger. In addition, Goldman Sachs has provided certain
investment banking services to Agere from time to time,
including having acted as agent in connection with Ageres
reverse stock split in February 2005 and Ageres share
repurchase program in November and December of 2005. Goldman
Sachs and its affiliates also may provide investment banking
services to Agere and LSI in the future. In connection with the
above-described investment banking services Goldman Sachs has
received, and may receive, compensation.
Ageres board of directors selected Goldman Sachs as its
financial advisor because Goldman Sachs is an internationally
recognized investment banking firm that has substantial
experience in transactions similar to the merger. Pursuant to a
letter agreement, Agere engaged Goldman Sachs to act as its
financial advisor in connection with the potential sale of the
company. Pursuant to the terms of this engagement letter, Agere
has agreed to pay Goldman Sachs a fee of approximately
$28 million, substantially all of which is payable upon the
consummation of the merger. Agere has also agreed to reimburse
Goldman Sachs for its reasonable expenses, including
attorneys fees and disbursements, and to indemnify Goldman
Sachs and related persons against various liabilities, including
certain liabilities under the federal securities laws.
Interests
of the Directors and Executive Officers of Agere in the
Merger
In considering the recommendation of the Agere board of
directors to adopt the merger agreement, Agere stockholders
should be aware that some of the Agere directors and executive
officers have interests in the merger and have arrangements that
are different from, or in addition to, those of Agere
stockholders generally. These interests and arrangements may
create potential conflicts of interest. The Agere board of
directors was aware of these potential conflicts of interest and
considered them, among other matters, in reaching its decision
to approve the merger agreement and the transactions
contemplated by the merger agreement.
Stock
Options and Restricted Stock Units
Upon completion of the merger, each outstanding Agere option,
whether or not exercisable, will be assumed by LSI and converted
into an option to acquire the number of shares of LSI common
stock equal to 2.16 times the number of shares of Agere common
stock that were subject to the original Agere stock option at a
per share exercise price equal to the exercise price per share
of the original Agere stock option divided by 2.16. The exercise
price and number of shares will be rounded so as to comply with
incentive stock option requirements and the requirements of
Section 409A of the Code. The other terms and conditions of
each assumed Agere stock option will be the same as those in
effect immediately prior to the merger.
Upon completion of the merger, each Agere restricted stock unit
award will be assumed by LSI and converted into a restricted
stock unit award in respect of the number of whole shares of LSI
common stock equal to 2.16 times the number of shares of Agere
common stock subject to the Agere restricted stock unit award.
Each assumed restricted stock unit award will otherwise have the
same terms and conditions as were in effect immediately prior to
the merger, except that with respect to any restricted stock
unit which vests upon a specified date or dates if performance
based criteria are achieved, achievement of those criteria shall
be waived and the restricted stock unit will otherwise vest in
accordance with its terms and conditions over the applicable
period.
Pursuant to Ageres Non-Employee Director Stock Plan,
stockholder adoption of the merger agreement (or, if later, any
necessary governmental agency consent) will result in the
exercisability of certain stock options held by Ageres
directors that were not then otherwise exercisable. In addition,
unexercisable stock options granted under
90
the Agere 2001 Long Term Incentive Plan and held by executive
officers of Agere will become exercisable and restricted stock
units granted under the Agere 2001 Long Term Incentive Plan and
held by executive officers of Agere will be paid out if the
holder is terminated without Cause (as defined under
the Agere 2001 Long Term Incentive Plan and as described below,
in Severance Policy) or the holder
terminates employment for Good Reason (as defined under the
Agere 2001 Long Term Incentive Plan and as described below, in
Severance Policy) in the two years
following stockholder adoption of the merger agreement (or, if
later, any necessary governmental agency consent).
Also, two individuals who were executive officers of Agere
during a part of the last fiscal year are on approved leaves of
absences under Ageres severance policies. Unexercisable
stock options and restricted stock units held by such
individuals continue to vest during each such individuals
leave of absence and will become fully exercisable or be paid
out upon the expiration of such individuals leave of
absence, provided stockholder approval of the merger agreement
is obtained before such expiration. Assuming that each person
who has been an executive officer or Director of Agere at any
time since October 1, 2005 experiences a termination of
employment as described in this paragraph (if applicable)
immediately following completion of the merger, the aggregate
amount and value (based on an assumed Agere stock price of
$20 per share and an assumed termination date of
March 31, 2007 for current executive officers and an
assumed expiration date of the leave of absence for the
individuals on approved leaves of absence) of all such
unexercisable Agere stock options held by these individuals that
will become fully exercisable and the number of Agere restricted
stock units held by these individuals that would be paid out in
connection with the completion of the merger and such
termination of employment are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate
|
|
Shares
|
|
|
|
|
Shares
|
|
Spread for All
|
|
Underlying All
|
|
Aggregate Value
|
|
|
Underlying All
|
|
Unvested
|
|
Unvested
|
|
for All Unvested
|
|
|
Unvested Agere
|
|
Agere Stock
|
|
Restricted Stock
|
|
Restricted Stock
|
Executive Officer
|
|
Stock Options
|
|
Options ($)
|
|
Units
|
|
Units ($)
|
|
Mr. Clemmer
|
|
|
635,000
|
|
|
|
3,901,725
|
|
|
|
352,000
|
|
|
|
7,040,000
|
|
Mr. Dickson
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mr. Kelly
|
|
|
257,815
|
|
|
|
1,102,549
|
|
|
|
137,000
|
|
|
|
2,740,000
|
|
Mr. Regimbal
|
|
|
170,075
|
|
|
|
740,148
|
|
|
|
103,000
|
|
|
|
2,060,000
|
|
Mr. Samhouri
|
|
|
156,918
|
|
|
|
672,333
|
|
|
|
103,000
|
|
|
|
2,060,000
|
|
Mr. Stroh
|
|
|
194,501
|
|
|
|
939,714
|
|
|
|
128,000
|
|
|
|
2,560,000
|
|
Mr. Micallef
|
|
|
137,815
|
|
|
|
672,507
|
|
|
|
97,000
|
|
|
|
1,940,000
|
|
Ms. Rankin
|
|
|
162,253
|
|
|
|
642,517
|
|
|
|
103,000
|
|
|
|
2,060,000
|
|
Other individuals who were
executive officers
|
|
|
84,380
|
|
|
|
543,027
|
|
|
|
25,000
|
|
|
|
500,000
|
|
All Directors and executive
officers as a group (16 individuals)
|
|
|
1,878,757
|
|
|
|
9,314,219
|
|
|
|
1,048,000
|
|
|
|
20,960,000
|
|
Severance
Policy
Under Ageres Officer Severance Policy, if a participating
executive officers employment is terminated without cause
or, following stockholder approval of the merger agreement (or,
if later, any necessary governmental agency consent), if the
executive officer terminates employment within three months of
an event constituting Good Reason, the executive officer is
entitled to:
|
|
|
|
|
continuation of base salary, target bonus and health and welfare
benefits for two years;
|
|
|
|
continued participation in Ageres Employee Stock Purchase
Plan, 401(k) Plan and pension plans (or comparable LSI plans)
for two years;
|
|
|
|
continuation of vesting of existing equity awards for up to two
additional years;
|
|
|
|
credit for the continued salary, bonus and two-year period
towards calculation of benefits under Ageres qualified
pension plan and supplemental pension plan; and
|
91
|
|
|
|
|
a gross-up
payment to reimburse the executive officer for any taxes payable
under Section 4999 of the Internal Revenue Code, including
taxes payable on such reimbursement.
|
Cause is defined generally as (i) a violation of
Ageres code of conduct; (ii) conviction of (or a plea
of guilty or nolo contendere) of a felony or any crime of theft,
dishonesty or moral turpitude; or (iii) gross omission or
gross dereliction of any statutory or common law duty of loyalty
to Agere.
Good Reason is defined generally as (i) the assignment to
the executive officer of duties which represent a material
decrease in responsibility and which are materially inconsistent
with the executive officers position, any reduction in job
title, or a material negative change in the level of officer to
whom the executive officer reports; or (ii) a material
negative change in the executive officers terms and
conditions of employment, including a reduction of base salary
or a material decrease in short term target bonus opportunity.
Assuming that each of Messrs. Clemmer, Kelly, Regimbal,
Samhouri, Stroh and Micallef and Ms. Rankin experience a
termination without cause or for Good Reason on March 31,
2007, the value of the estimated payments and benefits under
these policies, other than accelerated exercisability or vesting
of equity awards, for each individual, including the
gross-up
payment, would be:
|
|
|
|
|
Name
|
|
Amount ($)
|
|
Mr. Clemmer
|
|
|
8,284,526
|
|
Mr. Kelly
|
|
|
3,136,863
|
|
Mr. Regimbal
|
|
|
2,217,844
|
|
Mr. Samhouri
|
|
|
2,296,108
|
|
Mr. Stroh
|
|
|
3,310,161
|
|
Mr. Micallef
|
|
|
2,151,007
|
|
Ms. Rankin
|
|
|
2,492,301
|
|
Other
Executive Benefit Plans
LSI has agreed to continue, for a period of at least two years
following the merger, the Agere Management Pension Plan and the
Agere Supplemental Pension Plan, which is an unfunded plan that
principally provides benefits based on compensation amounts that
exceed the amounts that can be considered under the Agere
Management Pension Plan under applicable federal law. In
addition, LSI has agreed to refrain from amending or terminating
these plans during this
two-year
period except for such amendments as may be necessary to avoid
the imposition of tax under Section 409A of the Code or as
may be required to maintain compliance with applicable law.
Furthermore, the merger will trigger an obligation to fund the
Agere Benefits Protection Trust in an amount sufficient to
satisfy all obligations and liabilities under the Agere
Supplemental Pension Plan.
Indemnification
of Directors and Officers; Directors and Officers
Insurance
The merger agreement provides that, for a period of six years
following the effective time of the merger, LSI will cause the
surviving corporations certificate of incorporation and
bylaws to include indemnification provisions at least as
favorable as the indemnification provisions of the
organizational documents of Agere and in any indemnification
agreements of Agere with any of their respective directors,
officers or employees in effect immediately prior to the
effective time with respect to acts or omissions prior to the
effective time of the merger. LSI and Agere have also agreed
that following the effective time of the merger, LSI will
indemnify the officers, directors and employees of Agere with
respect to all acts or omissions by them in their capacities as
such prior to the effective time to the fullest extent permitted
by law (including with respect to advancement of expenses) and
will honor all indemnification agreements.
The merger agreement further requires the combined company to,
for a minimum of six years following the effective time of the
merger, maintain coverage under an officers and
directors liability insurance policy with coverage and
amounts no less favorable than those Agere maintained for its
directors prior to the merger under the existing Agere
officers and directors liability insurance policy.
The combined company will not be obligated to make annual
premiums in excess of 225% of the most recent annual premiums.
If annual premiums for existing
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coverage exceed such maximum, LSI will obtain a policy with the
greatest coverage available at a cost not exceeding 225% of
current premiums. Alternatively, LSI may purchase a six-year
tail prepaid policy on the existing Agere officers and
directors liability insurance policy, with coverage and
amounts no less favorable than those currently in effect. The
agreements regarding insurance and indemnification are
enforceable by the directors and officers of Agere and are
binding on the successors and assigns of LSI and the surviving
corporation.
Board of
Directors of the Combined Company
Under the terms of the merger agreement, three directors will be
designated by Agere to serve on the board of directors of the
combined company after the effective time of the merger.
Continued
Employment with the Combined Company
Certain of Ageres current executive officers will be
offered continued employment with the combined company after the
effective time of the merger. In addition, Abhijit Talwalkar
will serve as President and Chief Executive Officer and Bryon
Look will serve as Chief Financial Officer following the merger.
Although the exact composition of the combined companys
executive management team following the merger was not finalized
as of the date of this joint proxy statement/prospectus, it is
expected that Phil Brace, Phil Bullinger, Jon Gibson, Andy
Micallef, Umesh Padval, Jean Rankin, Denis Regimbal, Jeff
Richardson and Rudy Stroh will serve as part of the combined
companys post-merger executive management team.
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THE
MERGER AGREEMENT
The following summary describes the material provisions of
the merger agreement. The provisions of the merger agreement are
complicated and not easily summarized. This summary may not
contain all of the information about the merger agreement that
is important to you. The merger agreement is attached to this
joint proxy statement/prospectus as Annex A and is
incorporated by reference into this joint proxy
statement/prospectus, and LSI and Agere encourage you to read it
carefully in its entirety for a more complete understanding of
the merger agreement.
The merger agreement has been included to provide you with
information regarding its terms. It is not intended to provide
any other factual information about LSI or Agere. Such
information can be found elsewhere in this document and in the
public filings that LSI and Agere make with the SEC, which are
available without charge through the SECs website at
http://www.sec.gov.
The representations and warranties described below and
included in the merger agreement were made by each of LSI and
Agere to the other. These representations and warranties were
made as of specific dates and are subject to important
exceptions, limitations and supplemental information contained
in the confidential disclosure letters provided by each of LSI
and Agere to the other in connection with the signing of the
merger agreement, including a contractual standard of
materiality different from that generally applicable under
federal securities laws. In addition, the representations and
warranties may have been included in the merger agreement for
the purpose of allocating risk between LSI and Agere rather than
to establish matters as facts. The merger agreement is described
in this joint proxy statement/prospectus and included as
Annex A only to provide you with information regarding its
terms and conditions, and not to provide any other factual
information regarding LSI, Agere or their respective businesses.
Accordingly, you should not rely on the representations and
warranties in the merger agreement as characterizations of the
actual state of facts about LSI or Agere, and you should read
the information provided elsewhere in this joint proxy
statement/prospectus and in the documents incorporated by
reference into this joint proxy statement/prospectus for
information regarding LSI and Agere and their respective
businesses. See Where You Can Find More Information
beginning on page 134 of this joint proxy
statement/prospectus.
The
Merger
The merger agreement provides for the merger of Atlas
Acquisition Corp., a newly formed, wholly owned subsidiary of
LSI, with Agere. Agere will survive the merger as a wholly owned
subsidiary of LSI.
Closing
and Effective Time of the Merger
LSI and Agere will complete the merger when all of the
conditions to completion of the merger contained in the merger
agreement, which are described in the section entitled
Conditions to Obligations to Complete the Merger
beginning on page 106, are satisfied or waived, including
approval by the LSI stockholders of the issuance of shares of
LSI common stock in the merger and the adoption of the merger
agreement by the Agere stockholders. The merger will become
effective at the time specified in the certificate of merger to
be filed with the Secretary of State of the State of Delaware.
Treatment
of Securities
Agere
Common Stock
Upon completion of the merger, each share of Agere common stock
outstanding immediately prior to the effective time of the
merger will be canceled and extinguished and automatically
converted into the right to receive 2.16 shares of LSI
common stock and the associated rights issued under LSIs
stockholder rights plan, and the cash payable in lieu of any
fractional shares as described in Fractional Shares
beginning on page 95. Upon completion of the merger, LSI
also will assume outstanding options to purchase Agere common
stock and Agere restricted stock units as described below.
The exchange ratio in the merger (i.e., 2.16 shares of LSI
common stock for each share of Agere common stock) will be
adjusted to reflect the effect of any stock split, reverse stock
split, reclassification, stock dividend (including any dividend
or distribution of securities convertible into LSI common stock
or Agere common stock), reorganization, recapitalization,
reclassification or other like change with respect to LSI common
stock or Agere
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common stock having a record date on or after the date of the
merger agreement and prior to the effective time of the merger.
Each share of Agere common stock held or owned by LSI, Agere or
LSIs merger subsidiary or any of their direct or indirect
wholly owned subsidiaries immediately prior to the merger will
be automatically canceled and retired and cease to exist, and
none of Agere, LSI or any of their direct or indirect
subsidiaries will receive any securities of LSI or other
consideration in exchange for those shares.
Fractional
Shares
LSI will not issue any fractional shares of common stock in
connection with the merger. Instead, each record holder of Agere
common stock who would otherwise be entitled to receive a
fraction of a share of LSI common stock will receive cash,
without interest, in an amount equal to the fraction multiplied
by the last reported sales price of LSI common stock (determined
after aggregating all of the Agere common stock held by each
such holder and multiplying such shares by the stock exchange
ratio) at the end of regular trading hours on the closing date
of the merger, as reported on the NYSE.
Treatment
of Agere Equity Awards
When the merger is completed, LSI will assume outstanding
options to purchase shares of Agere common stock and convert
them into options to purchase shares of LSI common stock. LSI
will convert each assumed Agere option into an option to
purchase that number of shares of LSI common stock equal to the
number of shares of Agere common stock subject to the Agere
option immediately prior to the merger, multiplied by 2.16. The
exercise price per share for each assumed Agere option will be
equal to (x) the exercise price per share of the Agere
option divided by (y) 2.16. The exercise price and number
of shares will be rounded so as to comply with incentive stock
option requirements and the requirements of Section 409A of
the Code. Each assumed option will be subject to all other terms
and conditions set forth in the applicable documents evidencing
each Agere option immediately prior to the effective time of the
merger.
If any shares of Agere common stock outstanding at the effective
time are unvested or subject to a repurchase option or other
risk of forfeiture, then the LSI stock payable in exchange for
those shares also will be unvested and subject to the same
repurchase option or other risk of forfeiture, and will not be
paid until the shares vest or the repurchase option or other
forfeiture risks lapse.
LSI will also assume outstanding Agere restricted stock unit
awards. Each assumed restricted stock unit award will be
converted into an award to receive a number of shares of LSI
common stock equal to the product obtained by multiplying
(x) the number of shares of Agere common stock subject to
each assumed restricted stock unit award immediately prior to
the effective time of the merger by (y) 2.16. Each assumed
restricted stock unit that was granted with a purchase price
equal to Agere par value or with no purchase price shall have a
purchase price per share equal to LSI par value, which LSI shall
deem paid by virtue of past services rendered by the holder of
such assumed restricted stock unit. Each assumed restricted
stock unit that was granted with a purchase price other than
Agere par value shall have a purchase price per share equal to
the quotient obtained by dividing (x) the per share price
of the Agere common stock subject to such assumed restricted
stock unit by (y) 2.16. The number of shares and purchase
price will be rounded in accordance with the merger agreement.
Each assumed restricted stock unit award will be subject to all
other terms and conditions set forth in the applicable documents
evidencing each Agere restricted stock unit award immediately
prior to the effective time of the merger, except that with
respect to any restricted stock unit award which vests upon a
specified date or dates if performance based criteria are
achieved, achievement of such criteria shall be waived and the
assumed restricted stock unit award shall vest otherwise in
accordance with its terms and conditions.
LSI has agreed to file, within five (5) business days after
completion of the merger, a registration statement on
Form S-8
with the Securities and Exchange Commission covering shares of
LSI common stock issuable in connection with the assumed
options, restricted stock units and LSI shares payable in
exchange for Agere restricted stock. LSI will take such further
actions as may be reasonably necessary, including filing a
Registration Statement on
Form S-3
or another appropriate form, to include under such registration
statement shares of LSI common stock subject to assumed options,
assumed restricted stock units and LSI shares payable in
exchange for Agere restricted
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stock. As a result, all shares of LSI common stock issuable upon
the exercise of assumed options and payout or vesting of
restricted stock units or restricted stock will be freely
transferable as long as the registration statement(s) remains
effective (subject to LSIs insider trading policy and any
applicable securities laws).
Prior to the effective time of the merger, the Agere employee
stock purchase plan will be terminated and all outstanding
purchase rights will be automatically exercised.
Exchange
Fund; Exchange of Stock Certificates
Prior to the completion of the merger, LSI will select a bank or
trust company to act as the exchange agent for the merger, to
hold the shares of LSI stock to be issued to Agere stockholders
in connection with the merger. Upon completion of the merger,
LSI will establish an exchange fund with the exchange agent
which will consist of shares of LSI common stock, and cash to be
issued in lieu of fractional shares of LSI common stock, and, if
required pursuant to the merger agreement, any dividends or
other distributions on LSI common stock with a record date after
the completion of the merger.
As promptly as practicable following completion of the merger,
the exchange agent will mail to each record holder of Agere
common stock a letter of transmittal and instructions for
surrendering the record holders stock certificates in
exchange for a certificate representing the shares of LSI common
stock issuable to each such holder pursuant to the merger. Those
holders of Agere common stock who properly surrender their Agere
stock certificates in accordance with the exchange agents
instructions will receive (1) the shares of LSI common
stock issuable to each such holder pursuant to the merger,
(2) cash in lieu of any fractional share of LSI common
stock issuable to any such holders, and (3) dividends or
other distributions, if any, to which they are entitled under
the terms of the merger agreement. After the effective time of
the merger, each certificate representing shares of Agere common
stock that has not been surrendered will represent only the
right to receive the shares of LSI common stock issuable
pursuant to the merger and cash in lieu of any fractional share
of LSI common stock to which the holder of any such certificate
is entitled. Agere stockholders who hold their shares in book
entry form will receive instructions for the exchange of their
shares for the merger consideration from the exchange agent.
Following the completion of the merger, Agere will not register
any transfers of Agere common stock on its stock transfer books.
Holders of Agere common stock should not send in their Agere
stock certificates until they receive a letter of transmittal
from the exchange agent with instructions for the surrender of
Agere stock certificates.
Distributions
with Respect to Unexchanged Shares
Registered holders of Agere common stock will be entitled to
dividends and other distributions declared or made after the
date of the merger agreement with a record date after the
effective time of the merger with respect to the number of whole
shares of LSI common stock which they are entitled to receive
upon exchange of their Agere common stock. These holders will
not be entitled to receive these dividends or distributions,
however, until they surrender their Agere common stock to the
exchange agent in accordance with the exchange agents
instructions.
Termination
of Exchange Fund; No Liability
At any time following the first anniversary of the completion of
the merger, Agere, as the corporation surviving the merger, will
be entitled to the return of all cash and shares of LSI common
stock held in the exchange fund. Thereafter, Agere stockholders
may look only to Agere, as the corporation surviving the merger,
for any merger consideration and any cash payment relating to
any dividends or distributions to which they may be entitled
upon surrender of their certificates representing shares of
Agere common stock.
Neither LSI, Agere, nor the exchange agent will be liable to any
holder of Agere common stock or LSI common stock, as the case
may be, for any shares (or any related dividends or
distributions) properly delivered to a public official under any
applicable abandoned property, escheat or similar law.
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Lost,
Stolen or Destroyed Certificates
If an Agere stock certificate is lost, stolen or destroyed, the
holder of the certificate must deliver an affidavit and may,
subject to LSIs request, be required to deliver an
indemnity bond prior to receiving any merger consideration.
Representations
and Warranties
The merger agreement contains general representations and
warranties made by each of LSI and Atlas Acquisition Corp. on
the one hand, and Agere on the other, regarding aspects of
their, and their respective subsidiaries, respective businesses,
financial condition and structure, as well as other facts
pertinent to the merger. These representations and warranties
are subject to materiality, knowledge and other similar
qualifications in many respects, expire at the effective time of
the merger and relate to:
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corporate organization, qualifications to do business, corporate
standing and corporate power;
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absence of any breach of each partys certificate of
incorporation and bylaws and the certificates of incorporation,
bylaws and similar organizational documents of its subsidiaries;
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capitalization;
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corporate authorization, including board approval, to enter into
and carry out the obligations contained in the merger agreement;
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enforceability of the merger agreement;
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the vote of stockholders required to complete the merger;
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governmental and regulatory approvals required in connection
with the merger;
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absence of any conflict or violation of the corporate charter
and bylaws and the charter, bylaws and similar organizational
documents of subsidiaries, any applicable legal requirements, or
any agreements with third parties, as a result of entering into
and carrying out the obligations contained in the merger
agreement;
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absence of any rights of first refusal or acquisition or
pre-emptive rights with respect to capital stock or other assets
or properties arising or resulting from entering into and
carrying out the obligations contained in the merger agreement;
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SEC filings and the financial statements contained in those
filings;
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controls and procedures for required disclosures of financial
and non-financial information to the SEC;
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absence of undisclosed liabilities;
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absence of certain changes or events between the date of the
last audited balance sheet and December 3, 2006;
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compliance with applicable laws, and possession and compliance
with all permits required for the operation of business;
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litigation;
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material contracts and the absence of breaches of material
contracts;
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employee benefit plans and labor relations;
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real and personal property matters;
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tax matters;
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environmental matters;
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intellectual property matters;
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insurance matters;
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absence of interested party transactions;
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brokers used and fees payable in connection with the merger;
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opinions of financial advisors; and
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applicability of Delaware anti-takeover statutes to the merger.
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In addition to the foregoing, the merger agreement contains a
representation and warranty made by Agere regarding the
inapplicability of Ageres stockholders rights plan to the
merger and other transactions contemplated by the merger
agreement.
Conduct
of Business before Completion of the Merger
Under the merger agreement, each of LSI and Agere has agreed
that, until the earlier of the completion of the merger or
termination of the merger agreement, or unless contemplated by
the merger agreement, required by applicable law or the other
party consents in writing, it will carry on its business in the
ordinary course consistent with past practices and in compliance
with applicable laws, pay all debts and taxes when due and pay
or perform all material obligations when due; and will use its
reasonable best efforts to:
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preserve intact its present business;
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keep available the services of its current officers and
employees; and
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preserve its relationships with customers, suppliers,
distributors and others with which it has significant business
relations.
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Under the merger agreement, each of LSI and Agere has also
agreed that, until the earlier of the completion of the merger
or termination of the merger agreement, or unless the other
party consents in writing, it will not (and will not permit its
subsidiaries to):
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propose to adopt any amendments or amend its charter and bylaws
or comparable organizational documents, provided that the
organizational documents of the subsidiaries may be amended in a
way that is not material;
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issue, sell, transfer, authorize or encumber its capital stock,
or securities convertible into its capital stock, other than
issuances of common stock (1) upon the exercise of employee
stock options or other stock based awards existing prior to the
date of the merger agreement, (2) pursuant to grants of
purchase rights under an employee stock purchase or other
similar plan, or (3) pursuant to grants to newly hired
employees of options to purchase common stock granted in the
ordinary course of business consistent past practice;
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acquire or redeem, directly or indirectly, its capital stock or
the capital stock of its subsidiaries, provided that neither
party is prohibited from dissolving
and/or
merging into any of its subsidiaries certain other subsidiaries
that are not material to it and its subsidiaries taken as a
whole;
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effect any stock splits, recapitalizations and similar
transactions, provided that neither party is prohibited from
dissolving
and/or
merging into any of its subsidiaries certain other subsidiaries
that are not material to it and its subsidiaries taken as a
whole;
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adopt any plan of complete or partial liquidation, dissolution,
recapitalization or reorganization, other than with respect to
the merger or as provided in the merger agreement, provided that
neither party is prohibited from dissolving
and/or
merging into any of its subsidiaries certain other subsidiaries
that are not material to it and its subsidiaries taken as a
whole;
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incur or assume any long-term or short-term debt for borrowed
money, guarantee any obligations, or make any loans, advances,
capital contributions or investments other than in the ordinary
course of business consistent with past practices;
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materially increase the compensation of, or enter into any
agreements providing for additional benefits to, any director,
officer or employee;
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forgive any loans to any of its employees, officers or
directors, or any employees, officers or directors of any of its
subsidiaries or affiliates;
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make any deposits or contribution of cash or other property to
its employee benefits plans, other than as required by the terms
of such plans;
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enter into, amend or extend any collective bargaining agreement;
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acquire, sell, lease, license, or dispose of any material
property or assets other than (1) transactions pursuant to
existing contracts, (2) transactions in the ordinary course
of business consistent with past practices, or
(3) transactions not in excess of $10,000,000 individually,
or $40,000,000 in the aggregate;
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change accounting principles and practices except as required by
United States generally accepted accounting principles or other
applicable law;
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make or change any material tax election, adopt or change any
tax accounting method, settle or compromise any material tax
liability, or consent to the extension or waiver of the
limitations period applicable to a material tax claim or
assessment;
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enter into, amend in any material respect, or grant any release
or relinquishment of any material rights under any material
contract;
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grant or divest any exclusive rights with respect to any of its
material intellectual property or the material intellectual
property rights of any of its subsidiaries, or materially modify
or amend standard warranty terms;
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acquire (by merger, consolidation or acquisition of stock or
assets) any other entity or any equity interest therein;
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authorize, incur or commit to incur any new capital
expenditure(s) which in the aggregate exceed $40,000,000, except
as may be required pursuant to existing contracts;
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settle or compromise any pending or threatened legal
proceedings, or pay, discharge or satisfy any claims,
liabilities or obligations other than payment or satisfaction of
liabilities or settlement of legal proceedings reflected in its
financial statements, covered by insurance policies, settled in
the ordinary course of business consistent with past practice or
otherwise less than $500,000 individually and $5,000,000 in the
aggregate;
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revalue in any material respect any of its properties or assets,
including writing-off notes or accounts receivable other than in
the ordinary course of business, consistent with past practices,
except as may be required by applicable legal requirements or
U.S. generally accepted accounting principles;
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convene any regular or special meeting (or any adjournment or
postponement thereof) of its stockholders; or
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enter into a contract to do any of the foregoing actions, or
knowingly take any action which is reasonably expected to result
in any of the conditions to the consummation of the transactions
contemplated by the merger agreement not being satisfied, or
knowingly take any action which would materially impair its
ability to consummate the transactions contemplated by the
merger agreement in accordance with its terms or materially
delay such consummation.
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Agere has also agreed to, at the closing of the merger, execute
and deliver to The Bank of New York, as trustee, under the
indenture dated as of June 19, 2002, between Agere and the
Bank of New York, as supplemented, relating to Ageres
convertible subordinated notes, a supplemental indenture
effective as of the closing of the merger complying with the
requirements of the indenture, in form and substance reasonably
satisfactory to LSI.
LSI and
Agere Are Prohibited from Soliciting Other Offers
Under the terms of the merger agreement, subject to certain
exceptions described below, each of LSI and Agere agreed that it
will not, directly or indirectly:
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solicit, initiate, facilitate, knowingly encourage or
facilitate, or induce the making, submission or announcement of,
any acquisition proposal by a third party;
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furnish to any person (other than a party to the merger
agreement or their designees) any non-public information
relating to it or its subsidiaries, or afford access to its
business, properties, assets, books or records in a manner
intended to assist or facilitate any acquisition proposal by a
third party;
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participate in any discussions or negotiations with any third
party regarding any acquisition proposal;
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approve, endorse or recommend any acquisition proposal by a
third party;
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enter into any letter of intent or similar document or any
contract, agreement or commitment constituting or otherwise
relating to any acquisition transaction;
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terminate, amend or expressly waive any rights under any
standstill or other similar contract between it or
any of its subsidiaries and any person; or
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propose publicly or agree to any of the foregoing with respect
to an acquisition proposal.
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In addition, each of LSI and Agere agreed that it will not
authorize or permit any of its officers, directors, employees,
subsidiaries, controlled affiliates, investment bankers,
attorneys, or other advisors or representatives to do any of the
foregoing.
For purposes of the restrictions described above, an
acquisition proposal is any inquiry, proposal or
offer, filing of any regulatory application or disclosure of any
intention by a third party relating to any of the following:
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any acquisition, directly or indirectly, of a 15% or greater
interest in its total outstanding equity interests or voting
securities, or a tender offer or exchange offer that would
result in any person owning 15% or more of its voting power;
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any acquisition or purchase of 50% or more of any class of
equity or other voting securities of one or more subsidiaries of
LSI or Agere, the business(es) of which, individually or in the
aggregate, generate or constitute 15% or more of the net
revenues, net income or assets (as of or for the 12-month period
ending on the last day of its most recently completed fiscal
year) of it and its subsidiaries, taken as a whole;
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any merger, consolidation, business combination or similar
transaction involving LSI or Agere or one or more of its
subsidiaries pursuant to which the stockholders of such party
and its subsidiaries, as applicable, immediately preceding such
transaction hold less than 85% of the equity interests in the
surviving or resulting entity of such transaction;
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any sale, lease (other than in the ordinary course of business),
acquisition or disposition of assets of LSI or Agere that
generate or constitute 15% or more of the net revenues, net
income or assets of LSI or Agere and its subsidiaries taken as a
whole;
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any liquidation, dissolution, recapitalization or other
significant corporate reorganization of LSI or Agere or one or
more of its subsidiaries that generate or constitute 15% or more
of the net revenues, net income or assets of LSI or Agere and
its subsidiaries taken as a whole; or
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any combination of the foregoing.
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Under the merger agreement, each of LSI and Agere also agreed,
and agreed to cause their officers, directors, employees,
subsidiaries, controlled affiliates, investment bankers,
attorneys and other advisors and representatives, to:
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cease any and all existing activities, discussions or
negotiations with respect to any acquisition proposal; and
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promptly request that all confidential information with respect
to any acquisition proposal furnished by or on its behalf, be
returned or destroyed.
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Each of LSI and Agere is obligated to notify the other orally
and in writing within 24 hours from its receipt of any
acquisition proposal of the type described above or any request
for nonpublic information that would reasonably be expected to
lead to an acquisition proposal, the material terms and
conditions of the acquisition proposal or information request
(including copies of all written materials comprising or
relating thereto) and the identity of the person or group making
the acquisition proposal or information request. In addition,
each of LSI and Agere is obligated to provide the other party
with reasonably prompt notice of a meeting of its board of
directors (or
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any committee thereof) at which the board of directors (or
committee thereof) is reasonably expected to consider an
acquisition proposal of the type described above, and shall
inform the other party as promptly as practicable of any
material change in the price, structure, form of consideration
or other material terms and conditions of the acquisition
proposal.
Each of LSI and Agere is obligated to keep the other party
reasonably informed on a current basis of the status of any
discussions with respect to any acquisition proposal and the
material terms thereof.
Notwithstanding the prohibitions described above, if either LSI
or Agere receives an unsolicited bona fide written acquisition
proposal before the date of its requisite stockholder approval,
under the terms of the merger agreement, the party receiving the
acquisition proposal is permitted to:
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engage or participate in discussions or negotiations with any
person that has made a bona fide acquisition proposal in writing
that its board of directors reasonably determines in good faith
(after consultation with a financial advisor of nationally
recognized standing and its outside legal counsel) constitutes
or is reasonably likely to lead to a superior proposal; and/or
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furnish to any person that has made a bona fide acquisition
proposal in writing that such its board of directors reasonably
determines in good faith (after consultation with a financial
advisor of nationally recognized standing and its outside legal
counsel) constitutes or is reasonably likely to lead to a
superior proposal, any non-public information relating to such
party or any of its subsidiaries pursuant to a confidentiality
agreement the terms of which are no less favorable to it than
those contained in the confidentiality agreement entered into
between LSI and Agere.
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Prior to taking any of the foregoing actions, the board of
directors of the party proposing to take such action must
reasonably determine in good faith (after consultation with
outside legal counsel) that that the failure to take such action
would reasonably be expected to be a breach of its fiduciary
duties under applicable law, and at least forty-eight
(48) hours prior to engaging or participating in any such
discussions or negotiations with, or furnishing any non-public
information, the party proposing to take such action must give
the other party written notice of the identity of such person
making the acquisition proposal and the material terms and
conditions of such acquisition proposal (including by providing
a copy of all written materials comprising or relating thereto)
and of such partys intention to engage or participate in
such discussions or negotiations or furnish non-public
information, and contemporaneously with furnishing any
non-public information, the party proposing to take such action
must furnish such non-public information to the other party (to
the extent not previously furnished). For the purposes of the
foregoing, a bona fide written acquisition proposal involving
the acquisition of all of the outstanding voting securities of
LSI or Agere which is not subject to any financing contingencies
(and if financing is required, such financing is then fully
committed) and with respect to which the board of directors of
such party shall have reasonably determined in good faith (after
consultation with a financial advisor of nationally recognized
standing and its outside legal counsel, and after taking into
account, among other things, the financial, legal and regulatory
aspects of the proposed acquisition transaction, as well as any
counter-offer or proposal made by the other party) that such
party is reasonably capable of timely consummating the proposed
transaction and the proposed transaction would be more favorable
to the stockholders of the applicable party, from a financial
point of view, than the transactions contemplated by this the
merger agreement, shall constitute a superior
proposal.
Obligations
of each of the LSI and Agere Boards of Directors with Respect to
its Recommendation and Holding a Meeting of its
Stockholders
Under the terms of the merger agreement, the LSI and Agere
boards of directors each agreed to call, hold and convene a
meeting of its stockholders promptly after the registration
statement, of which this joint proxy statement/prospectus forms
a part, is declared effective by the SEC. The LSI board of
directors agreed to recommend the approval of the issuance of
shares of LSI common stock in the merger to its stockholders and
to use reasonable best efforts to obtain the required
stockholder approval. The Agere board of directors agreed to
recommend the adoption of the merger agreement to its
stockholders and to use reasonable best efforts to obtain the
required stockholder adoption and approvals.
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Each of the Agere and LSI boards of directors also agreed not to
withhold, withdraw, amend, modify, qualify or condition in a
manner adverse to the other party, or publicly propose to
withhold, withdraw, amend, modify, qualify or condition in a
manner adverse to the other party, its recommendations relating
to the merger and the merger agreement.
Notwithstanding the obligations described above, in response to
an acquisition proposal of the type described above deemed by
the LSI or Agere board of directors to be a superior proposal,
the board of directors of LSI or Agere, as the case may be, may
change its recommendation or announce an intention to change its
recommendation if the following conditions are met:
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the stockholders meeting shall not have occurred;
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a superior proposal of the type described above has been made
and has not been withdrawn, and such proposal was not a result
of a breach by the receiving party of its non-solicitation
obligations described above;
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the party has provided the other party with five business
days prior written notice of its intention to take such
action and has provided the other party with the opportunity to
meet and discuss in good faith the modification of the terms of
the merger agreement so that the transactions contemplated
thereby can be consummated;
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the other party to the merger agreement shall not have made,
within five days after receipt of notice of the
counterpartys boards intention to change its
recommendation, a counter-offer or proposal that the board of
directors of the party reasonably determines in good faith,
after consultation with a financial advisor of nationally
recognized standing and its outside legal counsel, is at least
as favorable to its stockholders as such superior
proposal; and
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the partys board of directors has determined in good
faith, after consulting with outside legal counsel, that in
light of the superior proposal, the failure to take such action
would be reasonably likely to be a breach of its fiduciary
duties under applicable law.
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In addition and notwithstanding the obligations described above,
absent an acquisition proposal of the type described above
deemed by the LSI or Agere board of directors to be a superior
proposal, the board of directors of LSI or Agere, as the case
may be, may change its recommendation or announce an intention
to change its recommendation:
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the stockholders meeting shall not have occurred;
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the party has provided the other party with five business
days prior written notice of its intention to take such
action and has provided the other party with the opportunity to
meet and discuss in good faith the purported basis for the
proposed recommendation change, the other partys reaction
thereto and any possible modification of the terms of the merger
agreement so that the transactions contemplated thereby can be
consummated; and
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the partys board of directors has determined in good
faith, after consulting with outside legal counsel, the failure
to take such action would be reasonably likely to be a breach of
its fiduciary duties under applicable law.
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Regardless of whether either the LSI or Agere board of directors
has received an acquisition proposal or a superior proposal of
the type described above, or has withheld, withdrawn, amended or
modified its recommendation to its stockholders relating to the
merger, each of LSI and Agere is obligated to call, give notice
of, convene and hold a meeting of its stockholders to consider
and vote upon its respective proposal relating to the merger and
the fact that any of the foregoing has occurred will not give
LSI or Agere a right to terminate the merger agreement or affect
any other obligation of the parties under the merger agreement.
Neither LSI nor Agere is permitted under the merger agreement to
submit any acquisition proposal, including a superior proposal,
to a vote of its respective stockholders at or prior to its
stockholders meeting relating to the merger.
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Joint
Proxy Statement/Prospectus
The merger agreement provides that as promptly as practicable
after the execution and delivery thereof, LSI and Agere will
prepare, and LSI shall file with the SEC, a registration
statement on Form
S-4, of
which this joint proxy statement/prospectus forms a part, which
shall include a prospectus for the issuance of shares of LSI
common stock in the merger, a proxy statement of LSI for use in
connection with the solicitation of proxies for the
LSI stockholders meeting and a proxy statement of
Agere for use in connection with the solicitation of proxies for
the Agere stockholders meeting. Each of LSI and Agere has
agreed to use its reasonable best efforts to have a registration
statement on Form
S-4, of
which this joint proxy statement/prospectus forms a part,
declared effective by the SEC as promptly as practicable after
such filing with the SEC and have agreed to fully cooperate with
the other party hereto and its respective representatives in the
preparation of this joint proxy statement/prospectus. As
promptly as practicable after this joint proxy
statement/prospectus is declared effective by the SEC, LSI and
Agere shall cause this joint proxy statement/prospectus to be
mailed to their respective stockholders.
Subject to certain exceptions set forth in the agreement, no
amendment or supplement (including by incorporation by
reference) to this joint proxy statement/prospectus shall be
made without the approval of LSI and Agere, which approval shall
not be unreasonably withheld or delayed. Agere and LSI have each
agreed to notify the other as promptly as practicable after the
receipt by it of any written or oral comments of the SEC or its
staff on, or of any written or oral request by the SEC or its
staff for amendments or supplements to, this joint proxy
statement/prospectus and related filings, and shall promptly
supply the other with copies of all correspondence between it or
any of its representatives and the SEC or its staff with respect
to any of the foregoing filings.
LSI and
Agere Stockholders Rights Agreements
Under the terms of the merger agreement, until the earlier of
the time the merger is completed or the merger agreement is
terminated in accordance with its terms, neither LSI nor Agere
may, directly or indirectly, take any action that would result
in the parties respective stockholder rights agreements
being applicable to the other party in connection with the
merger agreement.
Regulatory
Matters
In accordance with the terms of the merger agreement, each of
LSI, LSIs merger subsidiary and Agere shall use its
reasonable best efforts to take all actions and to do all things
reasonably necessary to consummate and make effective the
transactions contemplated by the merger agreement, including
using reasonable best efforts to:
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cause the conditions to the merger to be satisfied or fulfilled;
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obtain all necessary consents, waivers and approvals under any
contracts to which Agere or any of its subsidiaries is a party
so as to maintain and preserve the benefits under such contracts
following the consummation of the merger;
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obtain all necessary actions or non-actions, waivers, consents,
approvals, orders and authorizations from governmental
authorities, seek the expiration or termination of any
applicable waiting periods under applicable legal requirements,
and make all necessary registrations, declarations and filings
with governmental authorities;
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seek to have vacated or otherwise lifted or removed any legal
order that has been issued or granted which is in effect and has
the effect of making the merger or related transactions illegal
in any jurisdiction in which LSI or Agere have substantial
business or operations or which has the effect of prohibiting,
preventing or otherwise restraining the consummation of the
merger or related transactions in any such jurisdiction; and
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execute or deliver any additional instruments reasonably
necessary to consummate the transactions contemplated by, and to
fully carry out the purposes of, the merger agreement.
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In connection with the foregoing, each of LSI and Agere have
filed with the FTC and the Antitrust Division of the DOJ a
Notification and Report Form relating to the merger and related
filings and have made antitrust filings with regulators in China
and Germany. Each of LSI and Agere has agreed to cooperate and
coordinate with the other
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in the making of such filings and inform the other party hereto
of any communication from any governmental authority regarding
the merger and related transactions.
Public
Announcements
Neither LSI nor Agere will issue any press release or make any
public statement with respect to the merger agreement or the
merger without the prior written consent of the other party,
which consent shall not be unreasonably withheld. However, LSI
and Agere may, without the prior consent of the other, issue a
press release or make a public statement relating to the merger
agreement or the merger if, after consulting with outside
counsel, it determines that the press release or public
statement is required by applicable law or the rules and
regulations of the NYSE, and it has notified and consulted with
the other party. Also, LSI and Agere may, without the prior
written consent of the other, issue a press release or make a
public statement relating to a change in recommendation by the
LSI board of directors or Agere board of directors, as the case
may be, that is permitted under the merger agreement.
Agere
Employee Benefits; 401(k) Plans
LSI is obligated to, for a period of two years following the
effective time of the merger, but in no event later than such
time as an Agere employee ceases to be employed by or provide
services to Agere or LSI, provide to each Agere employee
compensation and health, welfare and pension benefits (not
including equity awards) that are substantially equivalent, in
the aggregate, to those provided to such Agere employees
immediately prior to the signing of the merger agreement, except
as may be required by applicable law or collective bargaining or
other union or similar trade organization agreements. LSI is
also obligated to honor in accordance with their terms all
designated employment, change of control, severance and other
compensation and benefits arrangements existing prior to the
execution of the merger agreement between Agere and any of its
subsidiaries and any director, officer or employee thereof, and
to refrain from amending or terminating any such agreement for a
period of at least two (2) years following the effective
date of the merger, except as may be required by law or as may
be necessary to avoid the imposition of tax under
Section 409A of the Internal Revenue Code.
Prior to the closing of the merger, LSI and Agere agree to
cooperate in good faith with respect to the appropriate
post-closing treatment of any Agere 401(k) plans in order to
effectuate an orderly transition with respect to such plans and
minimize any adverse effect on participating employees with
respect to the transition. In the event that LSI determines to
terminate one or more Agere 401(k) plans, LSI will provide
written notice to Agere requesting that such plan(s) be
terminated, and Agere shall adopt a resolution, effective
immediately prior to the closing of the merger, to terminate the
applicable 401(k) plans.
Indemnification
and Insurance
Under the terms of the merger agreement, LSI agreed to honor all
obligations of Agere contained in any indemnification agreement
in effect prior to completion of the merger between Agere or its
subsidiaries and any of its current or former directors or
officers for a period of six years after completion of the
merger. Also, LSI shall indemnify and hold harmless the
individuals who on or prior to the effective time of the merger
were officers, directors and employees of Agere or its
subsidiaries, or were serving at the request of Agere as an
officer, director or employee of any other corporation,
partnership or joint venture, trust, employee benefit plan or
other enterprise with respect to all acts or omissions by them
in their capacities as such or taken at the request of Agere or
any of its subsidiaries at any time prior to the effective time
of the merger to the fullest extent permitted by law (including
with respect to advancement of expenses).
For six years from completion of the merger, LSI also agreed to
maintain the existing policy of Ageres directors and
officers and fiduciary liability insurance covering claims
arising from facts or events that occurred prior to the
completion of the merger, including acts or omissions occurring
in connection with the merger agreement and completion of the
merger to the extent such acts or omissions are covered by the
existing insurance policy, and covering each director and
officer of Agere who was covered at the effective time of the
merger on terms with respect to coverage and amounts no less
favorable than those in effect prior to the signing of the
merger agreement. However, LSI will not be required to expend in
any one year an amount in excess of 225% of the annual premium
paid by Agere at the time the merger agreement was signed. In
the event the premium exceeds 225% of the
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annual premium at the time the merger agreement was signed, LSI
will be obligated to obtain an insurance policy with the
greatest coverage available for a cost not exceeding 225% of the
annual premium paid by Agere at the time the merger agreement
was signed. Alternatively, Agere may, prior to completion of the
merger, purchase a six year tail prepaid insurance
policy on terms and conditions no less advantageous than the
existing insurance policy at a cost not to exceed six times the
maximum amount LSI is required to expend under the merger
agreement to maintain this insurance for a one-year period, in
which case LSI and the surviving corporation in the merger will
maintain such tail policy in full force and effect
and continue to honor such obligations for so long as such
tail policy is in full force and effect.
Listing
of LSI Common Stock
LSI has agreed to use its reasonable best efforts to have
authorized for listing on the NYSE prior to the effective time
of the merger the shares of LSI common stock issuable in the
merger, the shares of LSI common stock issuable upon the
exercise of all Agere options assumed by LSI and the shares of
LSI common stock issuable in respect of all Agere restricted
stock units assumed by LSI.
Takeover
Statutes
The merger agreement provides that if any business
combination, fair price,
moratorium, control share acquisition or
other similar anti-takeover statute or regulation under
applicable law becomes applicable to the merger or any of the
other transactions contemplated by the merger agreement, Agere
and its board of directors will promptly grant such approvals
and take such actions as are necessary to eliminate or minimize
the effects of such statute.
Agere
Insiders
The merger agreement provides the LSI board of directors, or a
committee thereof consisting of non-employee directors for
purposes of
Rule 16b-3(d)
under the Exchange Act, shall adopt a resolution in advance of
the effective time of the merger providing that the receipt by
those officers and directors of Agere who are subject to the
reporting requirements of Section 16(a) of the Exchange Act
of LSI common stock in exchange for shares of Agere and of LSI
equity-based awards upon assumption and conversion of Agere
equity-based awards, is intended to be exempt pursuant to
Rule 16b-3
under the Exchange Act. In addition, the Agere board of
directors, or a committee thereof consisting of non-employee
directors for purposes of
Rule 16b-3(d)
under the Exchange Act, shall adopt a resolution in advance of
the effective time of the merger providing that the disposition
by such persons of Agere common stock in exchange for shares of
LSI common stock, and the disposition of their Agere
equity-based awards which will be deemed to occur upon the
assumption of those awards and their resulting conversion into
LSI equity-based awards are also intended to be exempt pursuant
to
Rule 16b-3
under the Exchange Act.
Agere
Affiliates
Agere has agreed to use its reasonable best efforts to cause
each person who is at the time of its stockholder meeting an
affiliate for purposes of Rule 145 under the
Securities Act to deliver to LSI a written agreement
substantially in the form agreed between LSI and Agere on or
prior to the effective time of the merger. LSI shall be entitled
to place appropriate legends on the certificates evidencing any
shares of LSI common stock to be received by these Rule 145
affiliates of Agere in the merger reflecting the
restrictions set forth in Rule 145 promulgated under the
Securities Act and to issue appropriate stop transfer
instructions to the transfer agent for LSI common stock,
provided that such legends or stop transfer instructions shall
be removed upon the request of any holder of shares of LSI
common stock issued in the merger if such holders shares
are no longer subject to Rule 145.
Tax
Matters
The merger agreement provides that none of LSI, LSIs
merger subsidiary or Agere may take any action prior to or
following the effective time of the merger that would reasonably
be expected to cause the merger to fail to qualify as a
reorganization within the meaning of Section 368(a) of the
Internal Revenue Code. In addition, each of LSI and Agere has
agreed to use its reasonable best efforts to obtain the opinion
of Wilson Sonsini, and Skadden,
105
Arps to the effect that the Merger will qualify as a
reorganization within the meaning of Section 368(a) of the
Internal Revenue Code.
LSI
Governance Matters after the Merger
At the effective time of the merger, the headquarters and
principal executive offices of LSI and Agere as a combined
company shall remain in Milpitas, California. After the
effective time of the merger, LSI shall cause Agere, as the
surviving corporation in the merger, to maintain Ageres
Allentown, Pennsylvania facilities as a key location for the
combined companys development activities.
Effective upon the consummation of the merger, the LSI board of
directors will consist of nine members, six of whom will be
designated by LSI and three of whom will be designated by Agere.
Effective upon the consummation of the merger, the Chairman of
the LSI board of directors shall be James H. Keyes, and the
Chief Executive Officer of LSI shall be Abhijit Y. Talwalkar.
Conditions
to Obligations to Complete the Merger
The respective obligations of LSI and Atlas Acquisition Corp.,
on the one hand, and Agere, on the other, to complete the merger
and the other transactions contemplated by the merger agreement
are subject to the satisfaction or waiver of each of the
following conditions:
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the SEC shall have declared LSIs registration statement
effective, no stop order suspending its effectiveness shall have
been issued and no proceedings for suspension of the
registration statements effectiveness, or a similar
proceeding in respect of this joint proxy statement/prospectus,
shall have been initiated or threatened in writing by the SEC;
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the merger agreement shall have been adopted by the vote of
holders of the requisite number of shares of Agere common stock
under applicable law, as more fully described under The
Agere Annual Meeting Vote Required for
Approval beginning on page 31;
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the issuance of shares of LSI common stock to holders of Agere
common stock in the merger shall have been approved by the vote
of holders of the requisite number of shares of LSI common
stock, as more fully described under the section entitled
The Special Meeting of LSI Stockholders
Required Vote beginning on page 28;
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all waiting periods under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, with respect to the merger
and the other transactions contemplated by the merger agreement
shall have expired or terminated and all clearances, consents,
approvals, orders and authorizations necessary for the
completion of the merger under the United States or foreign
antitrust laws, where the failure to obtain such foreign
approvals would result in a material adverse effect on LSI,
Agere and their subsidiaries, shall have been received and
become final and non-appealable;
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no temporary restraining order, preliminary or permanent
injunction or other order issued by any court of competent
jurisdiction or other legal restraint or prohibition preventing
the completion of the merger shall be in effect;
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no statute, rule, regulation or order shall have been enacted,
entered, enforced or deemed applicable to the merger by a
governmental entity of competent jurisdiction that has the
effect of making completion of the merger illegal;
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the shares of LSI common stock to be issued in connection with
the merger shall have been authorized for listing on the NYSE,
subject to official notice of issuance; and
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each of LSI and Agere shall have received from its respective
tax counsel an opinion to the effect that the merger will
constitute a reorganization within the meaning of
Section 368(a) of the Internal Revenue Code.
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106
In addition, the respective obligations of each of LSI and Atlas
Acquisition Corp. on the one hand, and Agere on the other, to
effect the merger and the other transactions contemplated by the
merger agreement are subject to the satisfaction or waiver of
the following additional conditions:
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the representations and warranties of the other party shall have
been true and correct (without giving any effect to any
qualification as to materiality or material adverse effect
contained in any specific representation or warranty) on the
date the merger agreement was signed (i.e., December 3,
2006) and as of the date the merger is to be completed as
if made at and as of that time, except:
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where any failures of such representations and warranties to be
true and correct have, individually or in the aggregate, a
material adverse effect, as discussed below;
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for changes contemplated or permitted by the merger
agreement; and
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to the extent the representations and warranties of the other
party address matters only as of a particular date, they must be
true and correct only as of that date.
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the other party shall have performed or complied in all material
respects with all of its agreements and covenants required by
the merger agreement to be performed or complied with by it
before completion of the merger; and
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no material adverse effect, as discussed below, with respect to
the other party shall have occurred since the date the merger
agreement was signed (i.e., December 3, 2006) and be
continuing.
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Material
Adverse Effect
Under the terms of the merger agreement, a material adverse
effect on either LSI or Agere means any fact, circumstance,
change or effect that, individually or when taken together with
all other such facts, circumstances, changes or effects that
exist at the date of determination of the occurrence of the
material adverse effect, has or is reasonably likely to have a
material adverse effect on the business, operations, financial
condition or results of operations of Agere or LSI and their
respective subsidiaries, taken as a whole. However, under the
terms of the merger agreement, no changes or effects resulting
or arising from the following, either alone or in combination,
will be deemed to constitute, nor will any of the following be
taken into account in determining whether there has been or will
or could be, a material adverse effect:
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economic, financial or political conditions in the United States
or any other jurisdiction in which Agere or LSI or any of their
respective subsidiaries has substantial business or operations,
and any changes therein (including any changes arising out of
acts of terrorism, war, weather conditions or other force
majeure events), to the extent that such conditions do not have
a materially disproportionate impact on Agere or LSI and their
respective subsidiaries, taken as a whole, relative to other
semiconductor companies of comparable size;
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conditions in the semiconductor industry, and any changes
therein (including any changes arising out of acts of terrorism,
war, weather conditions or other force majeure events), to the
extent that such conditions do not have a materially
disproportionate impact on Agere or LSI and their respective
subsidiaries, taken as a whole, relative to other semiconductor
companies of comparable size;
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conditions in the financial markets, and any changes therein
(including any changes arising out of acts of terrorism, war,
weather conditions or other force majeure events), to the extent
that such conditions do not have a materially disproportionate
impact on Agere or LSI and their respective subsidiaries, taken
as a whole, relative to other semiconductor companies of
comparable size;
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acts of terrorism or war;
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the announcement or pendency of the merger agreement and the
transactions contemplated thereby;
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changes in legal requirements or U.S. generally accepted
accounting principles (or any interpretations thereof)
applicable to Agere or LSI any of their respective subsidiaries;
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compliance by Agere or LSI and their respective subsidiaries
with the express terms of the merger agreement or the failure by
Agere or LSI or any of their respective subsidiaries to take any
action that is prohibited by the merger agreement;
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any change in the price or trading volume of the LSI or Agere
stock, in and of itself;
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the failure of Agere or LSI to meet public estimates or
forecasts of revenues, earnings or other financial metrics, in
and of itself, or the failure to meet internal projections,
forecasts or budgets of revenues, earnings or other financial
metrics, in and of itself; and
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any changes or effects arising out of or resulting from any
legal claims or other proceedings made by any of the Agere or
LSI stockholders, as the case may be, arising out of or related
to the merger agreement, the merger or any other transactions
contemplated by the merger agreement.
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Termination;
Fees and Expenses
Termination
The merger agreement may be terminated in accordance with its
terms at any time prior to completion of the merger, whether
before or after the adoption of the merger agreement by Agere
stockholders or the approval of the issuance of shares of LSI
common stock to Agere stockholders in connection with the merger
by LSI stockholders:
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by mutual written consent of LSI and Agere duly authorized by
their respective boards of directors;
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by LSI or Agere, if a court of competent jurisdiction or
governmental, regulatory or administrative agency has issued a
nonappealable final order or taken any other action having the
effect of permanently prohibiting the merger;
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by LSI or Agere, if the merger is not completed by May 15,
2007, provided, however, that in the event that the requisite
antitrust approvals have not been obtained on or prior to such
time and all of the other conditions to the consummation of the
transactions contemplated by the merger agreement shall have
been satisfied on or prior to such time (other than those
conditions that by their terms contemplate satisfaction at the
consummation of the merger, provided that such conditions are
then capable of being satisfied at such time), either LSI or
Agere may elect to extend the termination date, by written
notice to the other prior to or on May 15, 2007, until
August 31, 2007, and provided further, however, that
neither LSI nor Agere may terminate the merger agreement on this
basis if that party has materially breached its obligations
under the merger agreement if such breach has been the proximate
cause of, or resulted in, the failure of the conditions to the
consummation of the merger to be satisfied;
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by LSI or Agere, if the issuance of shares of LSI common stock
to Agere stockholders in connection with the merger fails to
receive the requisite affirmative vote at the LSI
stockholders meeting;
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by LSI or Agere, if the merger agreement fails to receive the
requisite affirmative vote for adoption at the Agere
stockholders meeting;
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by LSI, upon a breach of, or failure to perform, any
representation, warranty, covenant or agreement on the part of
Agere in the merger agreement such that the condition to
completion of the merger regarding Ageres representations
and warranties or covenants would not be met; however, if the
breach or inaccuracy is curable by Agere through the exercise of
reasonable efforts, then LSI may not terminate the merger
agreement for 45 days after delivery of written notice from
LSI to Agere of the breach, and if the breach is cured during
those 45 days, or if LSI is otherwise in material breach of
the merger agreement, LSI may not exercise this termination
right;
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by Agere, upon a breach of, or failure to perform, any
representation, warranty, covenant or agreement on the part of
LSI in the merger agreement such that the condition to
completion of the merger regarding LSIs representations
and warranties or covenants would not be met; however, if the
breach or inaccuracy is curable by LSI through the exercise of
reasonable efforts, then Agere may not terminate the merger
agreement for 45 days after delivery of written notice from
Agere to LSI of the breach, and if the breach is
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108
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cured during those 45 days, or if Agere is otherwise in
material breach of the merger agreement, Agere may not exercise
this termination right; or
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by either LSI or Agere if a triggering event shall
have occurred with respect to the other party. A
triggering event shall be deemed to have occurred
with respect to a party if:
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such party shall have failed to duly call, give notice of,
convene and hold its stockholder meeting or failed to take a
vote on its voting proposal at its stockholder meeting in
accordance with the requirements of the merger agreement;
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the board of directors of such party or any committee thereof
shall have for any reason effected a recommendation change;
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such party shall have failed to include its board recommendation
in this joint proxy statement/prospectus;
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the board of directors of either party or any committee thereof
shall have for any reason approved, or recommended that their
stockholders approve, any third party acquisition proposal or
acquisition transaction other than the transactions contemplated
by the merger agreement (whether or not such proposal
constitutes a superior proposal);
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except for a confidentiality agreement expressly permitted by
the merger agreement, a party shall have entered into a letter
of intent, memorandum of understanding or other contract
accepting any third party acquisition proposal or acquisition
transaction (whether or not such proposal constitutes a superior
proposal); or
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an acquisition proposal (whether or not such proposal
constitutes a superior proposal) shall have been made in respect
of a party by a person unaffiliated with the other party hereto
and, within ten (10) business days after notice of such
acquisition proposal is first published, sent or given to such
partys stockholders, and, if requested by the other party
hereto, such party shall not have sent to its stockholders a
statement unconditionally reaffirming the recommendation of its
board of directors with respect to the merger and
unconditionally recommending that its stockholders reject such
acquisition proposal and not tender any shares of its capital
stock into such acquisition proposal if made in the form of a
tender or exchange offer.
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Termination
Fees and Expenses
Under the terms of the merger agreement, Agere must pay a fee of
$120,000,000 to LSI due to termination of the merger agreement:
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by either party if (1) the requisite approval of the Agere
stockholders is not obtained at the stockholder meeting where
the vote to adopt the merger agreement was held (or after such
meeting was held, and the vote was not obtained, and thereafter
Agere terminates for another reason), (2) prior to the
Agere stockholder meeting, an acquisition proposal in respect of
Agere shall have been made to Agere or otherwise made publicly
known, and (3) within twelve (12) months following
termination of the merger agreement, Agere either enters into a
letter of intent with respect to an acquisition transaction
(regardless of whether or not it is the transaction described in
clause (2)) or consummates such a transaction;
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by LSI, following a knowing and intentional breach by Agere of
its representations and warranties, which breach is intended to
facilitate, assist or otherwise benefit a third party
acquisition proposal or the person making such a proposal, if
(1) prior to such breach an acquisition proposal in respect
of Agere shall have been made to Agere or otherwise made
publicly known, and (2) within twelve (12) months
following termination of the merger agreement, Agere either
enters into a letter of intent with respect to an acquisition
transaction (regardless of whether or not it is the transaction
described in clause (1)), or consummates such a transaction;
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by LSI, following the occurrence of a triggering
event (as described above) with respect to Agere, provided
that LSIs failure to terminate the merger agreement
promptly following the triggering event shall not
prejudice LSIs ability to terminate the merger agreement
due to the occurrence of a triggering event and
collect the termination fee.
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109
Under the terms of the merger agreement, LSI must pay a fee of
$120,000,000 to Agere due to termination of the merger agreement:
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by either party if (1) the requisite approval of the LSI
stockholders is not obtained at the stockholder meeting where
the vote to approve the issuance of shares of LSI common stock
in connection with the merger was held (or after such meeting
was held, and the vote was not obtained, and thereafter LSI
terminates for another reason), (2) prior to the LSI
stockholder meeting, an acquisition proposal in respect of LSI
shall have been made to LSI or otherwise made publicly known,
and (3) within twelve (12) months following
termination of the merger agreement, LSI either enters into a
letter of intent with respect to an acquisition transaction
(regardless of whether or not it is the transaction described in
clause (2)) or consummates such a transaction;
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by Agere, following a knowing and intentional breach by LSI of
its representations and warranties, which breach is intended to
facilitate, assist or otherwise benefit a third party
acquisition proposal or the person making such a proposal, if
(1) prior to such breach an acquisition proposal in respect
of LSI shall have been made to LSI or otherwise made publicly
known, and (2) within twelve (12) months following
termination of the merger agreement, LSI either enters into a
letter of intent with respect to an acquisition transaction
(regardless of whether or not it is the transaction described in
clause (1)), or consummates such a transaction;
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by Agere, following the occurrence of a triggering
event (as described above) with respect to LSI, provided
that Ageres failure to terminate the merger agreement
promptly following the triggering event shall not
prejudice Ageres ability to terminate the merger agreement
due to the occurrence of a triggering event and
collect the termination fee.
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Expenses
Generally
Except as provided above, all fees and expenses incurred in
connection with the merger will be paid by the party incurring
the fees or expenses, whether or not the merger is completed,
including expenses incurred in connection with filing, printing
and mailing this joint proxy statement/prospectus, the
registration statement, and filings by LSI and Agere under the
HSR Act or any similar filing requirement of any governmental
entity applicable to the merger.
Material
United States Federal Income Tax Consequences of the
Merger
The following summary discusses the material United States
federal income tax consequences of the merger to Agere
stockholders. The following discussion is based on existing
provisions of the Internal Revenue Code, existing treasury
regulations and current administrative rulings and court
decisions, all of which are subject to change, possibly with
retroactive effect, and to differing interpretations.
This summary does not discuss all United States federal income
tax considerations that may be relevant to a particular
stockholder in light of his or her personal circumstances or to
stockholders subject to special treatment under the federal
income tax laws, including:
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dealers in securities or foreign currencies;
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stockholders who are subject to the alternative minimum tax
provisions of the Internal Revenue Code;
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tax-exempt organizations;
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non-United
States persons or entities;
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financial institutions or insurance companies;
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stockholders who acquired Agere common stock in connection with
stock option or stock purchase plans or in other compensatory
transactions; or
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stockholders who hold Agere common stock as part of an
integrated investment, including a straddle,
comprised of shares of Agere common stock and one or more other
positions.
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110
In addition, this summary does not discuss the tax consequences
of the merger under foreign, state or local tax law. This
discussion assumes that Agere stockholders hold their shares of
Agere common stock as capital assets within the meaning of
Section 1221 of the Internal Revenue Code (generally, as
property held as an investment).
Accordingly, Agere stockholders should consult their tax
advisors as to the specific tax consequences of the merger,
including any applicable federal, state, local and foreign tax
consequences.
Based on factual representations contained in letters provided
by LSI and Agere, and on certain customary factual assumptions,
all of which must continue to be true and accurate as of the
effective time of the merger, each of Wilson Sonsini, counsel to
LSI, and Skadden, Arps, counsel to Agere, has delivered its
opinion (attached as exhibits 8.1 and 8.2, respectively, to
the registration statement on
Form S-4,
of which this joint proxy statement/prospectus forms a part)
that the merger will qualify as a reorganization for
United States federal income tax purposes within the meaning of
Section 368(a) of the Internal Revenue Code and that the
following material United States federal income tax consequences
will result from such qualification:
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Agere stockholders will not recognize any gain or loss upon the
receipt of LSI common stock in exchange for Agere common stock
in connection with the merger, except for cash received instead
of a fractional share of LSI common stock;
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the aggregate tax basis of the LSI common stock received by an
Agere stockholder in connection with the merger, including any
fractional share of LSI common stock not actually received, will
be equal to the aggregate tax basis of the Agere common stock
surrendered in exchange for LSI common stock;
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the holding period of the LSI common stock received by a Agere
stockholder in connection with the merger will include the
holding period of the Agere common stock surrendered in
connection with the merger;
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cash payments received by an Agere stockholder for a fractional
share of LSI common stock will be treated as if such fractional
share had been issued in connection with the merger and then
redeemed by LSI, and Agere stockholders will recognize capital
gain or loss with respect to such cash payment, measured by the
difference, if any, between the amount of cash received and the
tax basis in such fractional share; and
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LSI, Atlas Acquisition Corp. and Agere will not recognize gain
or loss as a result of the merger.
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The completion of the merger is conditioned upon the delivery of
an opinion by each of Wilson Sonsini and Skadden, Arps that the
merger will constitute a reorganization for United States
federal income tax purposes within the meaning of
Section 368(a) of the Internal Revenue Code. These opinions
will be based on updated representation letters to be provided
by LSI and Agere at the time of the completion of the merger,
and on customary factual assumptions. Although the merger
agreement allows LSI and Agere to waive this condition to the
completion of the merger, neither LSI nor Agere currently
anticipates doing so. If either LSI or Agere does waive this
condition, stockholders of LSI and Agere will be informed of
this decision and asked to vote in connection with the merger,
taking this waiver into consideration.
Neither LSI nor Agere will request a ruling from the Internal
Revenue Service regarding the tax consequences of the merger to
Agere stockholders. The opinions of counsel do not bind the
Internal Revenue Service or courts of law and thus do not
prevent the Internal Revenue Service from asserting a contrary
position, or a court from upholding any such assertion. In
addition, if any of the representations or assumptions upon
which the opinions are based are inconsistent with the actual
facts, the tax consequences of the merger and the validity of
the opinions could be adversely affected.
Certain stockholders may be subject to information reporting
with respect to the cash received in lieu of a fractional share
of LSI common stock. U.S. holders who are subject to
information reporting and who do not provide appropriate
information when requested may also be subject to backup
withholding. Any amount withheld under such rules is not an
additional tax and may be refunded or credited against such
U.S. holders federal income tax liability, provided
that the required information is properly furnished in a timely
manner to the Internal Revenue Service.
111
Accounting
Treatment of the Merger
In accordance with United States generally accepted accounting
principles, LSI will account for the merger using the purchase
method of accounting. Under this method of accounting, LSI will
record the market value (based on an average of the closing
prices of LSI common stock for a range of trading days from two
days before and after December 4, 2006, the announcement
date) of its common stock issued in connection with the merger,
the fair value of the options to purchase shares of Agere common
stock assumed in connection with the merger and the amount of
direct transaction costs associated with the merger as the
estimated purchase price of acquiring Agere. LSI will allocate
the estimated purchase price to the net tangible and amortizable
intangible assets acquired (including developed and core
technology and patents, customer contracts and lists, and
distribution agreements), intangible assets with indefinite
lives and in-process research and development, based on their
respective fair values at the date of the completion of the
merger. Any excess of the estimated purchase price over those
fair values will be accounted for as goodwill.
Regulatory
Filings and Approvals Required to Complete the Merger
The merger is subject to review by the United States Federal
Trade Commission and the Antitrust Division of the United States
Department of Justice under the
Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended. Under this
statute, LSI and Agere are required to make pre-merger
notification filings and await the expiration or early
termination of the statutory waiting period prior to completing
the merger. Each of LSI and Agere has completed its initial
Hart-Scott-Rodino
filing and the applicable waiting period has expired. The merger
is also subject to review by foreign governmental authorities in
Germany and China, and requires pre-merger notification and the
observance of an applicable waiting period in those countries.
LSI and Agere filed such foreign pre-merger notifications in
each of China and Germany on January 19, 2007; however,
neither the 30 business day waiting period applicable in
China nor the 30 calendar day waiting period applicable in
Germany have expired as of the date of this joint proxy
statement/prospectus.
There can be no assurance that the governmental reviewing
authorities will permit the applicable statutory waiting periods
to expire, terminate the applicable statutory waiting periods or
clear the merger at all or without restrictions or conditions
that would have a material adverse effect on the combined
company if the merger is completed. These restrictions and
conditions could include, for example, a complete or partial
license, divestiture, spin-off or the holding separate of assets
or businesses. Under the terms of the merger agreement, neither
LSI nor Agere is required to comply with any restriction or
condition that would be reasonably expected to have a material
adverse effect on the business, operations, financial condition
or results of operations of LSI and its subsidiaries, on a
combined basis with Agere and its subsidiaries, as a result of
the merger or would be reasonably likely to materially adversely
affect LSI and its subsidiaries, on a combined basis with Agere
and its subsidiaries. Either LSI or Agere may refuse to complete
the merger if any such restrictions or conditions are required
by governmental authorities as a condition to approving the
merger. No additional stockholder approval is expected to be
required for any decision by LSI or Agere, after the special
meeting of LSIs stockholders and the annual meeting of
Ageres stockholders, to agree to any terms and conditions
necessary to resolve any regulatory objections to the merger.
In addition, during or after the statutory waiting periods and
clearance of the merger, and even after completion of the
merger, either the Antitrust Division of the United States
Department of Justice, the Federal Trade Commission, or other
governmental authorities could challenge or seek to block the
merger under the antitrust laws, as it deems necessary or
desirable in the public interest. Other competition agencies
with jurisdiction over the merger could also initiate action to
challenge or block the merger. In addition, in some
jurisdictions, a competitor, customer or other third party could
initiate a private action under the antitrust laws challenging
or seeking to enjoin the merger, before or after it is
completed. LSI and Agere cannot be sure that a challenge to the
merger will not be made or that, if a challenge is made, LSI and
Agere will prevail.
Listing
of Shares of LSI Common Stock Issued in the Merger on the New
York Stock Exchange
LSI will use all reasonable efforts to cause the shares of LSI
common stock issued in connection with the merger to be
authorized for listing on the New York Stock Exchange before the
completion of the merger, subject to official notice of issuance.
112
Delisting
and Deregistration of Agere Common Stock After the
Merger
When the merger is completed, Agere common stock will be
delisted from the New York Stock Exchange and deregistered under
the Securities Exchange Act of 1934.
Restrictions
on Sales of Shares of LSI Common Stock Received in the
Merger
The shares of LSI common stock to be issued in connection with
the merger will be registered under the Securities Act of 1933
and will be freely transferable, except for shares of LSI common
stock issued to any person who is deemed to be an
affiliate of Agere prior to the merger. Persons who
may be deemed to be affiliates of Agere prior to the
merger include individuals or entities that control, are
controlled by, or are under common control of Agere prior to the
merger, and may include officers and directors, as well as
principal stockholders of Agere prior to the merger. Affiliates
of Agere will be notified separately of their affiliate status.
Persons who may be deemed to be affiliates of Agere prior to the
merger may not sell any of the shares of LSI common stock
received by them in connection with the merger except pursuant
to:
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an effective registration statement under the Securities Act of
1933 covering the resale of those shares;
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an exemption under paragraph (d) of Rule 145
under the Securities Act of 1933; or
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any other applicable exemption under the Securities Act of 1933.
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LSIs registration statement on
Form S-4,
of which this joint proxy statement/prospectus forms a part,
does not cover the resale of shares of LSI common stock to be
received in connection with the merger by persons who may be
deemed to be affiliates of Agere prior to the merger.
No
Appraisal Rights
Neither LSI stockholders nor Agere stockholders are entitled to
dissenters rights of appraisal for their shares under the
Delaware General Corporation Law in connection with the merger.
113
UNAUDITED
PRO FORMA COMBINED CONDENSED CONSOLIDATED
FINANCIAL STATEMENTS
The following unaudited pro forma combined condensed financial
statements are based on the historical financial statements of
LSI and Agere after giving effect to the acquisition of Agere by
LSI using the purchase method of accounting and applying the
assumptions and adjustments described in the accompanying notes.
The unaudited pro forma combined condensed statements of
operations for the nine months ended October 1, 2006 and
the fiscal year ended December 31, 2005 are presented as if
the merger had occurred on January 1, 2005. The unaudited
pro forma combined condensed balance sheet is presented as if
the merger had occurred on October 1, 2006. You should read
this information in conjunction with the:
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accompanying notes to the Unaudited Pro Forma Combined Condensed
Financial Statements;
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separate unaudited historical financial statements of LSI as of
and for the three-and nine-month periods ended October 1,
2006, included in the LSI quarterly report on
Form 10-Q
for the nine months ended October 1, 2006, which is
incorporated by reference into this joint proxy
statement/prospectus;
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separate historical financial statements of LSI as of and for
the fiscal year ended December 31, 2005, included in the
LSI annual report on
Form 10-K
for the fiscal year ended December 31, 2005, which is
incorporated by reference into this joint proxy
statement/prospectus; and
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separate historical financial statements of Agere as of and for
the fiscal years ended September 30, 2006 and
September 30, 2005, included in the Agere annual report on
Form 10-K
for the fiscal year ended September 30, 2006, which is
incorporated by reference into this joint proxy
statement/prospectus.
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The pro forma information presented is for illustrative purposes
only and is not necessarily indicative of the financial position
or results of operations that would have been realized if the
merger had been completed on the dates indicated, nor is it
indicative of future operating results or financial position.
The pro forma adjustments are based upon available information
and certain assumptions that LSI believes are reasonable.
The unaudited pro forma combined condensed financial statements
do not include the effects of:
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any gross margin improvement in future quarters due to scale and
leveraging of LSI and Agere manufacturing platforms;
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any operating efficiencies or cost savings; or
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cash expenditures for restructuring and integration activities,
and retention bonuses, which cannot be reasonably estimated at
this time as planning for these activities is in the early
stages and their impact cannot be fully determined at this time
(See Note 3).
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Pursuant to the purchase method of accounting, the total
estimated purchase price, calculated as described in Note 1
to these unaudited pro forma combined condensed financial
statements, has been preliminarily allocated to assets acquired
and liabilities assumed based on their respective fair values.
LSIs management, with the assistance of a third party
valuation firm, has determined the preliminary fair value of the
intangible assets and tangible assets acquired and liabilities
assumed at the pro forma balance sheet date. The fair value of
unearned stock compensation was based on a price of $9.905 per
LSI share. Any differences between the fair value of the
consideration issued and the fair value of the assets acquired
and liabilities assumed will be recorded as goodwill. Since
these unaudited pro forma combined condensed financial
statements have been prepared based on preliminary estimates of
fair values attributable to the merger, the actual amounts
recorded for the merger may differ materially from the
information presented. These allocations are subject to change
pending further review of the fair value of the assets acquired
and liabilities assumed as well as the impact of potential
restructuring activities and actual transaction costs.
Additionally, the fair value of assets acquired and liabilities
assumed may be materially impacted by the results of
Ageres operations up to the closing date of the merger.
Since the final valuation associated with unearned compensation
related to stock options and restricted stock units held by
Agere employees will be calculated as of the closing date of the
merger, the amount allocated to this item may change materially
depending on the price of LSI common stock or the number of
Agere unvested options
114
and restricted stock units outstanding as of the closing date.
Based on the fair value of LSI common stock beginning two days
before and ending two days after the announcement date of the
merger of $9.905 per share, the amount of the compensation
charge we would record associated with current and former Agere
employees would be approximately $57.2 million in the first
year after the closing of the merger with the remaining
$92.1 million recorded over the second and third years
after the closing of the merger.
LSI and Agere have different fiscal year ends which end on
December 31 and September 30, respectively.
The unaudited pro forma combined condensed statement of
operations for the nine months ended October 1, 2006 has
been derived from:
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the unaudited historical condensed consolidated statement of
operations of LSI for the nine months ended October 1,
2006; and
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the unaudited historical condensed consolidated statement of
operations of Agere for the nine months ended June 30, 2006.
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The unaudited pro forma combined condensed statement of
operations for the year ended December 31, 2005 has been
derived from:
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the audited historical consolidated statement of operations of
LSI for the year ended December 31, 2005; and
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the audited historical condensed consolidated statement of
operations of Agere for the year ended September 30, 2005.
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The unaudited pro forma combined condensed balance sheet as of
October 1, 2006 has been derived from:
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the unaudited historical condensed consolidated balance sheet of
LSI as of October 1, 2006; and
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the audited historical consolidated balance sheet of Agere as of
September 30, 2006.
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115
LSI LOGIC
CORPORATION
Unaudited
Pro Forma Combined Condensed Statements of Operations
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Historical
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LSI
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Agere
|
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Nine Months Ended
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October 1,
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June 30,
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Pro Forma
|
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Pro Forma
|
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2006
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2006
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Adjustments
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Combined
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(In thousands, except per share amounts)
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Revenues
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|
$
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1,458,497
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|
$
|
1,181,552
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|
|
$
|
|
|
|
$
|
2,640,049
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|
Cost of revenues
|
|
|
830,267
|
|
|
|
606,012
|
|
|
|
(1,175
|
)(a)
|
|
|
1,435,104
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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Gross profit
|
|
|
628,230
|
|
|
|
575,540
|
|
|
|
1,175
|
|
|
|
1,204,945
|
|
Research and development
|
|
|
305,169
|
|
|
|
343,711
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|
|
|
(5,238
|
)(b)
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|
|
643,642
|
|
Selling, general and administrative
|
|
|
193,790
|
|
|
|
176,993
|
|
|
|
(2,733
|
)(c)
|
|
|
368,050
|
|
Restructuring of operations and
other non-recurring items, net
|
|
|
(13,384
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)
|
|
|
59,401
|
|
|
|
(623
|
)(d)
|
|
|
45,394
|
|
Amortization of intangibles
|
|
|
28,453
|
|
|
|
3,831
|
|
|
|
103,914
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(e)
|
|
|
136,198
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income/(loss) from operations
|
|
|
114,202
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|
|
|
(8,396
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)
|
|
|
(94,145)
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|
|
|
11,661
|
|
Interest expense
|
|
|
(19,314
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)
|
|
|
(19,272
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)
|
|
|
|
|
|
|
(38,586
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)
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Interest income and other, net
|
|
|
32,912
|
|
|
|
17,647
|
|
|
|
|
|
|
|
50,559
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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Income/(loss) before income taxes
and minority interest
|
|
|
127,800
|
|
|
|
(10,021
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)
|
|
|
(94,145)
|
|
|
|
23,634
|
|
Provision/(benefit) for income
taxes
|
|
|
17,175
|
|
|
|
(13,763
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)
|
|
|
|
|
|
|
3,412
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income/(loss) before minority
interest
|
|
|
110,625
|
|
|
|
3,742
|
|
|
|
(94,145)
|
|
|
|
20,222
|
|
Minority interest in net income
(loss) of subsidiaries
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income/(loss) from continuing
operations
|
|
$
|
110,625
|
|
|
$
|
3,742
|
|
|
$
|
(94,145)
|
|
|
$
|
20,222
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic earnings per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
$
|
0.28
|
|
|
|
|
|
|
|
|
|
|
$
|
0.03
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted earnings per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
$
|
0.27
|
|
|
|
|
|
|
|
|
|
|
$
|
0.03
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares used in computing per share
amounts:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
397,408
|
|
|
|
|
|
|
|
363,186
|
(f)
|
|
|
760,594
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted
|
|
|
403,779
|
|
|
|
|
|
|
|
373,973
|
(f)
|
|
|
777,752
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
116
LSI LOGIC
CORPORATION
Unaudited
Pro Forma Combined Condensed Statements of Operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Historical
|
|
|
|
|
|
|
|
|
|
LSI
|
|
|
Agere
|
|
|
|
|
|
|
|
|
|
Year Ended
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
September 30,
|
|
|
Pro Forma
|
|
|
Pro Forma
|
|
|
|
2005
|
|
|
2005
|
|
|
Adjustments
|
|
|
Combined
|
|
|
|
(In thousands, except per share amounts)
|
|
|
Revenues
|
|
$
|
1,919,250
|
|
|
$
|
1,676,363
|
|
|
$
|
|
|
|
$
|
3,595,613
|
|
Cost of revenues
|
|
|
1,087,558
|
|
|
|
1,012,696
|
|
|
|
80,535
|
(a)
|
|
|
2,180,789
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
831,692
|
|
|
|
663,667
|
|
|
|
(80,535)
|
|
|
|
1,414,824
|
|
Research and development
|
|
|
399,685
|
|
|
|
461,356
|
|
|
|
16,097
|
(b)
|
|
|
877,138
|
|
Selling, general and administrative
|
|
|
238,265
|
|
|
|
233,879
|
|
|
|
23,939
|
(c)
|
|
|
496,083
|
|
Acquired in-process research and
development
|
|
|
|
|
|
|
55,200
|
|
|
|
|
|
|
|
55,200
|
|
Restructuring of operations and
other non-recurring items, net
|
|
|
119,052
|
|
|
|
14,912
|
|
|
|
(1,061
|
)(d)
|
|
|
132,903
|
|
Amortization of intangibles
|
|
|
62,484
|
|
|
|
6,347
|
|
|
|
137,313
|
(e)
|
|
|
206,144
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income/(loss) from operations
|
|
|
12,206
|
|
|
|
(108,027
|
)
|
|
|
(256,823)
|
|
|
|
(352,644
|
)
|
Interest expense
|
|
|
(25,283
|
)
|
|
|
(28,952
|
)
|
|
|
|
|
|
|
(54,235
|
)
|
Interest income and other, net
|
|
|
34,000
|
|
|
|
6,816
|
|
|
|
|
|
|
|
40,816
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income/(loss) before income taxes
and minority interest
|
|
|
20,923
|
|
|
|
(130,163
|
)
|
|
$
|
(256,823)
|
|
|
|
(366,063
|
)
|
Provision for income taxes
|
|
|
26,540
|
|
|
|
(122,472
|
)
|
|
|
|
|
|
|
(95,932
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss before minority interest
|
|
|
(5,617
|
)
|
|
|
(7,691
|
)
|
|
|
(256,823)
|
|
|
|
(270,131
|
)
|
Minority interest in net income of
subsidiaries
|
|
|
6
|
|
|
|
|
|
|
|
|
|
|
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations
|
|
$
|
(5,623
|
)
|
|
$
|
(7,691
|
)
|
|
$
|
(256,823)
|
|
|
$
|
(270,137
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic earnings per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations
|
|
$
|
(0.01
|
)
|
|
|
|
|
|
|
|
|
|
$
|
(0.36
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted earnings per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from continuing operations
|
|
$
|
(0.01
|
)
|
|
|
|
|
|
|
|
|
|
$
|
(0.36
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares used in computing per share
amounts:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
390,135
|
|
|
|
|
|
|
|
363,186
|
(f)
|
|
|
753,321
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted
|
|
|
390,135
|
|
|
|
|
|
|
|
363,186
|
(f)
|
|
|
753,321
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
117
LSI LOGIC
CORPORATION
Unaudited
Pro Forma Combined Condensed Balance Sheets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Historical
|
|
|
|
|
|
|
|
|
|
LSI
|
|
|
Agere
|
|
|
|
|
|
|
|
|
|
October 1,
|
|
|
September 30,
|
|
|
Pro Forma
|
|
|
Pro Forma
|
|
|
|
2006
|
|
|
2006
|
|
|
Adjustments
|
|
|
Combined
|
|
|
|
(In thousands)
|
|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash, cash equivalents and
short-term investments
|
|
$
|
1,268,133
|
|
|
$
|
406,479
|
|
|
$
|
|
|
|
$
|
1,674,612
|
(1)
|
Accounts receivable, net
|
|
|
320,251
|
|
|
|
242,806
|
|
|
|
|
|
|
|
563,057
|
|
Inventories
|
|
|
183,731
|
|
|
|
116,071
|
|
|
|
74,429
|
(g)
|
|
|
374,231
|
|
Prepaid expenses and other current
assets
|
|
|
64,036
|
|
|
|
32,511
|
|
|
|
|
|
|
|
96,547
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
1,836,151
|
|
|
|
797,867
|
|
|
|
74,429
|
|
|
|
2,708,447
|
|
Property and equipment, net
|
|
|
83,259
|
|
|
|
402,262
|
|
|
|
|
|
|
|
485,521
|
|
Other intangible assets, net
|
|
|
14,197
|
|
|
|
9,644
|
|
|
|
1,426,956
|
(h)
|
|
|
1,450,797
|
|
Goodwill
|
|
|
927,169
|
|
|
|
196,370
|
|
|
|
1,314,562
|
(h)
|
|
|
2,438,101
|
|
Other assets
|
|
|
118,134
|
|
|
|
90,737
|
|
|
|
617,350
|
(i)
|
|
|
826,221
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
2,978,910
|
|
|
$
|
1,496,880
|
|
|
$
|
3,433,297
|
|
|
$
|
7,909,087
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities and
Stockholders Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current liabilities
|
|
$
|
470,190
|
|
|
$
|
374,642
|
|
|
$
|
40,309
|
(j)
|
|
$
|
885,141
|
|
Current portion of long-term
obligations
|
|
|
272,038
|
|
|
|
53
|
|
|
|
|
|
|
|
272,091
|
(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
742,228
|
|
|
|
374,695
|
|
|
|
40,309
|
|
|
|
1,157,232
|
|
Long-term obligations
|
|
|
432,470
|
|
|
|
820,380
|
|
|
|
434,600
|
(k)
|
|
|
1,687,450
|
|
Minority interest in subsidiaries
|
|
|
234
|
|
|
|
|
|
|
|
|
|
|
|
234
|
|
Stockholders equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock
|
|
|
3,070,158
|
|
|
|
7,375,464
|
|
|
|
(3,691,671
|
)(l)
|
|
|
6,753,951
|
|
Accumulated deficit
|
|
|
(1,279,319
|
)
|
|
|
(6,768,458
|
)
|
|
|
6,344,858
|
(l)
|
|
|
(1,702,919
|
)
|
Accumulated other comprehensive
income
|
|
|
13,139
|
|
|
|
(305,201
|
)
|
|
|
305,201
|
(l)
|
|
|
13,139
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total stockholders equity
|
|
|
1,803,978
|
|
|
|
301,805
|
|
|
|
2,958,388
|
|
|
|
5,064,171
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and
stockholders equity
|
|
$
|
2,978,910
|
|
|
$
|
1,496,880
|
|
|
$
|
3,433,297
|
|
|
$
|
7,909,087
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The balances do not include LSIs full repayment of
$271.8 million of its convertible subordinated notes on
November 1, 2006. |
118
On December 3, 2006, LSI and Agere entered into a
definitive merger agreement under which Agere will become a
wholly-owned subsidiary of LSI in a transaction to be accounted
for using the purchase method of accounting. The total estimated
purchase price of approximately $3.9 billion is comprised
of LSI common stock and assumed stock options and restricted
stock units.
The unaudited pro forma combined condensed balance sheet is
presented to give effect to the merger as if the transaction had
been consummated on October 1, 2006. The statements of
operations are presented as if the transaction had been
consummated on January 1, 2005. The unaudited pro forma
combined condensed balance sheet provides for the issuance of
approximately 363 million shares of LSI common stock, based
upon a fixed exchange ratio of 2.16 shares of LSI common stock
for each outstanding share of Agere common stock as of
December 8, 2006. The actual number of shares of LSI common
stock to be issued will be determined based on the actual number
of shares of Agere common stock outstanding at the closing date
of the merger. Under the purchase method of accounting, the fair
value of the total consideration was determined using an average
of LSIs closing share prices beginning two days before and
ending two days after December 4, 2006, the date by which
the acquisition was agreed to and announced or $9.905 per
share. Based on a fixed exchange ratio of 2.16 shares of LSI
common stock for each outstanding share of Agere common stock
and the total number of Agere options and restricted stock units
outstanding at December 8, 2006, LSI would assume Agere
options and restricted stock units covering an equivalent of
approximately 64 million shares of LSI common stock. The
actual number of Agere equity-based awards to be assumed will be
determined based on the actual number of Agere equity-based
awards outstanding as of the closing date.
The fair value of options was estimated using a reduced form
calibrated binomial lattice model and a share price of
$9.905 per share, which represents the average closing
price of LSI common shares for two trading days before to two
trading days after December 4, 2006, the date by which the
merger was agreed to and announced.
The total estimated purchase price for the merger is as follows
(in thousands):
|
|
|
|
|
Estimated fair value of LSI common
shares to be issued
|
|
$
|
3,597,359
|
|
Estimated fair value of options,
stock appreciation rights and restricted stock units assumed
|
|
|
235,765
|
|
Estimated direct transaction costs
|
|
|
30,000
|
|
|
|
|
|
|
Total estimated purchase price
|
|
$
|
3,863,124
|
|
|
|
|
|
|
Preliminary
Estimated Purchase Price Allocation
The preliminary allocation of the purchase price to Ageres
tangible and identifiable intangible assets acquired and
liabilities assumed was based on their estimated fair values.
The fair value of unearned stock compensation was based on
market prices as of December 4, 2006. The valuation of
these tangible and identifiable intangible assets and
liabilities is subject to further management review and may
change materially between the preliminary valuation date and the
closing date of the merger. Further adjustments to these
estimates may be included in the final allocation of the
purchase price of Agere, if the adjustment is determined within
the purchase price allocation period (up to twelve months from
the closing date). The excess of the purchase price over the
tangible and identifiable intangible assets acquired and
liabilities assumed has been allocated to goodwill. The total
purchase price of
119
approximately $3.9 billion does not include the effect of
restructuring activities because it cannot be estimated at this
time. The estimated purchase price has been allocated as follows
(in thousands):
|
|
|
|
|
|
|
As of
|
|
|
|
October 1,
|
|
|
|
2006
|
|
|
Tangible net assets acquired
|
|
$
|
342,661
|
|
Identifiable intangible assets
|
|
|
1,436,600
|
|
In-process research and development
|
|
|
423,600
|
|
Unearned stock compensation
|
|
|
149,331
|
|
Goodwill
|
|
|
1,510,932
|
|
|
|
|
|
|
Total estimated purchase price
|
|
$
|
3,863,124
|
|
|
|
|
|
|
Tangible
assets acquired and liabilities assumed
LSI has estimated the fair value of tangible assets acquired and
liabilities assumed. Some of these estimates are subject to
change; particularly those estimates relating to deferred taxes,
property plant and equipment and
merger-related
restructuring costs. These estimates are based on a preliminary
valuation as of October 1, 2006 and are subject to further
review by management, which may result in material adjustments.
Furthermore, the fair values of the assets acquired and
liabilities assumed may be affected and materially changed by
the results of Ageres operations and changes in market
values up to the closing date of the merger. In addition, the
unaudited pro forma combined condensed financial statements do
not reflect adjustments to liabilities that will result from
expected restructuring activities after the merger closes, as
planning for these activities is still in the early stages and
therefore, the resulting costs cannot be fully estimated at
present.
Identifiable
intangible assets
LSI has estimated the fair value of the acquired identifiable
intangible assets, which are subject to amortization, using the
income approach. These estimates are based on a preliminary
valuation and are subject to further review by management and
adjustments (which may be material), which may reflect, among
other things, the effect of Ageres operations between
October 1, 2006 and the closing date. The following table
sets forth the components of these intangible assets and their
estimated useful lives as of October 1, 2006 (dollars in
thousands):
|
|
|
|
|
|
|
|
|
|
|
Preliminary
|
|
|
Useful Life
|
|
|
Fair Value
|
|
|
(in Years)
|
|
Existing technology
|
|
$
|
455,000
|
|
|
|
5
|
|
Customer relationships
|
|
|
379,600
|
|
|
|
10
|
|
Patent licensing
|
|
|
550,700
|
|
|
|
15
|
|
Trade names
|
|
|
51,300
|
|
|
|
5
|
|
|
|
|
|
|
|
|
|
|
Total acquired identifiable
intangible assets
|
|
$
|
1,436,600
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
In-process
research and development
In-process research and development, or IPRD, represents
Ageres research and development projects that had not
reached technological feasibility and had no alternative future
use when acquired. Using the income approach to value the IPRD,
LSI determined that $423,600 of the purchase price represents
purchased in-process technology. Due to its non-recurring
nature, the IPRD expense has been excluded from the unaudited
pro forma combined condensed statements of operations. The IPRD
costs will be expensed in LSIs consolidated financial
statements in the period in which the transaction closes.
120
The following pro forma adjustments are included in the
unaudited pro forma combined condensed statements of operations
and the unaudited pro forma combined condensed balance sheet:
(a) Adjustments to cost of revenues (in thousands):
|
|
|
|
|
|
|
|
|
|
|
Nine Months
|
|
|
|
|
|
|
Ended
|
|
|
Year Ended
|
|
|
|
October 1,
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
To record a reduction in pension
and post retirement expense as a result of the elimination of
existing amortization following the merger
|
|
$
|
(2,004
|
)
|
|
$
|
(2,927
|
)
|
To reverse share based
compensation expense recorded by Agere under
SFAS 123-R
|
|
|
(4,218
|
)
|
|
|
|
|
To record the increased basis of
inventory to fair value
|
|
|
|
|
|
|
74,429
|
|
To record amortization of unearned
compensation related to Agere options and restricted stock units
assumed
|
|
|
5,047
|
|
|
|
9,033
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
(1,175
|
)
|
|
$
|
80,535
|
|
|
|
|
|
|
|
|
|
|
(b) Adjustments to research and development (in thousands):
|
|
|
|
|
|
|
|
|
|
|
Nine Months
|
|
|
|
|
|
|
Ended
|
|
|
Year Ended
|
|
|
|
October 1,
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
To record a reduction in pension
and post retirement expense as a result of the elimination of
existing amortization following the merger
|
|
$
|
(6,669
|
)
|
|
$
|
(4,980
|
)
|
To eliminate share based
compensation expense recorded by Agere under
SFAS 123-R
|
|
|
(10,346
|
)
|
|
|
|
|
To record amortization of unearned
compensation related to Agere options and restricted stock units
assumed
|
|
|
11,777
|
|
|
|
21,077
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
(5,238
|
)
|
|
$
|
16,097
|
|
|
|
|
|
|
|
|
|
|
(c) Adjustments to expenses for selling, general and
administrative (in thousands):
|
|
|
|
|
|
|
|
|
|
|
Nine Months
|
|
|
|
|
|
|
Ended
|
|
|
Year Ended
|
|
|
|
October 1,
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
To record a reduction in pension
and post retirement expense as a result of the elimination of
existing amortization following the merger
|
|
$
|
(4,113
|
)
|
|
$
|
(3,160
|
)
|
|
|
|
|
|
|
|
|
|
To eliminate share based
compensation expense recorded by Agere under
SFAS 123-R
|
|
|
(13,762
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
To record amortization of unearned
compensation related to Agere options and restricted stock units
assumed
|
|
|
15,142
|
|
|
|
27,099
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
(2,733
|
)
|
|
$
|
23,939
|
|
|
|
|
|
|
|
|
|
|
121
(d) Adjustments to restructuring expense (in thousands):
|
|
|
|
|
|
|
|
|
|
|
Nine Months
|
|
|
|
|
|
|
Ended
|
|
|
Year Ended
|
|
|
|
October 1,
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
To record an increase/(reduction)
in pension and post retirement expense as a result of the
elimination of existing amortization following the merger
|
|
|
1,377
|
|
|
|
(1,061
|
)
|
|
|
|
|
|
|
|
|
|
To reverse share based
compensation expense recorded by Agere under
SFAS 123-R
|
|
$
|
(2,000
|
)
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
(623
|
)
|
|
$
|
(1,061
|
)
|
|
|
|
|
|
|
|
|
|
(e) Adjustments to amortization of intangibles (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
Nine Months
|
|
|
|
|
|
|
Ended
|
|
|
Year Ended
|
|
|
|
October 1,
|
|
|
December 31,
|
|
|
|
2006
|
|
|
2005
|
|
|
To reverse Ageres historical
amortization of intangibles
|
|
$
|
(3,831
|
)
|
|
$
|
(6,347
|
)
|
|
|
|
|
|
|
|
|
|
To record amortization of acquired
identifiable intangible assets
|
|
|
107,745
|
|
|
|
143,660
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
103,914
|
|
|
$
|
137,313
|
|
|
|
|
|
|
|
|
|
|
(f) The pro forma number of shares used in the basic and
diluted per share calculations for the twelve months ended
December 31, 2005 reflects the weighted average number of
shares of LSI common stock for each period presented combined
with the number of shares of outstanding Agere common stock at
December 8, 2006, adjusted to reflect the exchange ratio of
2.16 LSI common shares for each outstanding share of Agere
common stock. The same calculation was made for the pro forma
number of shares used in the basic and diluted per shares
calculations for the nine months ended October 1, 2006
except for the diluted per share calculation in which common
stock equivalents from Agere options and restricted units
assumed were included in the denominator.
(g) To record fair value adjustments for inventory acquired
from Agere.
(h) Adjustments to goodwill and intangible assets (in
thousands):
|
|
|
|
|
|
|
As of
|
|
|
|
October 1,
|
|
|
|
2006
|
|
|
To record the preliminary purchase
price allocation to goodwill
|
|
$
|
1,510,932
|
|
|
|
|
|
|
To record the preliminary purchase
price allocation to intangible assets
|
|
|
1,436,600
|
|
|
|
|
|
|
To eliminate Agere goodwill and
intangible assets from previous acquisitions
|
|
|
(206,014
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
2,741,518
|
|
|
|
|
|
|
(i) Adjustments to other assets (in thousands):
|
|
|
|
|
|
|
As of
|
|
|
|
October 1,
|
|
|
|
2006
|
|
|
To recognize the estimated fair
value for existing license arrangements
|
|
$
|
52,350
|
|
|
|
|
|
|
To adjust deferred tax valuation
allowance for acquired deferred tax liabilities
|
|
|
565,000
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
617,350
|
|
|
|
|
|
|
122
(j) Adjustments to current liabilities (in thousands):
|
|
|
|
|
|
|
As of
|
|
|
|
October 1,
|
|
|
|
2006
|
|
|
To record accrual of direct
acquisition related costs included in the purchase price
|
|
$
|
30,000
|
|
|
|
|
|
|
To record accrual of Ageres
transaction costs
|
|
|
30,000
|
|
|
|
|
|
|
To adjust fair value of deferred
revenue
|
|
|
(19,691
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
40,309
|
|
|
|
|
|
|
(k) Adjustments to long-term obligations (in thousands):
|
|
|
|
|
|
|
As of
|
|
|
|
October 1,
|
|
|
|
2006
|
|
|
To record fair value adjustments
for benefit obligations
|
|
$
|
(130,400
|
)
|
|
|
|
|
|
To record deferred tax liability
assumed at acquisition
|
|
|
565,000
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
434,600
|
|
|
|
|
|
|
(l) Adjustments to shareholders equity (in thousands):
|
|
|
|
|
|
|
As of
|
|
|
|
October 1,
|
|
|
|
2006
|
|
|
To record fair value of LSI common
shares issued
|
|
$
|
3,597,359
|
|
|
|
|
|
|
To record fair value of vested
Agere options assumed
|
|
|
86,434
|
|
|
|
|
|
|
To record immediate write-off of
IPRD
|
|
|
(423,600
|
)
|
|
|
|
|
|
To eliminate Agere
stockholders equity
|
|
|
(301,805
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
2,958,388
|
|
|
|
|
|
|
|
|
3.
|
Restructuring
costs related to post-merger LSI activities
|
As part of combining the two companies, LSI expects to incur
significant restructuring costs during the year commencing with
the closing of the Merger. The unaudited pro forma combined
condensed financial statements do not reflect adjustments
related to these restructuring costs, as management of LSI and
Agere have not yet determined all of the restructuring
activities and therefore, estimates of these costs cannot be
determined at this time. Certain liabilities associated with
these restructuring activities will be recognized in the opening
balance sheet in accordance with EITF Issue No
95-3,
Recognition of Liabilities in Connection with a
Purchase Business Combination, and will result in an
increase in goodwill.
On November 1, 2006, LSI repaid in full $271.8 million
of its convertible subordinated notes.
123
COMPARISON
OF RIGHTS OF HOLDERS OF
LSI COMMON STOCK AND AGERE COMMON STOCK
Upon completion of the merger, the stockholders of Agere will
become stockholders of LSI, and the LSI certificate of
incorporation and the LSI bylaws will govern the rights of
former Agere stockholders. Both LSI and Agere are incorporated
under Delaware law and are subject to the Delaware General
Corporation Law. The following is a summary of material
differences between the rights of holders of LSI common stock
and the rights of holders of Agere common stock. While we
believe that this description covers the material differences
between the two, this summary may not contain all of the
information that is important to you.
Comparison
of the Certificates of Incorporation and Bylaws of LSI and
Agere
The following is a summary of the material differences between
the provisions of the certificate of incorporation and bylaws of
each of LSI and Agere. This summary is not intended to be a
complete discussion of the respective certificates of
incorporation and bylaws of LSI and Agere and it is qualified in
its entirety by reference to the applicable Delaware General
Corporation Law as well as by reference to the respective
certificates of incorporation and bylaws of LSI and Agere.
Stockholders of Agere and LSI should carefully read this entire
joint proxy statement/prospectus and the other documents
referred to in this joint proxy statement/prospectus for a more
complete understanding of the differences between being a
stockholder of LSI and being a stockholder of Agere. LSI and
Agere have filed with the Securities and Exchange Commission
their respective certificates of incorporation and bylaws and
will send copies of these documents to stockholders upon
request. See the section entitled Where You Can Find More
Information beginning on page 134 of this joint proxy
statement/prospectus.
Authorized
Capital Stock
LSIs certificate of incorporation authorizes the issuance
of 1,302,000,000 shares of capital stock, consisting of:
|
|
|
|
|
1,300,000,000 shares of common stock, par value
$0.01 per share; and
|
|
|
|
2,000,000 shares of preferred stock, par value
$0.01 per share.
|
Ageres certificate of incorporation authorizes the
issuance of 1,250,000,000 shares of capital stock,
consisting of:
|
|
|
|
|
1,000,000,000 shares of common stock, par value
$0.01 per share; and
|
|
|
|
250,000,000 shares of preferred stock, par value
$1.00 per share.
|
Size
of the Board of Directors
LSIs bylaws provide that the exact number of directors
comprising the LSI board of directors may be as fixed from time
to time by the LSI board of directors. The LSI board of
directors currently has nine members. Upon completion of the
merger, the LSI board of directors will have nine members.
Ageres certificate of incorporation provides that the
number of directors comprising the Agere board of directors may
be no fewer than three. Ageres board of directors is
divided into three classes as nearly equal in number as
possible, with each class serving staggered three-year terms.
The exact number of directors comprising the Agere board of
directors may be changed at any time by resolution of the Agere
board of directors. The Agere board of directors currently has
eight members.
Voting
LSIs certificate of incorporation provides that each LSI
stockholder is entitled to one vote for each share of capital
stock held; provided, however, that LSI stockholders are
entitled to cumulate votes in connection with the election of
directors.
Each share of Agere common stock is entitled to one vote per
share. Agere stockholders are not entitled to cumulate votes in
connection with the election of directors.
124
Removal
of Directors
LSIs bylaws provide that any director, or the entire LSI
board of directors, may be removed with or without cause by the
holders of a majority of the shares then entitled to vote at an
election of directors. However, if and so long as stockholders
are entitled to cumulative voting in connection with the
election of directors, if less than the entire LSI board of
directors is to be removed, no individual director may be
removed from the LSI board of directors without cause if the
votes cast against such directors removal would be
sufficient to elect such director if then cumulatively voted in
an election of the entire LSI board of directors.
Ageres certificate of incorporation provides that any
director may be removed from office only for cause by the
affirmative vote of the holders of at least a majority of the
voting power of all voting stock then outstanding, voting as a
single class.
Quorum
Both the LSI and Agere bylaws provide that any at any
stockholder meeting of each company, the holders of a majority
of all of the shares of the stock issued and outstanding and
entitled to vote on every matter that is to be voted on at such
meeting, represented in person or by proxy, shall constitute a
quorum at a meeting of stockholders.
Filling
Vacancies on the Board of Directors
LSIs bylaws provide that vacancies on the LSI board of
directors may be filled by a majority of the remaining
directors, even if less than a quorum, or by the sole remaining
director. Any director may resign at any time upon written
notice or upon electronic transmission to the attention of the
corporate secretary of the corporation. When one or more
directors so resigns and the resignation is effective at a
future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill
such vacancy or vacancies.
LSIs bylaws further provide that vacancies on the LSI
board of directors and newly created directorships resulting
from an increase in the authorized number of directors elected
by all of the LSI stockholders having the right to vote as a
single class may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining
director. However, whenever the holders of any class or classes
of stock, or any series of any class of stock, are entitled to
elect one or more directors by the provisions of LSIs
certificate of incorporation, vacancies and newly created
directorships of such class or classes or series may be filled
by a majority of the directors elected by such class or classes
or series then in office, or by a sole remaining director so
elected.
LSIs bylaws also provide that if, at the time of filling
any vacancy or any newly created directorship, the directors
then in office constitute less than a majority of the whole LSI
board of directors (as constituted immediately prior to any such
increase), then the Delaware Court of Chancery may, upon
application of any stockholder(s) holding at least 10% of the
total number of the then outstanding shares having the right to
vote for such directors, summarily order an election to be held
to fill any such vacancies or newly created directorships, or to
replace the directors chosen by the directors then in office,
and such election shall be governed by the provisions of
Section 211 of the Delaware General Corporation Law as far
as applicable.
Ageres certificate of incorporation provides that, except
as otherwise provided for or fixed by or pursuant to the
provisions relating to the rights of preferred stockholders as
to dividends or upon liquidation to elect directors under
specified circumstances, any vacancy on the Agere board of
directors, caused by death, resignation, disqualification,
removal or otherwise, or an increase in the authorized number of
directors, may be filled by a majority of the remaining
directors then in office, even though less than a quorum.
Ability
to Call Special Meetings of the Board of Directors
LSIs bylaws provide that special meetings of the LSI board
of directors for any purpose(s) may be called at any time by the
chairman of the board of directors, a majority of the board of
directors, the president or the chief executive officer.
Ageres bylaws provide that special meetings of the Agere
board of directors may be called by the chairman of the board of
directors, the president, or a majority of the board of
directors then in office.
125
Ability
to Call Special Meetings of Stockholders
LSIs bylaws provide that a special meeting of LSI
stockholders may be called at any time by the LSI board of
directors, the chairman of the board of directors, the president
or by the chief executive officer.
Ageres certificate of incorporation and bylaws provide
that a special meeting of the Agere stockholders may be called
only by the majority of the board of directors or the chairman
of the board of directors.
Limitations
on Business Transacted at Special Meetings of
Stockholders
LSIs bylaws provide that only such business shall be
considered at a special meeting of LSI stockholders as shall
have been stated in the notice for such meeting.
Ageres certificate of incorporation and bylaws also
provide that only such business shall be considered at a special
meeting of Agere stockholders as shall have been stated in the
notice for such meeting.
Stockholder
Nominations and Proposals at Stockholder Meetings
LSIs bylaws allow stockholders to nominate candidates for
election to the LSI board of directors at any annual meeting of
LSI stockholders. In addition, LSIs bylaws allow
stockholders to propose business to be conducted at any annual
meeting of LSI stockholders.
Stockholder nominations of candidates for election to the LSI
board of directors and proposals for business to be conducted at
a stockholders meeting cannot be brought before any such meeting
unless the nomination or proposal was brought before the annual
or special meeting in accordance with LSIs stockholder
advance notice procedures, as described in Delivery and
Notice Requirements for Stockholder Nominations and
Proposals below.
Ageres bylaws allow stockholders to nominate candidates
for election to the Agere board of directors at any annual or
any special stockholder meeting at which the Agere board of
directors has determined that directors will be elected. In
addition, Ageres bylaws allow stockholders to propose
business before any annual or special stockholder meeting.
Stockholder nominations and proposals cannot be brought before
any Agere stockholder meeting unless the nomination or proposal
was brought before the stockholder meeting in accordance with
Ageres stockholder advance notice procedures, as described
in Delivery and Notice Requirements for Stockholder
Nominations and Proposals below.
Delivery
and Notice Requirements for Stockholder Nominations and
Proposals
LSIs bylaws provide that for business to be properly
brought before a meeting of LSI stockholders by an LSI
stockholder, or for a nomination of candidates for election to
the LSI board of directors to be properly made by an LSI
stockholder, such stockholder must have given timely notice of
the proposal for business to be conducted or of such nomination
of candidates for election to the LSI board of directors in
writing to the secretary of LSI. To be timely, notice of a
proposal for business to be conducted at a meeting of LSI
stockholders or of a nomination of candidates for election to
the LSI board of directors must be delivered to, or mailed and
received at, the principal executive offices of LSI not later
than 90 days prior to the first anniversary of the date on
which LSI first sent or gave its proxy statement to stockholders
for the preceding years annual meeting. However, if LSI
did not have an annual meeting of LSI stockholders in the
previous year or if the date of the annual meeting has been
changed by more than 30 days from the date of the previous
years annual meeting, to be timely, notice of a proposal
for business to be conducted at an annual meeting of LSI
stockholders or of a nomination of candidates for election to
the LSI board of directors must be received not later than the
10th day following the day LSI publicly announces the date
of the annual meeting for the current year. Such
stockholders notice shall set forth: (i) as to each
person whom the stockholder proposes to nominate for election or
reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under the
Exchange Act and
Rule 14a-11
thereunder (or any successor thereto) (including such
persons written consent to being named in the proxy
statement as a nominee and to serving as a director if elected);
(ii) as to any other business that the stockholder proposes
to bring before the meeting, a reasonably detailed description
of the business desired to be brought before the meeting, the
reasons for
126
conducting such business at the meeting and any material
interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and
(iii) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or
proposal is made (A) the name and address of such
stockholder, as they appear on LSIs books, and of such
beneficial owner, and (B) the class and number of shares of
LSI stock which are owned beneficially and of record by such
stockholder and such beneficial owner.
Under Ageres bylaws, for nominations or other business to
be properly brought before a stockholder meeting of Agere
stockholders, the stockholder must have given timely notice
thereof in writing to the secretary of Agere and such other
business must otherwise be a proper matter for stockholder
action. To be timely, a stockholders notice shall be
delivered to the secretary of Agere at the principal executive
offices of Agere not later than the close of business on the
45th calendar day nor earlier than the close of business on
the 75th calendar day prior to the first anniversary of the
record date of stockholders entitled to vote at the preceding
years annual meeting; provided, however, that in the event
that the record date is more than 30 calendar days before or
more than 60 calendar days after such anniversary date, notice
by the stockholder to be timely must be so delivered not earlier
than the close of business on the 75th calendar day prior
to such record date and not later than the close of business on
the later of the 45th calendar day prior to such record
date or the 10th calendar day following the calendar day on
which public announcement of such record date is first made by
Agere. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for
the giving of a stockholders notice as described above.
Such stockholders notice shall set forth (A) as to
each person whom the stockholder proposes to nominate for
election or reelection as a director all information relating to
such person that is required to be disclosed in solicitations of
proxies for election of directors pursuant to
Regulation 14A under the Exchange Act and subject to
Rule 14a-12(c)
thereunder (including such persons written consent to
being named in the proxy statement as a nominee and to serving
as a director if elected); (B) as to any other business
that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before
the meeting, the text of the proposal or business (including the
text of any resolutions proposed for consideration and in the
event that such business includes a proposal to amend the bylaws
of Agere, the language of the proposed amendment), the reasons
for conducting such business at the meeting and any material
interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and
(C) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or
proposal is made (1) the name and address of such
stockholder, as they appear on Ageres books, and of such
beneficial owner, (2) the class and number of shares of
Agere stock which are owned beneficially and of record by such
stockholder and such beneficial owner, (3) a representation
that the stockholder is a holder of record of stock of Agere
entitled to vote at such meeting and intends to appear in person
or by an authorized representative at the meeting to propose
such business or nomination, and (4) a representation
whether the stockholder or the beneficial owner, if any, intends
or is part of a group which intends (x) to deliver a proxy
statement
and/or form
of proxy to holders of at least the percentage of Ageres
outstanding capital stock required to approve or adopt the
proposal or elect the nominee
and/or
(y) otherwise to solicit proxies from stockholders in
support of such proposal or nomination. The foregoing notice
requirements shall be deemed satisfied by a stockholder if the
stockholder has notified Agere of his or her intention to
present a proposal at an annual meeting in compliance with
Rule 14a-8
(or any successor thereof) promulgated under the Exchange Act
and such stockholders proposal has been included in a
proxy statement that has been prepared by Agere to solicit
proxies for such annual meeting. Agere may require any proposed
nominee to furnish such other information as it may reasonably
require to determine the eligibility of such proposed nominee to
serve as a director.
Stockholder
Action by Written Consent in Lieu of a Stockholder
Meeting
LSIs bylaws provide that LSI stockholders may take action
at an annual meeting or a special meeting of stockholders. In
addition, LSI stockholders may take action without a meeting,
without prior notice and without a vote, if a written consent is
signed by the holders of outstanding stock having not less than
the minimum number of votes necessary to take action at a
meeting at which all shares entitled to vote were present and
voted.
Ageres certificate of incorporation provides that no
action may be taken by Agere stockholders except at an annual or
special meeting of the stockholders called in accordance with
Ageres bylaws, and that Agere stockholders may not take
action by written consent.
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Amendment
to Bylaws
The LSI board of directors is expressly authorized to make,
alter, amend or repeal LSIs bylaws. LSIs
stockholders entitled to vote may also adopt, amend or repeal
LSIs bylaws.
The Agere board of directors is expressly authorized to adopt,
amend, and repeal Ageres bylaws. Ageres stockholders
entitled to vote at any annual or special meeting may also
adopt, amend or repeal Ageres bylaws by affirmative vote
of the holders of a majority of the voting power of the voting
stock, voting together as a single class. However, any proposed
alteration or repeal of or adoption of any bylaw inconsistent
with provisions of Ageres bylaws relating to special
meetings of stockholders, notice of stockholder business and
nominations requires the affirmative vote of the holders of at
least 80% of the voting power of all voting stock then
outstanding, voting together as a single class.
Payment
of Expenses Incurred by Directors and Officers in Connection
with Legal Proceedings
LSIs bylaws provide that LSI shall advance to any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding
(whether civil, criminal, administrative or investigative), by
reason of the fact that such person is or was a director or
officer of LSI, prior to the final disposition of the
proceeding, all expenses incurred by such person in connection
with such proceeding. However, such payment will be made only if
LSI receives an undertaking by or on behalf of such person to
repay all amounts advanced if it is ultimately determined that
such person is not entitled to be indemnified by LSI as
authorized by LSIs bylaws or otherwise.
However, LSI shall not be required to advance such expenses to
an agent who is a party to a proceeding brought by LSI and
approved by a majority of the board of directors of LSI then in
office, which alleges willful misappropriation of corporate
assets by such agent, disclosure of confidential information in
violation of such agents fiduciary or contractual
obligations to LSI or any other willful and deliberate breach in
bad faith of such agents duty to LSI or its stockholders.
Ageres certificate of corporation provides that Agere may
pay the expenses (including attorneys fees) incurred by
any Agere director, nominee or officer in defending a civil,
criminal or investigative action, suit or proceeding, in advance
of the final disposition of that action, suit or proceeding.
However, if and to the extent the Delaware General Corporation
Law requires, such payment to such persons in their capacity as
director or officer will be made only if Agere receives an
undertaking by or on behalf of the director, nominee or officer
to repay all amounts advanced if it is ultimately determined
that the director, nominee or officer is not entitled to be
indemnified by Agere as authorized by Ageres certificate
of incorporation.
Advance authorization by the Agere board of directors is
required prior to the advancement of expenses incurred by any
Agere director, nominee or officer in connection with any
proceeding initiated by such director, nominee or officer.
Indemnification
of Directors and Officers
LSIs certificate of incorporation contains a provision
eliminating the personal liability of its directors to the
company or its stockholders for monetary damages for breach of
fiduciary duty as a director to the fullest extent permitted by
applicable law. The effect of this provision is to eliminate the
personal liability of directors to the company or its
stockholders for monetary damages for actions involving a breach
of their fiduciary duty of care, including any actions involving
gross negligence. Ageres certificate of incorporation
provides that a director of Agere will not be personally liable
to Agere or Ageres stockholders for monetary damages for
breach of fiduciary duties, except for liability for:
(a) any breach of the directors duty of loyalty to
Agere or its stockholders, (b) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law, (c) payment of a dividend or the
repurchase or redemption of stock in violation of
Section 174 of the Delaware General Corporations Law, or
(d) any transaction from which the director derived an
improper personal benefit. The bylaws of LSI require LSI to
indemnify any party to the fullest extent permitted by the
Delaware General Corporation Law who was or is a party or is
threatened to be made a party to, or is involved in, any pending
or completed action, suit or proceeding because he or she is or
was a director or officer of LSI, or while a director or
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officer of LSI, is or was serving at the request of LSI as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
expenses (including attorneys fees) actually and
reasonably incurred in connection with such proceeding if he
acted in good faith and in a manner reasonably believed to be in
or not opposed to the best interests of the corporation.
Ageres certificate of incorporation requires Agere to
indemnify any party to the fullest extent permitted by the
Delaware General Corporation Law who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding because he is or was a
director or officer of Agere, or while a director or officer of
Agere, is or was serving at the request of Agere as a director,
officer, employee, or agent of another corporation or of a
partnership, limited liability company, joint venture, trust or
other legal entity, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a
director, officer, employee or agent against all expenses
(including attorneys fees) reasonably incurred in
connection with such proceedings. Each of LSI and Agere also
have obtained directors and officers liability
insurance, which insures against liabilities that its directors
and officers may incur in such capacities. LSI has also entered
into indemnification agreements with its directors and officers.
The indemnification agreements provide indemnification to these
directors and officers under certain circumstances for acts or
omissions which may not be covered by directors and
officers liability insurance.
In addition, in accordance with the terms of the merger
agreement and upon completion of the merger, LSI has agreed to
cause the surviving corporation to indemnify and hold harmless
the officers, directors and employees of Agere with respect to
all acts or omissions by them in their capacity as such prior to
the effective time of the merger to the fullest extent permitted
by law and to honor all indemnification agreements. Furthermore,
LSI has agreed that the certificate of incorporation and bylaws
of the surviving corporation will contain provisions
indemnifying the directors and officers of Agere at least as
favorable to the directors and officers of Agere as those
contained in Ageres certificate of incorporation and
bylaws and that, for a period of six years following completion
of the merger, such provisions will not be modified to adversely
affect the rights of the directors, officers, employees or
agents of Agere, unless required by law. LSI also has agreed to
cause the surviving corporation to maintain the current Agere
directors and officers liability insurance policies
covering the directors and officers of Agere for a period of six
years following completion of the merger, provided, however,
that in no event shall LSI or the surviving corporation be
required to expend in any one year an amount in excess of 225%
of the current annual premium paid by Agere for such insurance.
If the annual premiums of such insurance coverage exceed such
amount, LSI and the surviving corporation shall be obligated to
obtain a policy with the greatest coverage available for a cost
not exceeding the maximum annual premium.
Section 145 of the Delaware General Corporation Law
authorizes a court to award or a corporations board of
directors to grant indemnification to directors and officers on
terms that are sufficiently broad to permit indemnification
under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the
Securities Act. Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors,
officers or persons controlling LSI or Agere pursuant to the
foregoing provisions, LSI and Agere have been informed that, in
the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Certain
Business Combination Restrictions
Section 203 of the Delaware General Corporation Law
protects publicly-traded Delaware corporations, such as LSI,
from hostile takeovers and certain actions following a takeover,
by prohibiting some transactions once an acquirer has gained a
significant holding in the corporations.
A corporation may elect not to be governed by Section 203
of the Delaware General Corporation Law. Neither the LSI
certificate of incorporation nor the LSI bylaws contains an
election not to be governed by Section 203 of the Delaware
General Corporation Law. Therefore, LSI is governed by
Section 203 of the Delaware General Corporation Law. This
provision does not apply to LSI in the merger.
Ageres certificate of incorporation contains a provision
whereby Agere has elected not to be governed by Section 203
of the Delaware General Corporation Law. Therefore, Agere is not
governed by Section 203 of the Delaware General Corporation
Law and the provision does not apply to Agere in the merger.
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Stockholder
Rights Plans
Under Delaware General Corporation Law, every corporation may
create and issue rights entitling the holders of such rights to
purchase from the corporation shares of its capital stock of any
class or classes, subject to any provisions in its certificate
of incorporation. The price and terms of such shares must be
stated in the certificate of incorporation or in a resolution
adopted by the board of directors for the creation and issuance
of such rights.
Each of LSI and Agere has entered into a stockholder rights
agreement. The terms of the rights agreements are complex and
not easily summarized, particularly as they relate to the
acquisition of common stock and to exercisability. This summary
may not contain all of the information that is important to
stockholders of LSI and Agere. Accordingly, stockholders of LSI
and Agere should carefully read the LSI rights agreement and the
Agere rights agreement, both of which are incorporated by
reference into this joint proxy statement/prospectus in their
entirety.
Agere has taken all action necessary to render the rights issued
pursuant to the terms of its rights agreement inapplicable to
the merger and related agreements and transactions.
LSI
Stockholder Rights Plan
On November 16, 1998, the LSI board of directors declared a
dividend distribution of one right for each outstanding share of
LSI common stock to LSI stockholders of record at the close of
business on December 15, 1998. Each right is subject to the
terms of LSIs rights agreement.
LSIs rights agreement provides that each share of
LSIs outstanding common stock will have the right to
purchase one one-thousandth of a share of LSIs
Series A Participating Preferred Stock at an exercise price
of $100.00, subject to adjustment. Each share of LSI common
stock issued in connection with the merger will have one right
attached.
The rights under LSIs rights agreement currently are
attached to and trade only together with outstanding shares of
LSI common stock. The rights will separate from LSI common stock
and be represented by separate and distinct certificates
approximately ten days after the public announcement that
someone has acquired 20% or more of the outstanding LSI common
stock or ten days after the commencement or announcement of a
tender offer for 20% or more of the outstanding LSI stock.
After the rights separate from LSIs common stock,
certificates representing the rights will be mailed to record
holders of the common stock. Once distributed, the rights
certificates alone will represent the rights.
All shares of LSI common stock issued prior to the date the
rights separate from the common stock will be issued with rights
attached. The rights are not exercisable until the date the
rights separate from the common stock. The rights will expire on
December 15, 2008 unless earlier redeemed or exchanged by
LSI.
If an acquiror (which could be a person or group) obtains, or
commences a tender or exchange offer to obtain, 20% or more of
LSIs common stock, then each right will entitle the holder
to purchase a number of shares of LSIs common stock having
a then current market value equal to two times the exercise
price.
Each right will entitle the holder to purchase a number of
shares of common stock of the acquiring entity having a then
current market value of two times the exercise price if an
acquiror obtains 20% or more of LSI common stock and any of the
following occurs:
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LSI merges into another entity;
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an acquiring entity merges into LSI; or
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LSI sells more than 50% of its assets or earning power.
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Under LSIs rights agreement, any rights that are or were
owned by an acquiror of more than 20% of LSIs outstanding
common stock, or its affiliates, will be null and void.
LSIs rights agreement provides that after an acquiror
obtains 20% or more of LSIs outstanding common stock, but
less than 50% of LSIs outstanding common stock, the LSI
board of directors may, at its option, exchange
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all or part of the then outstanding and exercisable rights
(other than rights owned by the acquiror or its affiliates) for
LSI common stock. In such an event, the exchange ratio is one
common share per right, adjusted to reflect any stock split,
stock dividend or similar transaction.
At its option, the LSI board of directors may redeem all but not
less than all of the outstanding rights under the LSI rights
agreement at any time on or prior to the close of business on
the earlier of (1) ten days after someone acquires or
commences a tender offer for 20% or more of the outstanding LSI
stock, or (2) December 15, 2008. The redemption price
under LSIs rights agreement is $0.01 per right
adjusted to reflect any stock split, stock dividend or similar
transaction, and LSI may elect to pay the redemption price
either in shares of LSI common stock or cash. The right to
exercise the rights will terminate upon the action of the LSI
board of directors ordering the redemption of the rights and the
only right of the holders of the rights will be to receive the
redemption price.
Holders of rights will have no rights as stockholders of LSI,
including without limitation the right to vote or receive
dividends, simply by virtue of holding the rights.
The provisions of LSIs rights agreement may be amended by
the board of directors prior to the date ten days after any
person acquires or commences a tender offer for 20% or more of
the outstanding LSI stock without approval of the holders of the
rights. However, after the date any person acquires or commences
a tender offer for 20% or more of the outstanding LSI stock, the
rights agreement may not be amended in any manner which would
adversely affect the interests of the holders of the rights,
excluding any interests of the acquiror.
The rights issued under LSIs rights agreement are designed
to protect and maximize the value of the outstanding equity
interests in LSI in the event of an unsolicited attempt by an
acquiror to take over LSI in a manner or on terms that are not
approved by the LSI board of directors. The rights are designed
to deter unfair tactics, including a gradual accumulation of
shares in the open market constituting a 20% or greater
position, followed by a merger or a partial or two-tier tender
offer that does not treat all LSI stockholders equally.
Subject to the restrictions described above, the rights may be
redeemed by LSI at $0.01 per right at any time prior to the
time when rights separate from the common stock. Accordingly,
the rights should not interfere with any merger or business
combination approved by the LSI board of directors. The rights
are not intended to prevent a takeover of LSI. However, the
rights may have the effect of rendering more difficult or
discouraging an acquisition of LSI deemed undesirable by the LSI
board of directors. The rights will cause substantial dilution
to a person or group that attempts to acquire LSI on terms or in
a manner not approved by the LSI board of directors, except
pursuant to an offer conditioned upon redemption of the rights.
Agere
Stockholder Rights Plan
On March 27, 2001, the Agere board of directors declared a
dividend distribution of one Class B right for each
outstanding share of Agere Class B Common Stock, par value
$0.01 per share, and authorized the issuance of one
Class B right and one Class A right for each share of
Class A Common Stock, par value $0.01 per share, to
stockholders of record at the close of business on
March 27, 2001, the record date for the rights plan. The
rights plan was amended and restated as of May 27, 2005 to
reflect the reclassification of Ageres Class A Common
Stock and Class B Common Stock into one class of common
stock and the
1-for-10
reverse stock split of the common stock. Under the rights
agreement, as amended, one right attaches to each share of Agere
common stock, and each right, when exercisable, entitles the
registered holder, subject to the terms of the rights agreement,
to purchase from Agere one-hundredth of a share of Ageres
Series A Junior Participating Preferred Stock, par value
$0.01 per share, at a purchase price of $100, subject to
adjustment.
The rights currently are attached to and trade together with
outstanding shares of Agere common stock. The rights will
separate from Agere common stock and be represented by separate
and distinct certificates approximately ten business days after
a person or group:
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acquires 10% or more of the outstanding shares Agere common
stock; or
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commences a tender or exchange offer for 10% or more of the
outstanding shares Agere common stock.
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For purposes of describing the rights plan, the date that the
rights separate from the common stock is known as the
distribution date.
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Until the distribution date:
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the rights will be evidenced by the Agere uncertificated book
entries or certificates representing Agere common stock and will
be transferred only with such Agere common stock;
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new Agere common stock certificates and book entry confirmations
issued after the record date will contain a notation
incorporating the rights agreement by reference; and
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the surrender for transfer of any Agere common stock outstanding
will also constitute the transfer of the rights associated with
such Agere common stock.
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The rights are not exercisable until the distribution date and
will expire on March 27, 2011, unless the date is extended
or the rights are earlier redeemed or exchanged by Agere as
described below.
As soon as practicable after the distribution date, rights
certificates will be mailed to holders of record of the Agere
common stock as of the close of business on the distribution
date and, thereafter, the separate rights certificates alone
will represent the rights. Except as otherwise determined by the
Agere board of directors, only shares of Agere common stock
issued prior to the distribution date will be issued with rights.
If a person or group acquires or has the right to acquire 10% or
more of the outstanding shares of Agere common stock, other than
as a result of repurchases of stock by Agere or inadvertent
actions by institutional or other stockholders, and except
pursuant to an offer for all outstanding shares of Agere common
stock which the independent directors of Agere determine to be
fair and in the best interests of Agere and its stockholders,
and other than pursuant to the merger agreement, then each right
will entitle the holder (other than the acquiror or its
affiliates) to purchase a number of shares of Agere common stock
having a market value equal to two times the exercise price of
the right.
If, at any time following the date that a person or group
acquires or has the right to acquire 10% or more of the
outstanding shares of Agere common stock:
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Agere engages in a merger or other business combination
transaction in which Agere is not the surviving corporation;
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Agere engages in a merger or other business combination
transaction in which Agere is the surviving corporation and the
Agere common stock is changed or exchanged; or
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Agere sells more than 50% of its assets or earning power;
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then, each holder of a right (other than the acquiror or its
affiliates) shall thereafter have the right to receive, upon
exercise, capital stock of the acquiring company having a market
value equal to two times the exercise price of the right.
Under Ageres rights agreement, any rights that are or were
owned by a person or group that acquired or has the right to
acquire 10% or more of Ageres outstanding common stock
will be null and void.
Ageres rights agreement contains exchange provisions which
provide that after a person or group acquires or has the right
to acquire 10% or more of Ageres outstanding common stock
(other than pursuant to the merger agreement) but less than 50%
of Ageres outstanding common stock, the Agere board of
directors may, at its option, exchange all or part of the then
outstanding and exercisable rights (other than rights owned by
the acquiror or its affiliates) at an exchange ratio of one
share of Agere common stock (or a fractional preferred share
equivalent in value thereto) per right, subject to adjustment.
At any time until ten business days following the public
announcement that a person or group acquired or has the right to
acquire 10% or more of Agere common stock (other than pursuant
to the merger agreement), Agere may redeem the rights in whole,
but not in part, at a price of $0.01 per right (payable in
cash, Agere common stock or other consideration deemed
appropriate by the Agere board of directors). Immediately upon
the action of the Agere board of directors ordering redemption
of the rights, the rights will terminate and the only right of
the holders will be to receive the $0.01 per right redemption
price.
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Prior to the distribution date, the Agere board of directors may
amend the provisions of the Agere rights agreement without the
approval of the holders of the rights. After the distribution
date, the Agere board of directors may amend the provisions of
the rights agreement in order to:
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cure any ambiguity;
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make changes which do not adversely affect the interests of
holders of rights (other than the interests of an acquiror);
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cause the rights agreement to again become otherwise
amendable; or
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cause the rights again to be redeemable.
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Until a right is exercised, the holder thereof, as such, will
have no rights as a stockholder of Agere, including, without
limitation, the right to vote or to receive dividends.
The rights may have anti-takeover effects. The rights will cause
substantial dilution to a person or group that attempts to
acquire Agere in a manner which causes the rights to become
discount rights unless the offer is conditional upon a
substantial number of rights being acquired. Accordingly, the
existence of the rights may deter acquirors from making takeover
proposals or tender offers. However, the rights are not intended
to prevent a takeover, but rather are designed to enhance the
ability of the Agere board of directors to negotiate with an
acquiror on behalf of all the stockholders.
FUTURE
LSI STOCKHOLDER PROPOSALS
The time for LSI stockholders to submit proposals for inclusion
in LSIs proxy statement for LSIs 2007 annual meeting
of stockholders in accordance with the standards contained in
Rule 14a-8
under the Exchange Act and LSIs bylaws has passed.
Accordingly, no new stockholder proposals may be submitted to
LSI for inclusion in LSIs proxy statement for LSIs
2007 annual meeting of stockholders. However, if the date of
LSIs 2007 stockholder meeting is changed by more than
30 days from the date of the prior years meeting,
then notice must be received no later than the close of business
on the tenth day following the day notice of the date of the
meeting is mailed or public disclosure of such date is made,
whichever occurs first. You may contact the LSI corporate
secretary at LSIs principal executive offices for a copy
of the relevant provisions of LSIs bylaws regarding the
requirements for making stockholder proposals and nominations
for directors.
STOCKHOLDER
PROPOSALS FOR THE AGERE 2008 ANNUAL MEETING
Any stockholder who intends to present a proposal at the 2008
Annual Meeting of Stockholders, in the event the merger is not
completed, must ensure that the proposal is received by the
Corporate Secretary at Agere Systems Inc., 1110 American Parkway
NE, Allentown, Pennsylvania 18109:
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not later than October 8, 2007, if the proposal is
submitted for inclusion in Ageres proxy materials for that
meeting pursuant to
Rule 14a-8
under the Exchange Act; or
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on or after November 19, 2007, and on or before
December 19, 2007, if the proposal is submitted pursuant to
Ageres bylaws, in which case the notice of the proposal
must meet certain requirements set forth in Ageres bylaws
and Agere will not be required to include the proposal in
Ageres proxy materials.
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LEGAL
MATTERS
Wilson Sonsini Goodrich & Rosati, Professional
Corporation, Palo Alto, California will pass upon the validity
of the shares of LSI common stock offered by this joint proxy
statement/prospectus and certain federal income tax consequences
of the merger for LSI.
Skadden, Arps, Slate, Meagher & Flom LLP, New York, New
York, will pass upon certain federal income tax consequences of
the merger for Agere.
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EXPERTS
The consolidated financial statements and managements
assessment of the effectiveness of internal control over
financial reporting (which is included in Managements
Report on Internal Control over Financial Reporting)
incorporated in this joint proxy statement/prospectus by
reference to LSI Logic Corporations Annual Report on
Form 10-K
for the year ended December 31, 2005 have been so
incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
The consolidated financial statements and managements
assessment of the effectiveness of internal control over
financial reporting (which is included in the Managements
Report on Internal Control over Financial Reporting)
incorporated in this joint proxy statement/prospectus by
reference to Agere Systems Inc.s Annual Report on
Form 10-K
for the year ended September 30, 2006 have been so
incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
WHERE YOU
CAN FIND MORE INFORMATION
This joint proxy statement/prospectus incorporates documents
by reference which are not presented in or delivered with this
joint proxy statement/prospectus. Stockholders of LSI and Agere
should rely only on the information contained in this joint
proxy statement/prospectus and in the documents that LSI and
Agere have incorporated by reference into this joint proxy
statement/prospectus. LSI and Agere have not authorized anyone
to provide stockholders of LSI or Agere with information that is
different from or in addition to the information contained in
this document or incorporated by reference into this joint proxy
statement/prospectus.
The following documents, which were filed by LSI with the
Securities and Exchange Commission, are incorporated by
reference into this joint proxy statement/prospectus:
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LSIs annual report on
Form 10-K
for the fiscal year ended December 31, 2005, filed with the
Securities and Exchange Commission on March 16, 2006;
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LSIs current report on
Form 8-K,
filed with the Securities and Exchange Commission on
April 6, 2006;
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Item 8.01 only of LSIs current report on
Form 8-K,
filed with the Securities and Exchange Commission on
April 26, 2006;
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|
LSIs quarterly report on
Form 10-Q,
filed with the Securities and Exchange Commission on
May 12, 2006;
|
|
|
|
LSIs current report on
Form 8-K,
filed with the Securities and Exchange Commission on
May 17, 2006;
|
|
|
|
LSIs current report on
Form 8-K,
filed with the Securities and Exchange Commission on
July 10, 2006;
|
|
|
|
Item 8.01 only of LSIs current report on
Form 8-K,
filed with the Securities and Exchange Commission on
July 26, 2006;
|
|
|
|
LSIs quarterly report on
Form 10-Q,
filed with the Securities and Exchange Commission on
August 11, 2006;
|
|
|
|
LSIs current report on
Form 8-K,
filed with the Securities and Exchange Commission on
August 14, 2006;
|
|
|
|
LSIs current report on
Form 8-K/A,
filed with the Securities and Exchange Commission on
August 14, 2006;
|
|
|
|
Item 8.01 only of LSIs current report on
Form 8-K,
filed with the Securities and Exchange Commission on
October 25, 2006;
|
|
|
|
LSIs quarterly report on
Form 10-Q,
filed with the Securities and Exchange Commission on
November 13, 2006;
|
134
|
|
|
|
|
LSIs current report on
Form 8-K/A,
filed with the Securities and Exchange Commission on
November 13, 2006;
|
|
|
|
LSIs current report on
Form 8-K,
filed with the Securities and Exchange Commission on
December 4, 2006;
|
|
|
|
Item 8.01 only of LSIs current report on
Form 8-K,
filed with the Securities and Exchange Commission on
January 24, 2007;
|
|
|
|
The description of LSIs common stock contained in its
registration statement on
Form 8-A,
filed with the Securities and Exchange Commission on
August 29, 1989 and any amendment or report filed with the
Securities and Exchange Commission for the purpose of updating
such description; and
|
|
|
|
The description of LSIs preferred share purchase rights
contained in its registration statement on
Form 8-A/A,
filed with the Securities and Exchange Commission on
December 12, 1998 and any amendment or report filed with
the Securities and Exchange Commission for the purpose of
updating such description.
|
The following documents, which were filed by Agere with the
Securities and Exchange Commission, are incorporated by
reference into this joint proxy statement/prospectus:
|
|
|
|
|
Ageres annual report on
Form 10-K
for the fiscal year ended September 30, 2006, filed with
the Securities and Exchange Commission on December 1, 2006
and the amendment to such annual report on
Form 10-K/A
No. 1, filed with the Securities and Exchange Commission on
January 26, 2007;
|
|
|
|
Ageres current report on
Form 8-K,
filed with the Securities and Exchange Commission on
December 4, 2006;
|
|
|
|
Ageres current report on
Form 8-K/A,
filed with the Securities and Exchange Commission on
December 7, 2006; and
|
|
|
|
The description of Ageres common stock and preferred stock
purchase rights contained in its current report on
Form 8-K
and the exhibits thereto, filed with the Securities and Exchange
Commission on June 1, 2005 and any amendment or report
filed with the Securities and Exchange Commission for the
purpose of updating such description.
|
In addition, all documents filed by LSI and Agere pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act after the date of this joint proxy
statement/prospectus and before the date of the LSI special and
Agere annual meetings are deemed to be incorporated by reference
into, and to be a part of, this joint proxy statement/prospectus
from the date of filing of those documents.
Any statement contained in this joint proxy statement/prospectus
or in a document incorporated or deemed to be incorporated by
reference into this joint proxy statement/prospectus will be
deemed to be modified or superseded for purposes of this joint
proxy statement/prospectus to the extent that a statement
contained in this joint proxy statement/prospectus or any other
subsequently filed document that is deemed to be incorporated by
reference into this joint proxy statement/prospectus modifies or
supersedes the statement. Any statement so modified or
superseded will not be deemed, except as so modified or
superseded, to constitute a part of this joint proxy
statement/prospectus.
LSI has supplied all information contained or incorporated by
reference in this joint proxy statement/prospectus about LSI,
and Agere has supplied all information contained or incorporated
by reference in this joint proxy statement/prospectus about
Agere.
The documents incorporated by reference into this joint proxy
statement/prospectus are available from us upon request. LSI and
Agere will provide a copy of any and all of the information that
is incorporated by reference in this joint proxy
statement/prospectus (not including exhibits to the information
unless those exhibits are specifically incorporated by reference
into this joint proxy statement/prospectus) to any person,
without charge, upon written or oral request. In order for
LSI stockholders to receive timely delivery of the documents in
advance of the LSI special meeting, LSI should receive your
request no later than March 22, 2007. In order for Agere
stockholders to receive timely delivery of the documents in
advance of the Agere annual meeting, Agere should receive your
request no later than March 22, 2007.
135
LSI and Agere stockholders may request a copy of information
incorporated by reference into this joint proxy
statement/prospectus by contacting the investor relations
department for each of LSI and Agere at:
|
|
|
For information relating to LSI:
|
|
For information relating to Agere:
|
|
|
|
LSI Logic Corporation
|
|
Agere Systems Inc.
|
1621 Barber Lane
|
|
1110 American Parkway NE
|
Milpitas, California 95035
|
|
Allentown, Pennsylvania 18109
|
Attention: Investor Relations
|
|
Attention: Response Center
|
1-800-433-8778
|
|
1-800-372-2477
|
In addition, LSI stockholders may obtain copies of LSIs
information by making a request by sending an
e-mail to
investorrelations@lsi.com.
Agere stockholders may obtain copies of Ageres information
by making a request by sending an
e-mail to
investor@agere.com.
LSI and Agere file annual, quarterly and current reports, proxy
and information statements and other information with the
Securities and Exchange Commission. Copies of the reports, proxy
and information statements and other information filed by LSI
and Agere with the Securities and Exchange Commission may be
inspected and copied at the public reference facilities
maintained by the Securities and Exchange Commission at:
100 F Street, N.E.
Washington, D.C. 20549
Copies of these materials can also be obtained by mail at
prescribed rates from the Public Reference Section of the
Securities and Exchange Commission, 100 F Street, N.E.,
Washington, D.C. 20549 or by calling the Securities and
Exchange Commission at
1-800-SEC-0330.
The Securities and Exchange Commission maintains a Website that
contains reports, proxy statements and other information
regarding each of LSI and Agere. The address of the Securities
and Exchange Commission web site is http://www.sec.gov.
LSI has filed a registration statement on
Form S-4
under the Securities Act with the Securities and Exchange
Commission with respect to LSIs common stock to be issued
to Agere stockholders in connection with the merger. This joint
proxy statement/prospectus constitutes the prospectus of LSI
filed as part of the registration statement. This joint proxy
statement/prospectus does not contain all of the information set
forth in the registration statement because certain parts of the
registration statement are omitted in accordance with the rules
and regulations of the Securities and Exchange Commission. The
registration statement and its exhibits are available for
inspection and copying as set forth above.
LSI stockholders should contact Georgeson Inc. at the address or
telephone number listed below with any questions about the
merger:
Georgeson Inc.
17 State Street, 10th Floor
New York, NY 10004
Toll Free:
(866) 783-6820
Banks and Brokerage Firms:
(212) 440-9800
Any LSI stockholder who needs additional copies of this joint
proxy statement/prospectus or voting materials should contact
Georgeson Inc. as described above or send
e-mail to
investorrelations@lsi.com.
Agere stockholders should contact The Proxy Advisory Group, LLC
at the telephone number(s) listed below with any questions about
the merger:
The Proxy Advisory Group, LLC
Telephone Number: (212) 213-3832
Toll Free: 1-866-678-1770
136
Any Agere stockholder who needs additional copies of this joint
proxy statement/prospectus or voting materials should or send
e-mail to
investor@agere.com.
This joint proxy statement/prospectus does not constitute an
offer to sell, or a solicitation of an offer to purchase, the
securities offered by this joint proxy statement/prospectus, or
the solicitation of a proxy, in any jurisdiction to or from any
person to whom or from whom it is unlawful to make such offer,
solicitation of an offer or proxy solicitation in such
jurisdiction. Neither the delivery of this joint proxy
statement/prospectus nor any distribution of securities pursuant
to this joint proxy statement/prospectus shall, under any
circumstances, create any implication that there has been no
change in the information set forth or incorporated into this
joint proxy statement/prospectus by reference or in the affairs
of LSI or Agere since the date of this joint proxy
statement/prospectus.
137
TABLE
OF CONTENTS
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Page
|
|
ARTICLE I DEFINITIONS AND
INTERPRETATIONS
|
|
|
A-1
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|
|
1.1
|
|
|
Certain Definitions
|
|
|
A-1
|
|
|
1.2
|
|
|
Additional Definitions
|
|
|
A-8
|
|
|
1.3
|
|
|
Certain Interpretations
|
|
|
A-10
|
|
|
|
|
|
|
ARTICLE II THE MERGER
|
|
|
A-10
|
|
|
2.1
|
|
|
The Merger
|
|
|
A-10
|
|
|
2.2
|
|
|
The Closing
|
|
|
A-10
|
|
|
2.3
|
|
|
The Effective Time
|
|
|
A-10
|
|
|
2.4
|
|
|
Effect of the Merger
|
|
|
A-11
|
|
|
2.5
|
|
|
Certificate of Incorporation and
Bylaws
|
|
|
A-11
|
|
|
2.6
|
|
|
Directors and Officers
|
|
|
A-11
|
|
|
2.7
|
|
|
Effect on Capital Stock
|
|
|
A-11
|
|
|
2.8
|
|
|
Exchange of Certificates
|
|
|
A-13
|
|
|
2.9
|
|
|
No Further Ownership Rights in
Agere Common Stock
|
|
|
A-14
|
|
|
2.10
|
|
|
Lost, Stolen or Destroyed
Certificates
|
|
|
A-15
|
|
|
2.11
|
|
|
Further Action
|
|
|
A-15
|
|
|
|
|
|
|
ARTICLE III REPRESENTATIONS
AND WARRANTIES OF AGERE
|
|
|
A-15
|
|
|
3.1
|
|
|
Organization and Qualification
|
|
|
A-15
|
|
|
3.2
|
|
|
Subsidiaries
|
|
|
A-15
|
|
|
3.3
|
|
|
Certificate of Incorporation and
Bylaws
|
|
|
A-16
|
|
|
3.4
|
|
|
Capitalization
|
|
|
A-16
|
|
|
3.5
|
|
|
Authority; Requisite Agere
Stockholder Approval
|
|
|
A-17
|
|
|
3.6
|
|
|
Required Filings and Consents
|
|
|
A-18
|
|
|
3.7
|
|
|
Agere SEC Reports
|
|
|
A-18
|
|
|
3.8
|
|
|
Disclosure Controls and Procedures
|
|
|
A-19
|
|
|
3.9
|
|
|
No Undisclosed Liabilities
|
|
|
A-20
|
|
|
3.10
|
|
|
Absence of Certain Changes or
Events
|
|
|
A-20
|
|
|
3.11
|
|
|
Compliance with Laws; Permits
|
|
|
A-20
|
|
|
3.12
|
|
|
Legal Proceedings; Orders
|
|
|
A-20
|
|
|
3.13
|
|
|
Material Contracts
|
|
|
A-20
|
|
|
3.14
|
|
|
Employee Benefit Matters
|
|
|
A-21
|
|
|
3.15
|
|
|
Labor Matters
|
|
|
A-24
|
|
|
3.16
|
|
|
Properties
|
|
|
A-25
|
|
|
3.17
|
|
|
Tax Matters
|
|
|
A-25
|
|
|
3.18
|
|
|
Environmental Matters
|
|
|
A-25
|
|
|
3.19
|
|
|
Intellectual Property Matters
|
|
|
A-26
|
|
|
3.20
|
|
|
Insurance
|
|
|
A-27
|
|
|
3.21
|
|
|
Interested Party Transactions
|
|
|
A-27
|
|
|
3.22
|
|
|
Brokers, Finders and Financial
Advisors
|
|
|
A-27
|
|
|
3.23
|
|
|
Opinion of Financial Advisor of
Agere
|
|
|
A-27
|
|
|
3.24
|
|
|
Takeover Statutes
|
|
|
A-28
|
|
|
3.25
|
|
|
Rights Plan
|
|
|
A-28
|
|
A-i
|
|
|
|
|
|
|
|
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|
|
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|
Page
|
|
ARTICLE IV REPRESENTATIONS
AND WARRANTIES OF LSI AND MERGER SUB
|
|
|
A-28
|
|
|
4.1
|
|
|
Organization and Qualification
|
|
|
A-28
|
|
|
4.2
|
|
|
Subsidiaries
|
|
|
A-28
|
|
|
4.3
|
|
|
Certificate of Incorporation and
Bylaws
|
|
|
A-29
|
|
|
4.4
|
|
|
Capitalization
|
|
|
A-29
|
|
|
4.5
|
|
|
Authority; Requisite LSI
Stockholder Approval
|
|
|
A-30
|
|
|
4.6
|
|
|
Required Filings and Consents
|
|
|
A-30
|
|
|
4.7
|
|
|
LSI SEC Reports
|
|
|
A-31
|
|
|
4.8
|
|
|
Disclosure Controls and Procedures
|
|
|
A-31
|
|
|
4.9
|
|
|
No Undisclosed Liabilities
|
|
|
A-32
|
|
|
4.10
|
|
|
Absence of Certain Changes or
Events
|
|
|
A-32
|
|
|
4.11
|
|
|
Compliance with Laws; Permits
|
|
|
A-32
|
|
|
4.12
|
|
|
Legal Proceedings; Orders
|
|
|
A-33
|
|
|
4.13
|
|
|
Material Contracts
|
|
|
A-33
|
|
|
4.14
|
|
|
Employee Benefit Matters
|
|
|
A-34
|
|
|
4.15
|
|
|
Labor Matters
|
|
|
A-37
|
|
|
4.16
|
|
|
Properties
|
|
|
A-37
|
|
|
4.17
|
|
|
Tax Matters
|
|
|
A-37
|
|
|
4.18
|
|
|
Environmental Matters
|
|
|
A-38
|
|
|
4.19
|
|
|
Intellectual Property Matters
|
|
|
A-38
|
|
|
4.20
|
|
|
Insurance
|
|
|
A-40
|
|
|
4.21
|
|
|
Interested Party Transactions
|
|
|
A-40
|
|
|
4.22
|
|
|
Brokers, Finders and Financial
Advisors
|
|
|
A-40
|
|
|
4.23
|
|
|
Opinion of Financial Advisor of LSI
|
|
|
A-40
|
|
|
4.24
|
|
|
Takeover Statutes
|
|
|
A-40
|
|
|
|
|
|
|
ARTICLE V CONDUCT OF BUSINESS
|
|
|
A-40
|
|
|
5.1
|
|
|
Affirmative Obligations
|
|
|
A-40
|
|
|
5.2
|
|
|
Negative Obligations
|
|
|
A-40
|
|
|
5.3
|
|
|
Supplemental Indenture
|
|
|
A-43
|
|
|
|
|
|
|
ARTICLE VI ADDITIONAL
AGREEMENTS
|
|
|
A-43
|
|
|
6.1
|
|
|
No Solicitation
|
|
|
A-43
|
|
|
6.2
|
|
|
Board Recommendations
|
|
|
A-45
|
|
|
6.3
|
|
|
Merger Stockholder Meetings
|
|
|
A-46
|
|
|
6.4
|
|
|
Registration Statement; Joint
Proxy Statement/Prospectus;
Regulation M-A
Filings
|
|
|
A-47
|
|
|
6.5
|
|
|
Rights Plans
|
|
|
A-48
|
|
|
6.6
|
|
|
Efforts to Complete Merger;
Regulatory Filings
|
|
|
A-49
|
|
|
6.7
|
|
|
Access; Notice and Consultation;
Confidentiality
|
|
|
A-50
|
|
|
6.8
|
|
|
Public Announcements
|
|
|
A-51
|
|
|
6.9
|
|
|
Agere ESPP
|
|
|
A-51
|
|
|
6.10
|
|
|
Agere Stock Awards
|
|
|
A-51
|
|
|
6.11
|
|
|
Registration Statements for
Assumed Options and Other Awards
|
|
|
A-52
|
|
|
6.12
|
|
|
Agere 401(k) Plans
|
|
|
A-52
|
|
|
6.13
|
|
|
Agere Employee Benefits
|
|
|
A-52
|
|
A-ii
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
6.14
|
|
|
Directors and Officers
Indemnification and Insurance
|
|
|
A-53
|
|
|
6.15
|
|
|
Listing of LSI Shares
|
|
|
A-54
|
|
|
6.16
|
|
|
Takeover Statutes
|
|
|
A-54
|
|
|
6.17
|
|
|
Section 16 Matters
|
|
|
A-54
|
|
|
6.18
|
|
|
Affiliate Agreements; Restrictive
Legends
|
|
|
A-55
|
|
|
6.19
|
|
|
Tax Matters
|
|
|
A-55
|
|
|
6.20
|
|
|
FIRPTA Certificate
|
|
|
A-55
|
|
|
6.21
|
|
|
Obligations of Merger Sub
|
|
|
A-55
|
|
|
6.22
|
|
|
LSI Name
|
|
|
A-55
|
|
|
6.23
|
|
|
LSI Facilities
|
|
|
A-55
|
|
|
6.24
|
|
|
LSI Board
|
|
|
A-55
|
|
|
6.25
|
|
|
LSI Chairman and CEO
|
|
|
A-55
|
|
|
|
|
|
|
ARTICLE VII CONDITIONS TO THE
MERGER
|
|
|
A-56
|
|
|
7.1
|
|
|
Conditions to Obligation of Each
Party to Effect the Merger
|
|
|
A-56
|
|
|
7.2
|
|
|
Additional Conditions to
Obligations of LSI and Merger Sub
|
|
|
A-56
|
|
|
7.3
|
|
|
Additional Conditions to
Obligation of Agere
|
|
|
A-57
|
|
|
|
|
|
|
ARTICLE VIII TERMINATION
|
|
|
A-58
|
|
|
8.1
|
|
|
Termination
|
|
|
A-58
|
|
|
8.2
|
|
|
Effect of Termination
|
|
|
A-59
|
|
|
8.3
|
|
|
Fees and Expenses
|
|
|
A-60
|
|
|
|
|
|
|
ARTICLE IX GENERAL PROVISIONS
|
|
|
A-62
|
|
|
9.1
|
|
|
Nonsurvival of Representations,
Warranties, Covenants and Agreements
|
|
|
A-62
|
|
|
9.2
|
|
|
Notices
|
|
|
A-62
|
|
|
9.3
|
|
|
Amendment
|
|
|
A-63
|
|
|
9.4
|
|
|
Extension; Waiver
|
|
|
A-63
|
|
|
9.5
|
|
|
Severability
|
|
|
A-63
|
|
|
9.6
|
|
|
Entire Agreement
|
|
|
A-63
|
|
|
9.7
|
|
|
No Third Party Beneficiaries
|
|
|
A-63
|
|
|
9.8
|
|
|
Assignment
|
|
|
A-63
|
|
|
9.9
|
|
|
Failure or Indulgence Not Waiver;
Remedies Cumulative
|
|
|
A-64
|
|
|
9.10
|
|
|
Governing Law
|
|
|
A-64
|
|
|
9.11
|
|
|
Consent to Jurisdiction
|
|
|
A-64
|
|
|
9.12
|
|
|
Waiver of Jury Trial
|
|
|
A-64
|
|
|
9.13
|
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Counterparts
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A-iii
AGREEMENT
AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this
Agreement) is made and entered into as of
December 3, 2006 by and among LSI Logic Corporation, a
Delaware corporation (LSI), Atlas Acquisition
Corp., a Delaware corporation and a wholly owned subsidiary of
LSI (Merger Sub), and Agere Systems Inc., a
Delaware corporation (Agere).
W I T N E
S S E T H:
WHEREAS, each of the respective Boards of Directors of LSI,
Merger Sub and Agere have approved the Agreement and the
transactions contemplated hereby, and deems it advisable and in
the best interest of their stockholders to enter into this
Agreement and consummate the transactions contemplated hereby,
pursuant to which, among other things, at the Effective Time,
Merger Sub will be merged with and into Agere (the
Merger) in accordance with the terms and
conditions of this Agreement and the applicable provisions of
the General Corporation Law of the State of Delaware (the
DGCL), Agere will continue as the surviving
corporation of the Merger and as a wholly owned subsidiary of
LSI and each share of Agere Common Stock outstanding immediately
prior to the Effective Time (as defined herein) will be
cancelled and converted into the right to receive the
consideration set forth herein, all upon the terms and subject
to the conditions set forth in this Agreement.
WHEREAS, for U.S. federal income tax purposes, it is
intended that the Merger shall qualify as a reorganization
within the meaning of Section 368(a) of the Internal
Revenue Code of 1986, as amended (the Code),
and that this Agreement shall be, and is hereby, adopted as a
plan of reorganization within the meaning of Treasury
Regulations
Section 1.368-2(g).
WHEREAS, LSI and Agere desire to make certain representations
and warranties to the other in connection with the business
combination transaction contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing premises and
the representations, warranties, covenants and agreements set
forth herein, as well as other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound hereby, LSI, Merger Sub and
Agere hereby agree as follows:
ARTICLE I
DEFINITIONS
AND INTERPRETATIONS
1.1 Certain Definitions. For
all purposes of and under this Agreement, the following
capitalized terms shall have the following respective meanings:
(a) Acquisition Proposal shall
mean any offer or proposal (other than an offer or proposal by
the other party hereto) relating to any Acquisition Transaction.
(b) Acquisition Transaction shall
mean, with respect to Agere or LSI, any transaction or series of
related transactions (other than the transactions contemplated
by this Agreement or expressly permitted by
Section 5.2) involving: (i) any acquisition or
purchase from a party hereto by any Person or group
(as defined in or under Section 13(d) of the Exchange Act),
directly or indirectly, of a fifteen percent (15%) or greater
interest in the total outstanding equity interests or voting
securities of such party, or any tender offer or exchange offer
that if consummated would result in any Person or
group (as defined in or under Section 13(d) of
the Exchange Act) beneficially owning fifteen percent (15%) or
more of the total outstanding equity interests or voting
securities of a party hereto; (ii) any acquisition or
purchase of fifty percent (50%) or more of any class of equity
or other voting securities of one or more Subsidiaries of a
party hereto the business(es) of which, individually or in the
aggregate, generate or constitute fifteen percent (15%) or more
of the net revenues, net income or assets (as of or for the
twelve (12) month period ending on the last day of the
applicable partys most recently completed fiscal year) of
such party and its Subsidiaries, taken as a whole;
(iii) any merger, consolidation, business combination or
other similar transaction involving a party hereto or one or
more of its Subsidiaries the business(es) of which, individually
or in the aggregate, generate or
A-1
constitute fifteen percent (15%) or more of the net revenues,
net income or assets (as of or for the twelve (12) month
period ending on the last day of the applicable partys
most recently completed fiscal year) of such party and its
Subsidiaries, taken as a whole, pursuant to which the
stockholders of such party or such Subsidiary or Subsidiaries,
as applicable, immediately preceding such transaction hold less
than
eighty-five percent
(85%) of the equity interests in the surviving or resulting
entity of such transaction; (iv) any sale, lease (other
than in the ordinary course of business), exchange, transfer,
license (other than in the ordinary course of business),
acquisition or disposition of assets of a party hereto that
generate or constitute fifteen percent (15%) or more of the net
revenues, net income or assets (as of or for the twelve
(12) month period ending on the last day of the applicable
partys most recently completed fiscal year) of such party
and its Subsidiaries, taken as a whole; (v) any
liquidation, dissolution, recapitalization or other significant
corporate reorganization of a party hereto or one or more of its
Subsidiaries the business(es) of which, individually or in the
aggregate, generate or constitute fifteen percent (15%) or more
of the net revenues, net income or assets (as of or for the
twelve (12) month period ending on the last day of the
applicable partys most recently completed fiscal year) of
such party and its Subsidiaries, taken as a whole; or
(vi) any combination of the foregoing.
(c) Affiliate shall mean, with
respect to any Person, any other Person which directly or
indirectly controls, is controlled by or is under common control
with such Person. For purposes of the immediately preceding
sentence, the term control (including, with
correlative meanings, the terms controlling,
controlled by and under common control
with), as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such
Person, whether through ownership of voting securities, by
contract or otherwise.
(d) Agere Balance Sheet shall
mean the audited balance sheet of Agere contained in the Agere
Annual Report on
Form 10-K
for the year ended September 30, 2006.
(e) Agere Board shall mean the
Board of Directors of Agere.
(f) Agere Bylaws shall mean the
Bylaws of Agere, as amended and in effect on the date hereof.
(g) Agere Capital Stock shall
mean Agere Common Stock and Agere Preferred Stock.
(h) Agere Certificate of
Incorporation shall mean the Restated Certificate
of Incorporation of Agere, as amended and in effect on the date
hereof.
(i) Agere Common Stock shall mean
the Common Stock, par value $0.01 per share, of Agere.
(j) Agere Employee Plans shall
mean all Employee Benefit Plans maintained, or contributed to by
Agere, any of Ageres Subsidiaries or any of their
respective ERISA Affiliates or to which Agere, any of
Ageres Subsidiaries or any of their respective ERISA
Affiliates is obligated to contribute, or under which any of
them has or may reasonably be likely to have any liability for
premiums or benefits or other obligations.
(k) Agere ESPP shall mean
Ageres 2001 Employee Stock Purchase Plan, as amended.
(l) Agere Intellectual Property
Business shall mean the Agere business that
manages Ageres Patent portfolio and is responsible for
obtaining revenue in exchange for licenses, sales or other
transactions involving Agere Intellectual Property Rights.
(m) Agere Intellectual Property
Rights shall mean Intellectual Property Rights
that are owned or purported to be owned by or exclusively
licensed to Agere or its Subsidiaries.
(n) Agere Material Adverse Effect
shall mean any fact, circumstance, change or effect that,
individually or when taken together with all other such facts,
circumstances, changes or effects that exist at the date of
determination of the occurrence of the Agere Material Adverse
Effect, has or is reasonably likely to have a material adverse
effect on the business, operations, financial condition or
results of operations of Agere and its Subsidiaries, taken as a
whole; provided, however, that no facts, circumstances,
changes or effects (by themselves or when aggregated with any
other facts, circumstances, changes or effects) resulting from,
relating to or arising out of the following shall be deemed to
be or constitute an Agere Material Adverse Effect, and no facts,
circumstances, changes or effects resulting from, relating to or
arising out of the following (by themselves or when aggregated
with any other facts, circumstances, changes or effects) shall
be taken into
A-2
account when determining whether an Agere Material Adverse
Effect has occurred or may, would or could occur:
(i) economic, financial or political conditions in the
United States or any other jurisdiction in which Agere or any of
its Subsidiaries has substantial business or operations, and any
changes therein (including any changes arising out of acts of
terrorism, war, weather conditions or other force majeure
events), to the extent that such conditions do not have a
materially disproportionate impact on Agere and its
Subsidiaries, taken as a whole, relative to other semiconductor
companies of comparable size; (ii) conditions in the
semiconductor industry, and any changes therein (including any
changes arising out of acts of terrorism, war, weather
conditions or other force majeure events), to the extent that
such conditions do not have a materially disproportionate impact
on Agere and its Subsidiaries, taken as a whole, relative to
other semiconductor companies of comparable size;
(iii) conditions in the financial markets, and any changes
therein (including any changes arising out of acts of terrorism,
war, weather conditions or other force majeure events), to the
extent that such conditions do not have a materially
disproportionate impact on Agere and its Subsidiaries, taken as
a whole, relative to other semiconductor companies of comparable
size; (iv) acts of terrorism or war; (v) the
announcement or pendency of this Agreement and the transactions
contemplated hereby; (vi) changes in Legal Requirements or
GAAP (or any interpretations of GAAP) applicable to Agere or any
of its Subsidiaries; (vii) compliance by Agere and its
Subsidiaries with the express terms of this Agreement or the
failure by Agere or any of its Subsidiaries to take any action
that is prohibited by this Agreement; (viii) changes in
Ageres stock price or the trading volume of Agere stock,
in and of itself; (ix) the failure to meet public estimates
or forecasts of revenues, earnings of other financial metrics,
in and of itself, or the failure to meet internal projections,
forecasts or budgets of revenues, earnings or other financial
metrics, in and of itself; or (x) any legal claims made or
brought by any current or former Agere Stockholders (on their
own behalf or on behalf of Agere) or other Legal Proceedings
arising out of or related to this Agreement or any of the
transactions contemplated hereby.
(o) Agere Preferred Stock shall
mean the Preferred Stock, par value $1.00 per share, of
Agere.
(p) Agere Product shall mean all
products, technologies and services developed (including
products, technologies and services under development), owned,
made, provided, distributed, imported, sold or licensed by or on
behalf of Agere
and/or any
of its Subsidiaries.
(q) Agere Restricted Stock Unit
shall mean any Agere Stock Award that is an award
representing the right to receive in the future shares of Agere
Common Stock from Agere in accordance with a vesting schedule or
issuance schedule.
(r) Agere Rights Plan shall mean
that certain Amended and Restated Rights Agreement between Agere
and Computershare Investor Services, LLC, as Rights Agent, dated
May 27, 2005.
(s) Agere Rights Plan Amendment
means any amendment to the Agere Rights Plan so as to render the
rights issued thereunder inapplicable to this Agreement and the
transactions contemplated by this Agreement.
(t) Agere Stockholders shall mean
holders of shares of Agere Capital Stock.
(u) Business Day shall mean any
day, other than a Saturday, Sunday and any day which is a legal
holiday under the laws of the State of California or New York or
is a day on which banking institutions located in such States
are authorized or required by Legal Requirements or other
governmental action to close.
(v) Closing Average shall mean
the average of the closing sale prices for one share of LSI
Common Stock as quoted on the NYSE for the ten
(10) consecutive trading days ending on the second (2nd)
trading day immediately preceding the Closing Date.
(w) COBRA shall mean the
Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended, and the rules and regulations promulgated thereunder,
or any successor statute, rules and regulations thereto.
(x) Contract shall mean any
contract, subcontract, legally binding agreement or commitment,
note, bond, mortgage, indenture, lease, license, sublicense or
other legally binding obligation, arrangement or understanding,
whether oral or in writing.
A-3
(y) Delaware Law shall mean the
DGCL and any other applicable Legal Requirements of the State of
Delaware.
(z) DOJ shall mean the United
States Department of Justice or any successor thereto.
(aa) DOL shall mean the United
States Department of Labor or any successor thereto.
(bb) EC Merger Regulation shall
mean the Council Regulation No. 4064/89 of the
European Community, as amended.
(cc) Employee Benefit Plan means
any employee pension benefit plan covered under
Section 3(2) of ERISA, any material employee welfare
benefit plan covered under Section 3(1) of ERISA, and
any other material written or oral plan, agreement or
arrangement involving compensation or benefits, including
insurance coverage, severance benefits, disability benefits,
deferred compensation, bonuses, stock options, stock purchase,
phantom stock, stock appreciation or other forms of fringe
benefits, perquisites, incentive compensation or post-retirement
compensation or post-employment compensation and all material
employment, management, consulting, relocation, repatriation,
expatriation, visa, work permit change in control, severance or
similar agreements, written or otherwise, which is or has been
maintained, contributed to or required to be contributed to for
the benefit of, or relating to, any current or former employee,
officer, director or consultant of Agere or any of its
Subsidiaries or LSI, as applicable, or any ERISA Affiliate or
with respect to which any such party has or may have any
Liability.
(dd) Environmental Laws are all
laws (including common laws), directives, guidance, rules,
regulations, orders, treaties, statutes, and codes promulgated
by any Governmental Authority which prohibit, regulate or
control any Hazardous Material or any Hazardous Material
Activity, including the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, the Resource Recovery
and Conservation Act of 1976, the Federal Water Pollution
Control Act, the Clean Air Act, the Hazardous Materials
Transportation Act, the Clean Water Act, the WEEE Directive, or
any foreign Law implementing the WEEE Directive, and the RoHS
Directive or any foreign Law implementing the RoHS Directive,
all as amended at any time.
(ee) ERISA shall mean the
Employee Retirement Income Security Act of 1974, as amended, and
the rules and regulations promulgated thereunder, or any
successor statue, rules and regulations thereto.
(ff) ERISA Affiliate shall mean
any entity which is, or at any applicable time was, a member of
(i) a controlled group of corporations (as defined in
Section 414(b) of the Code), (ii) a group of trades or
businesses under common control (as defined in
Section 414(c) of the Code) or (iii) an affiliated
service group (as defined under Section 414(m) of the Code
or the regulations under Section 414(o) of the Code), any
of which includes or included Agere or LSI, as applicable, or a
Subsidiary of Agere or LSI, as applicable.
(gg) Exchange Act shall mean the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder, or any successor statute,
rules and regulations thereto.
(hh) FTC shall mean the United
States Federal Trade Commission or any successor thereto.
(ii) GAAP shall mean generally
accepted accounting principles, as applied in the United States.
(jj) Governmental Authority shall
mean any government, any governmental or regulatory entity or
body, department, commission, board, agency or instrumentality,
and any court, tribunal or judicial body, in each case whether
federal, state, county, provincial, and whether local or foreign.
(kk) Hazardous Material is any
material, chemical, emission, substance or waste that has been
designated by any Governmental Authority to be radioactive,
toxic, hazardous, corrosive, reactive, explosive, flammable, a
medical or biological waste, a pollutant or otherwise a danger
to health, reproduction or the environment.
(ll) Hazardous Materials Activity
is the transportation, transfer, recycling, storage, use,
treatment, manufacture, removal, remediation, release, exposure
of others to, sale, or distribution of any Hazardous Material or
any product or waste containing a Hazardous Material, or product
manufactured with Ozone
A-4
depleting substances, including any required labeling, payment
of waste fees or charges (including so-called
e-waste
fees) and compliance with any product take-back, collection,
recycling, or product content requirements.
(mm) HSR Act shall mean the
Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the rules
and regulations promulgated thereunder, or any successor
statute, rules and regulations thereto.
(nn) Intellectual Property Rights
shall mean common law and statutory rights anywhere in the
world arising under or associated with (i) patents, patent
applications and inventors certificates
(Patent), (ii) copyrights, copyright
registrations and copyright applications, moral
rights and mask work rights (Copyrights),
(iii) trade and industrial secrets and confidential
information and know-how (Trade Secrets),
(iv) trademarks, trade names and service marks, and any
applications or registration of the same
(Trademarks), (v) other proprietary
rights relating or with respect to the protection of Technology,
(vi) divisions, continuations, renewals, reissuances and
extensions of the foregoing (as applicable), and
(vii) analogous rights to those set forth above, including
the right to enforce and recover damages for the infringement or
misappropriation of any of the foregoing.
(oo) IRS shall mean the United
States Internal Revenue Service or any successor thereto.
(pp) LSI Balance Sheet shall mean
the unaudited balance sheet of LSI contained in the LSI
Quarterly Report on
Form 10-Q
for the quarterly period ended October 1, 2006.
(qq) LSI Board shall mean the
Board of Directors of LSI.
(rr) LSI Bylaws shall mean the
Amended and Restated Bylaws of LSI, as amended and in effect on
the date hereof.
(ss) LSI Common Stock shall mean
the Common Stock, par value $0.01 per share, of LSI.
(tt) LSI Certificate of Incorporation
shall mean the LSI Restated Certificate of Incorporation, as
amended and in effect on the date hereof.
(uu) LSI Employee Plans shall
mean all Employee Benefit Plans maintained, or contributed to by
LSI, any of LSIs Subsidiaries or any of their respective
ERISA Affiliates or to which LSI, any of LSIs Subsidiaries
or any of their respective ERISA Affiliates is obligated to
contribute, or under which any of them has or may reasonably be
likely to have any liability for premiums or benefits or other
obligations.
(vv) LSI Intellectual Property Rights
shall mean shall Intellectual Property Rights that are owned
or purported to be owned by or exclusively licensed to LSI or
its Subsidiaries.
(ww) LSI Material Adverse Effect
shall mean any fact, circumstance, change or effect that,
individually or when taken together with all other such facts,
circumstances, changes or effects that exist at the date of
determination of the occurrence of the LSI Material Adverse
Effect, has or is reasonably likely to have a material adverse
effect on the business, operations, financial condition or
results of operations of LSI and its Subsidiaries, taken as a
whole; provided, however, that no facts, circumstances,
changes or effects (by themselves or when aggregated with any
other facts, circumstances, changes or effects) resulting from,
relating to or arising out of the following shall be deemed to
be or constitute an LSI Material Adverse Effect, and no facts,
circumstances, changes or effects resulting from, relating to or
arising out of the following (by themselves or when aggregated
with any other facts, circumstances, changes or effects) shall
be taken into account when determining whether an LSI Material
Adverse Effect has occurred or may, would or could occur:
(i) economic, financial or political conditions in the
United States or any other jurisdiction in which LSI or any of
its Subsidiaries has substantial business or operations, and any
changes therein (including any changes arising out of acts of
terrorism, war, weather conditions or other force majeure
events), to the extent that such conditions do not have a
materially disproportionate impact on LSI and its Subsidiaries,
taken as a whole, relative to other semiconductor companies of
comparable size; (ii) conditions in the semiconductor
industry, and any changes therein (including any changes arising
out of acts of terrorism, war, weather conditions or other force
majeure events), to the extent that such conditions do not have
a materially disproportionate impact on LSI and its
Subsidiaries, taken as a whole, relative to other semiconductor
companies of comparable size;
A-5
(iii) conditions in the financial markets, and any changes
therein (including any changes arising out of acts of terrorism,
war, weather conditions or other force majeure events), to the
extent that such conditions do not have a materially
disproportionate impact on LSI and its Subsidiaries, taken as a
whole, relative to other semiconductor companies of comparable
size; (iv) acts of terrorism or war; (v) the
announcement or pendency of this Agreement and the transactions
contemplated hereby; (vi) changes in Legal Requirements or
GAAP (or any interpretations of GAAP) applicable to LSI or any
of its Subsidiaries; (vii) compliance by LSI and its
Subsidiaries with the express terms of this Agreement or the
failure by LSI or any of its Subsidiaries to take any action
that is prohibited by this Agreement; (viii) changes in
LSIs stock price or the trading volume of LSI stock,
in and of itself; (ix) the failure to meet public estimates
or forecasts of revenues, earnings of other financial metrics,
in and of itself, or the failure to meet internal projections,
forecasts or budgets of revenues, earnings or other financial
metrics, in and of itself; or (x) any legal claims made or
brought by any current or former LSI Stockholders (on their own
behalf or on behalf of LSI) or other Legal Proceedings arising
out of or related to this Agreement or any of the transactions
contemplated hereby.
(xx) LSI Rights Plan shall mean
that certain Preferred Share Purchase Rights Agreement between
LSI and BankBoston, dated November 20, 1998.
(yy) Legal Proceeding shall mean
any action, claim, suit, litigation, proceeding (public or
private), criminal prosecution, audit or investigation by or
before any Governmental Authority.
(zz) Legal Requirements shall
mean applicable domestic or foreign federal, state, provincial,
local, municipal or other law, statute, treaty, constitution,
principle of common law, binding resolution, ordinance, code,
binding edict, decree, directive, order, rule, regulation,
ruling or requirement issued, enacted, adopted, promulgated,
implemented or otherwise put into effect by or under the
authority of any Governmental Authority.
(aaa) Liabilities shall mean any
liability, obligation or commitment of any kind, whether
absolute, accrued, fixed or contingent, matured or unmatured,
determined or determinable or otherwise and whether or not
required to be recorded or reflected on a balance sheet prepared
in accordance with GAAP.
(bbb) Lien shall mean any lien,
pledge, hypothecation, charge, mortgage, security interest,
encumbrance, claim, interference, option, right of first
refusal, preemptive right, community property interest or
restriction of any nature.
(ccc) NYSE shall mean the New
York Stock Exchange or any successor thereto.
(ddd) Order shall mean any
judgment, decision, decree, injunction, ruling, writ, assessment
or order of any Governmental Authority that is binding on any
Person or its property under applicable Legal Requirements.
(eee) Pension Plan shall mean
each Employee Benefit Plan which is an employee pension
benefit plan, within the meaning of Section 3(2) of
ERISA.
(fff) Person shall mean any
individual, corporation (including any non-profit corporation),
limited liability company, joint stock company, general
partnership, limited partnership, joint venture, estate, trust,
firm or other enterprise, association, organization, entity or
any Governmental Authority.
(ggg) Registered Intellectual
Property means any Intellectual Property Right
that is the subject of a formal application or registration with
any Governmental Authority (or with respect to domain names, any
domain name registrar) including (i) issued Patents,
(ii) registered Copyrights (including maskwork
registrations), (iii) registered Trademarks,
(iv) domain name registrations, and (v) any
applications, including provisional applications, for such
registrations (as applicable).
(hhh) RoHS Directive shall mean
the European Directive 2002/95/EC on the restriction of the use
of certain hazardous substances in electrical and electronic
equipment.
(iii) Sarbanes-Oxley Act shall
mean the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated thereunder, or any successor statute,
rules or regulations thereto.
A-6
(jjj) SEC shall mean the United
States Securities and Exchange Commission or any successor
thereto.
(kkk) Securities Act shall mean
the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, or any successor statute,
rules or regulations thereto.
(lll) Subsidiary of any Person
shall mean, with respect to any party, any corporation or other
organization, whether incorporated or unincorporated, of which
(i) such party or any other Subsidiary of such party is a
general partner, manager or managing member, (ii) such
party or any Subsidiary of such party owns in excess of a
majority of the outstanding equity or voting securities or
interests or (iii) such party or any Subsidiary of such
party has the right to elect at least a majority of the board of
directors or others performing similar functions with respect to
such corporation or other organization.
(mmm) Superior Proposal shall
mean any bona fide written Acquisition Proposal involving
the acquisition of all of the outstanding voting securities of a
party hereto (i) which, if any cash consideration is
involved, is not subject to any financing contingencies (and if
financing is required, such financing is then fully committed to
the third party making such Acquisition Proposal) and
(ii) with respect to which the board of directors of the
applicable party hereto shall have reasonably determined in good
faith (after consultation with a financial advisor of nationally
recognized standing and its outside legal counsel, and after
taking into account, among other things, the financial, legal
and regulatory aspects of such Acquisition Transaction, as well
as any counter-offer or proposal made by the other party hereto)
that (A) the acquiring party is reasonably capable of
timely consummating the proposed Acquisition Transaction on the
terms proposed and without unreasonable delay and (B) the
proposed Acquisition Transaction would, if timely consummated in
accordance with its terms, be more favorable to the stockholders
of the applicable party hereto (in their capacity as such), from
a financial point of view, than the transactions contemplated by
this Agreement (or any counter-offer or proposal made by the
other party hereto).
(nnn) Taxes shall mean any and
all domestic or foreign, federal, state, local or other taxes of
any kind (together with any and all interest, penalties,
additions to tax and additional amounts imposed with respect
thereto) imposed by any Governmental Authority, including taxes
on or with respect to income, franchises, windfall or other
profits, gross receipts, property, sales, use, capital stock,
payroll, employment, unemployment, social security,
workers compensation or net worth, taxes in the nature of
excise, withholding, ad valorem or value added, and any
obligations with respect to such amounts arising as a result of
being a member of an affiliated, consolidated, combined or
unitary group for any period or under any agreements or
arrangements with any other person and including any liability
for taxes of a predecessor or transferor.
(ooo) Tax Return shall mean any
return, report or similar filing (including the attached
schedules) required to be filed with respect to Taxes, including
any information return, claim for refund, amended return or
declaration of estimated Taxes.
(ppp) Technology shall mean any
or all of the following (i) works of authorship including
computer programs, source code, executable code, RTL and
GDS II files, whether embodied in software, firmware or
otherwise, architecture, documentation, designs, files, records,
and data related to the foregoing, (ii) inventions (whether
or not patentable), discoveries, improvements, and technology,
(iii) proprietary and confidential information, trade
secrets and know how, (iv) databases, data compilations and
collections, and technical data, (v) logos, trade names,
trade dress, trademarks and service marks, (vi) domain
names, web addresses and sites, (vii) tools, methods and
processes, (viii) devices, prototypes, schematics,
breadboards, netlists, mask works, test methodologies, verilog
files, emulation and simulation reports, test vectors, and
hardware development tools, and (ix) any and all
instantiations of the foregoing in any form and embodied in any
media.
(qqq) WEEE Directive shall mean
the European Directive 2002/96/EC on waste electrical and
electronic equipment.
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1.2 Additional
Definitions. The following capitalized terms
shall have the respective meanings ascribed thereto in the
respective sections of this Agreement set forth opposite each of
the capitalized terms below:
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Term
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Section Reference
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Affiliate Agreement
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6.18
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Agere
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Preamble
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Agere 2001 Plan
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3.4(a)(ii)
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Agere 401(k) Plans
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6.12(a)
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the Agere Board Recommendation
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6.2(a)
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the Agere Board Recommendation
Change
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6.2(b)
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Agere Disclosure Letter
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Article III
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Agere Employees
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6.13(a)
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Agere Executive Agreement
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6.13(d)
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Agere In Licenses
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3.19(h)
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Agere Insiders
|
|
6.17(c)
|
Agere IP Licenses
|
|
3.19(i)
|
Agere Material Contract
|
|
3.13(a)
|
Agere Non-Employee Director Plan
|
|
3.4(a)
|
Agere
Non-U.S. Employee
Plans
|
|
3.14(k)
|
Agere Out Licenses
|
|
3.19(i)
|
Agere Pension Plan
|
|
3.14(g)
|
Agere Permits
|
|
3.11(b)
|
Agere Qualified Plan
|
|
3.14(e)
|
Agere Real Property Leases
|
|
3.16
|
Agere Registered Intellectual
Property
|
|
3.19(a)
|
Agere Restricted Stock
|
|
2.7(d)(ii)
|
Agere SEC Reports
|
|
3.7(a)
|
Agere Stock Awards
|
|
3.4(c)
|
Agere Stock Option
|
|
2.7(d)(i)
|
Agere Stock Plans
|
|
3.4(b)
|
Agere Stockholder Meeting
|
|
6.3(a)
|
Agere Subordinated Note
|
|
3.4(a)(iii)
|
Agere Subsidiary Documents
|
|
3.3
|
Agere Terminating Plans
|
|
6.12(b)
|
Agere Voting Proposal
|
|
3.5(a)
|
Agreement
|
|
Preamble
|
Antitrust Laws
|
|
6.6(b)
|
Assumed Option
|
|
2.7(d)(i)
|
Assumed Unit
|
|
2.7(d)(iii)
|
Book Entry Shares
|
|
2.8(c)
|
BONY
|
|
5.3
|
Certificate of Merger
|
|
2.3
|
Certificates
|
|
2.8(c)
|
Closing
|
|
2.2
|
Closing Date
|
|
2.2
|
Code
|
|
Preamble
|
A-8
|
|
|
Term
|
|
Section Reference
|
|
Common Stock Consideration
|
|
2.7(a)(i)
|
Confidentiality Agreement
|
|
6.7(h)
|
D&O Policy
|
|
6.15(c)
|
Delaware Secretary of State
|
|
2.3
|
DGCL
|
|
Preamble
|
Effective Time
|
|
2.3
|
Exchange Agent
|
|
2.8(a)
|
Exchange Fund
|
|
2.8(b)
|
Exchange Ratio
|
|
2.7(a)(i)
|
Extended Termination Date
|
|
8.1(c)
|
Indemnified Parties
|
|
6.14(b)
|
Indenture
|
|
5.3
|
Initial Termination Date
|
|
8.1(c)
|
Joint Proxy Statement/Prospectus
|
|
6.4(a)
|
LSI
|
|
Preamble
|
the LSI Board Recommendation
|
|
6.2(a)
|
the LSI Board Recommendation Change
|
|
6.2(a)
|
LSI Convertible Notes
|
|
4.4(a)(v)
|
LSI Disclosure Letter
|
|
Article IV
|
LSI ESPP
|
|
4.4(a)(iv)
|
LSI In Licenses
|
|
4.19(h)
|
LSI IP Licenses
|
|
4.19(a)
|
LSI Material Contract
|
|
4.13(a)
|
LSI
Non-U.S. Employee
Plans
|
|
4.14(k)
|
LSI Out Licenses
|
|
4.19(i)
|
LSI Pension Plan
|
|
4.14(g)
|
LSI Permits
|
|
4.11(b)
|
LSI Preferred Stock
|
|
4.4(a)
|
LSI Qualified Plan
|
|
4.14(e)
|
LSI Real Property Leases
|
|
4.16
|
LSI Registered Intellectual
Property
|
|
4.19(a)
|
LSI SEC Reports
|
|
4.7(a)
|
LSI 2003 Stock Plan
|
|
4.4(a)(iii)
|
LSI Stock Plans
|
|
4.4(b)
|
LSI Stockholder Meeting
|
|
6.3(a)
|
LSI Stockholder Proposal
|
|
6.2(a)
|
LSI Subsidiary Documents
|
|
4.3
|
LSI Voting Proposal
|
|
4.5(a)
|
Maximum Annual Premium
|
|
6.14(c)
|
Merger
|
|
Preamble
|
Merger Stockholder Meetings
|
|
6.3(a)
|
Merger Sub
|
|
Preamble
|
PBGC
|
|
3.14(g)
|
PBGC Claims
|
|
3.14(g)
|
A-9
|
|
|
Term
|
|
Section Reference
|
|
Qualifying Amendment
|
|
6.4(b)
|
Registration Statement
|
|
6.4(a)
|
Regulation M-A Filing
|
|
6.4(c)
|
Requisite Agere Stockholder
Approval
|
|
3.5(b)
|
Requisite LSI Stockholder Approval
|
|
4.5(b)
|
Section 16 Information
|
|
6.17(b)
|
Surviving Corporation
|
|
2.1
|
Takeover Statute
|
|
3.24
|
Tax Opinions
|
|
6.19(b)
|
Termination Fee Amount
|
|
8.3(b)(i)
|
Triggering Event
|
|
8.1(f)
|
WARN Act
|
|
3.15(c)
|
1.3 Certain Interpretations.
(a) Unless otherwise indicated, all references herein to
Articles, Sections, Exhibits or Letters shall be deemed to refer
to Articles, Sections, Exhibits or Letters of or to this
Agreement, as applicable.
(b) Unless otherwise indicated, the words
include, includes and
including, when used herein, shall be deemed in each
case to be followed by the words without limitation.
(c) The table of contents and headings set forth in this
Agreement are for convenience of reference purposes only and
shall not affect or be deemed to affect in any way the meaning
or interpretation of this Agreement or any term or provision
hereof.
(d) When reference is made herein to a Person, such
reference shall be deemed to include all direct and indirect
Subsidiaries of such Person unless otherwise indicated or the
context otherwise requires.
(e) The parties hereto agree that they have been
represented by counsel during the negotiation and execution of
this Agreement and, therefore, waive the application of any
Legal Requirement, holding or rule of construction providing
that ambiguities in an agreement or other document will be
construed against the party drafting such agreement or document.
ARTICLE II
THE MERGER
2.1 The Merger. Upon the
terms and subject to the conditions set forth in this Agreement
and the applicable provisions of the DGCL, on the Closing Date
and at the Effective Time Merger Sub shall be merged with and
into Agere, the separate corporate existence of Merger Sub shall
thereupon cease and Agere shall continue as the surviving
corporation of the Merger. Agere, as the surviving corporation
of the Merger, is sometimes referred to herein as the
Surviving Corporation.
2.2 The Closing. The
consummation of the Merger (the
Closing) shall take place at a closing
to occur at the offices of Wilson Sonsini Goodrich &
Rosati, Professional Corporation, 650 Page Mill Road, Palo
Alto, California, 94304, on a date and at a time to be agreed
upon by LSI and Agere, which date shall be no later than the
second (2nd) Business Day after the satisfaction or waiver (to
the extent permitted hereunder) of the last to be satisfied or
waived of the conditions set forth in Article VII
(other than those conditions that by their terms are to be
satisfied at the Closing, but subject to the satisfaction or
waiver (to the extent permitted hereunder), of such conditions),
or at such other location, date and time as LSI and Agere shall
mutually agree upon in writing. The date upon which the Closing
shall actually occur pursuant hereto is referred to herein as
the Closing Date.
2.3 The Effective Time. Upon
the terms and subject to the conditions set forth in this
Agreement, on the Closing Date, LSI and Agere shall cause the
Merger to be consummated under the DGCL by filing a certificate
of
A-10
merger in customary form and substance (the Certificate
of Merger) with the Secretary of State of the State of
Delaware (the Delaware Secretary of State) in
accordance with the applicable provisions of the DGCL. The time
of such filing and acceptance by the Delaware Secretary of
State, or such later time as may be agreed in writing by LSI and
Agere and specified in the Certificate of Merger is referred to
herein as the Effective Time.
2.4 Effect of the
Merger. The effect of the Merger shall be as
provided in this Agreement and the applicable provisions of the
DGCL. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time all of the property,
rights, privileges, powers and franchises of Agere and Merger
Sub shall vest in the Surviving Corporation, and all debts,
liabilities and duties of Agere and Merger Sub shall become the
debts, liabilities and duties of the Surviving Corporation.
2.5 Certificate of Incorporation and
Bylaws.
(a) Certificate of
Incorporation. Subject to the terms of
Section 6.14(b), at the Effective Time, the
Certificate of Incorporation of Agere shall be amended and
restated in its entirety to read identically to the Certificate
of Incorporation of Merger Sub, as in effect immediately prior
to the Effective Time, and such amended and restated Certificate
of Incorporation shall become the Certificate of Incorporation
of the Surviving Corporation until thereafter amended in
accordance with the applicable provisions of the DGCL and such
Certificate of Incorporation; provided, however, that at
the Effective Time the Certificate of Incorporation of the
Surviving Corporation shall be amended so that the name of the
Surviving Corporation shall be Agere Systems Inc.
(b) Bylaws. Subject to the terms
of Section 6.14(b), at the Effective Time, the
Bylaws of Merger Sub, as in effect immediately prior to the
Effective Time, shall become the Bylaws of the Surviving
Corporation until thereafter amended in accordance with the
applicable provisions of the DGCL, the Certificate of
Incorporation of the Surviving Corporation and such Bylaws.
2.6 Directors and Officers.
(a) Directors. At the Effective
Time, the initial directors of the Surviving Corporation shall
be the directors of Merger Sub immediately prior to the
Effective Time, each to hold office in accordance with the
Certificate of Incorporation and Bylaws of the Surviving
Corporation until their respective successors are duly elected
or appointed and qualified.
(b) Officers. At the Effective
Time, the initial officers of the Surviving Corporation shall be
the officers of Merger Sub immediately prior to the Effective
Time, each to hold office in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation until
their respective successors are duly appointed.
2.7 Effect on Capital Stock.
(a) Capital Stock of Constituent
Companies. Upon the terms and subject to the
conditions set forth in this Agreement, at the Effective Time,
by virtue of the Merger and without any action on the part of
LSI, Merger Sub, Agere, or the holders of any of the following
securities, the following shall occur:
(i) Agere Common Stock. Other than
as set forth in Section 2.7(d), each share of Agere
Common Stock that is outstanding immediately prior to the
Effective Time (other than shares of Agere Common Stock owned by
LSI, Merger Sub or Agere, or by any direct or indirect wholly
owned Subsidiary of LSI, Merger Sub or Agere, in each case
immediately prior to the Effective Time) shall be canceled and
extinguished and automatically converted into the right to
receive 2.16 shares of LSI Common Stock and the associated
rights issued under the LSI Rights Plan (the Exchange
Ratio) and the cash payable in lieu of fractional
shares pursuant to Section 2.7(c) (the
Common Stock Consideration) upon the
surrender of the certificate, if any, representing such share of
Agere Common Stock in the manner provided in
Section 2.8 (or in the case of a lost, stolen or
destroyed certificate, upon delivery of an affidavit (and bond,
if required) in the manner provided in Section 2.10).
(ii) Certain Owned Agere Common
Stock. Each share of Agere Common Stock that
is owned by LSI, Merger Sub or Agere, or by any direct or
indirect wholly owned Subsidiary of LSI, Merger Sub or Agere, in
each case immediately prior to the Effective Time, shall be
cancelled and extinguished without any conversion thereof or
consideration paid therefor.
A-11
(iii) Capital Stock of Merger
Sub. Each share of common stock, par value
$0.001 per share, of Merger Sub that is outstanding
immediately prior to the Effective Time shall be converted into
one validly issued, fully paid and nonassessable share of common
stock of the Surviving Corporation. Each certificate evidencing
ownership of such shares of common stock of Merger Sub shall
thereafter evidence ownership of shares of common stock of the
Surviving Corporation.
(b) Adjustment to Exchange
Ratio. The Exchange Ratio shall be
appropriately adjusted to reflect fully the effect of any stock
split, reverse stock split, stock dividend (including any
dividend or distribution of securities convertible into LSI
Common Stock or Agere Common Stock), reorganization,
recapitalization, reclassification or other like change with
respect to LSI Common Stock or Agere Common Stock having a
record date on or after the date hereof and prior to the
Effective Time.
(c) Fractional Shares. No fraction
of a share of LSI Common Stock will be issued by virtue of the
Merger, but in lieu thereof each holder of record of shares of
Agere Common Stock who would otherwise be entitled to a fraction
of a share of Agere Common Stock pursuant to this
Section 2.7 (after aggregating all fractional shares
of LSI Common Stock that otherwise would be received by such
holder of record) shall, upon the surrender of the certificate,
if any, representing such share of Agere Common Stock in the
manner provided in Section 2.8 (or in the case of a
lost, stolen or destroyed certificate, upon delivery of an
affidavit (and bond, if required) in the manner provided in
Section 2.10), receive from LSI an amount of cash
(rounded to the nearest whole cent), without interest, equal to
the product obtained by multiplying such fraction by the closing
price of LSI Common Stock on the trading day immediately
preceding the Closing Date.
(d) Agere Stock Awards.
(i) At the Effective Time, each Agere Stock Award that is a
stock option to purchase shares of Agere Common Stock (each a
Agere Stock Option) that is outstanding
immediately prior to the Effective Time, whether or not then
vested or exercisable (each, an Assumed
Option), shall be assumed by LSI. Each Assumed Option
shall be converted into an option to acquire that number of
shares of LSI Common Stock equal to the product obtained by
multiplying (x) the number of shares of Agere Common Stock
subject to such Agere Stock Option and (y) the Exchange
Ratio, rounded up to the nearest whole share of LSI Common
Stock. Each Assumed Option shall have an exercise price per
share equal to the quotient obtained by dividing (x) the
per share exercise price of Agere Common Stock subject to such
Assumed Option by (y) the Exchange Ratio (which price per
share shall be rounded up to the nearest one-hundredth of one
cent). Each Assumed Option shall otherwise be subject to the
same terms and conditions (including as to vesting and
exercisability) as were applicable under the respective Agere
Stock Option immediately prior to the Effective Time. It is the
intention of the parties that each Assumed Option that qualified
as a United States-based incentive stock option (as defined in
Section 422 of the Code) shall continue to so qualify, to
the maximum extent permissible, following the Effective Time.
For employees of Agere or its Subsidiaries located outside of
the U.S., to the extent required to ensure compliance with
applicable local laws, LSI may require that outstanding options
be exercised only by a cashless exercise pursuant to which
employees will authorize a broker to sell all shares that they
are entitled to at exercise immediately upon exercise and
receive the difference between the market value of the shares at
exercise and the exercise price in cash.
(ii) If any shares of Agere Common Stock outstanding
immediately prior to the Effective Time are unvested or subject
to a repurchase option or obligation, risk of forfeiture or
other condition under any applicable restricted stock purchase
agreement or other agreement with Agere or under which Agere has
any rights (the Agere Restricted Stock), then
the Common Stock Consideration payable in exchange for such
Agere Restricted Stock also shall be unvested and subject to the
same repurchase option or obligation, risk of forfeiture or
other condition and need not be paid until such time as such
repurchase option, risk of forfeiture or other condition lapses
or otherwise terminates, and the certificates representing such
shares of Agere Restricted Stock may accordingly be marked with
appropriate legends. Prior to the Effective Time, Agere shall
take all action that may be necessary to ensure that, from and
after the Effective Time, LSI is entitled to exercise any such
repurchase option or other right set forth in any such
restricted stock purchase agreement or other agreement.
(iii) At the Effective Time, each Agere Restricted Stock
Unit that is outstanding immediately prior to the Effective
Time, whether or not then vested or issuable (each, an
Assumed Unit), shall be assumed by LSI. Each
Assumed Unit shall be converted into an award to receive that
number of shares of LSI Common Stock equal to the
A-12
product obtained by multiplying (x) the number of shares of
Agere Common Stock subject to such Assumed Unit immediately
prior to the Effective Time by (x) the Exchange Ratio,
rounded up, if necessary, to the nearest whole share of LSI
Common Stock. Each Assumed Unit that was granted with a purchase
price equal to Agere par value or with no purchase price shall
have a purchase price equal to LSI par value, which LSI shall
deem paid by virtue of past services rendered by the holder of
such Assumed Unit. Each Assumed Unit that was granted with a
purchase price other than Agere par value shall have a purchase
price per share equal to the quotient obtained by dividing
(x) the per share purchase price of Agere Common Stock
subject to such Assumed Unit by (y) the Exchange Ratio
(which price per share shall be rounded down to the nearest
one-hundredth of one cent). Each Assumed Unit shall otherwise be
subject to the same terms and conditions (including as to
vesting and issuance) as were applicable under the respective
Agere Restricted Stock Unit immediately prior to the Effective
Time; except that with respect to any Restricted Stock Unit
which vests upon a specified date or dates if performance based
criteria are achieved, achievement of such criteria shall be
waived and the Restricted Stock Unit shall vest otherwise in
accordance with its terms and conditions over the applicable
period.
2.8 Exchange of Certificates.
(a) Exchange Agent. Prior to the
Closing Date, LSI shall select a bank or trust company
reasonably acceptable to Agere to act as the exchange agent for
the Merger pursuant to an exchange agent agreement in form and
substance reasonably satisfactory to Agere (the
Exchange Agent).
(b) LSI to Provide Common
Stock. As promptly as practicable (and in any
event within two (2) Business Days) following the Effective
Time, LSI shall make available to the Exchange Agent for
exchange in accordance with this Article II, the
shares of LSI Common Stock issuable pursuant to
Section 2.7(a) in exchange for shares of Agere
Common Stock. In addition, LSI shall make available from time to
time after the Effective Time as necessary, cash in an amount
sufficient to pay any cash payable in lieu of fractional shares
pursuant to Section 2.7(c) and any dividends or
distributions to which holders of shares of Agere Common Stock
may be entitled pursuant to Section 2.8(d). Any LSI
Common Stock and cash deposited with the Exchange Agent shall
hereinafter be referred to as the Exchange
Fund.
(c) Exchange Procedures. As
promptly as practicable following the Effective Time, LSI shall
cause the Exchange Agent to mail to each holder of record (as of
immediately prior to the Effective Time) of a certificate or
certificates (the Certificates) which
immediately prior to the Effective Time represented outstanding
shares of Agere Common Stock (or effective affidavits of loss in
lieu thereof) or non-certificated shares of Agere Common Stock
represented by book entry (Book Entry Shares)
(i) a letter of transmittal in customary form as Agere and
LSI may reasonably agree (which shall specify that delivery
shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates
(or effective affidavits in lieu thereof) or Book Entry Shares
to the Exchange Agent) and (ii) instructions for use in
effecting the surrender of the Certificates or Book Entry Shares
in exchange for certificates representing whole shares of LSI
Common Stock pursuant to Section 2.7(a), cash
payable in respect thereof in lieu of any fractional shares
pursuant to Section 2.7(c) and any dividends or
other distributions payable in respect thereof pursuant to
Section 2.8(d). With respect to uncertificated
shares of Agere Common Stock held through direct
registration, LSI shall implement procedures with the
Exchange Agent for effecting the exchange of such directly
registered uncertificated shares of Agere Common Stock and
payment of cash in lieu of any fractional shares pursuant to
Section 2.7(a), as promptly as practicable after the
Effective Time. Upon surrender of Certificates (or effective
affidavits in lieu thereof) or Book Entry Shares for
cancellation to the Exchange Agent or to such other agent or
agents as may be appointed by LSI, together with such letter of
transmittal, duly completed and validly executed in accordance
with the instructions thereto, the holders of such Certificates
or Book Entry Shares shall be entitled to receive in exchange
therefor the number of whole shares of LSI Common Stock (after
taking into account all Certificates or such Book Entry Shares
surrendered by such holder of record) to which such holder is
entitled pursuant to Section 2.7(a) (which, at the
election of LSI, may be in uncertificated book entry form unless
a physical certificate is requested by the holder of record or
is otherwise required by applicable Legal Requirements), payment
in lieu of fractional shares to which such holder is entitled
pursuant to Section 2.7(c) and any dividends or
distributions to which such holder is entitled pursuant to
Section 2.8(d), and the Certificates so surrendered
shall forthwith be canceled. The Exchange Agent shall accept
such Certificates or Book Entry Shares upon compliance with such
reasonable terms and conditions as the Exchange Agent may impose
to effect an orderly exchange thereof in accordance with normal
exchange
A-13
practices. No interest shall be paid or accrued for the benefit
of holders of the Certificates or Book Entry Shares on the cash
amounts payable upon the surrender of such Certificates or such
Book Entry Shares pursuant to this Section 2.8.
Until so surrendered, from and after the Effective Time
outstanding Certificates or Book Entry Shares shall be deemed to
evidence only the ownership of the number of full shares of LSI
Common Stock into which such shares of Agere Common Stock shall
have been so converted and the right to receive an amount in
cash in lieu of the issuance of any fractional shares in
accordance with Section 2.7(c) and any dividends or
distributions payable pursuant to Section 2.8(d).
(d) Distributions With Respect to Unexchanged
Shares. Whenever a dividend or other
distribution is declared or made after the date hereof with
respect to LSI Common Stock with a record date after the
Effective Time, such declaration shall include a dividend or
other distribution in respect of all shares of LSI Common Stock
issuable pursuant to this Agreement. No dividends or other
distributions declared or made after the date hereof with
respect to LSI Common Stock with a record date after the
Effective Time will be paid to the holders of any unsurrendered
Certificates or Book Entry Shares with respect to the shares of
LSI Common Stock represented thereby until the holders of record
of such Certificates or such Book Entry Shares shall surrender
such Certificates or such Book Entry Shares. Subject to
applicable Legal Requirements, following surrender of any such
Certificates or such Book Entry Shares, the Exchange Agent shall
deliver to the record holders thereof, without interest,
promptly after such surrender, the number of whole shares of LSI
Common Stock issued in exchange therefor along with any such
dividends or other distributions with a record date after the
Effective Time and theretofore paid with respect to such whole
shares of LSI Common Stock.
(e) Transfers of Ownership. In the
event that a transfer of ownership of shares of Agere Common
Stock is not registered in the stock transfer books or ledger of
Agere, or if shares of LSI Common Stock are to be issued in a
name other than that in which the Certificates surrendered in
exchange therefor are registered, it will be a condition of the
issuance thereof that the Certificates so surrendered are
properly endorsed and otherwise in proper form for surrender and
transfer and the Person requesting such payment has paid to LSI
(or any agent designated by LSI) any transfer or other Taxes
required by reason of the issuance of shares of LSI Common Stock
in any name other than that of the registered holder of the
Certificates surrendered, or established to the satisfaction of
LSI (or any agent designated by LSI) that such transfer or other
Taxes have been paid or are otherwise not payable.
(f) Required Withholding. Each of
the Exchange Agent, LSI and the Surviving Corporation shall be
entitled to deduct and withhold from any consideration payable
or otherwise deliverable pursuant to this Agreement such amounts
as may be required to be deducted or withheld therefrom under
applicable Legal Requirements. To the extent that such amounts
are so deducted or withheld, such amounts shall be treated for
all purposes under this Agreement as having been paid to the
Person to whom such amounts would otherwise have been paid.
(g) No Liability. Notwithstanding
anything to the contrary set forth in this Agreement, none of
the Exchange Agent, LSI, the Surviving Corporation or any other
party hereto shall be liable to a holder of shares of LSI Common
Stock or Agere Common Stock for any amount properly paid to a
public official pursuant to any applicable abandoned property,
escheat or other similar Legal Requirement.
(h) Termination of Exchange
Fund. Any portion of the Exchange Fund which
remains undistributed to the holders of Certificates or Book
Entry Shares twelve (12) months after the Effective Time
shall, at the request of the Surviving Corporation, be delivered
to the Surviving Corporation or otherwise according to the
instruction of the Surviving Corporation, and any holders of the
Certificates or Book Entry Shares who have not surrendered such
Certificates or Book Entry Shares in compliance with this
Section 2.8 shall after such delivery to Surviving
Corporation look only to the Surviving Corporation for delivery
or payment of the shares of LSI Common Stock issuable in respect
thereof pursuant to Section 2.7(a), cash in lieu of
any fractional shares payable in respect thereof pursuant to
Section 2.7(c) and any dividends or other
distributions payable in respect thereof pursuant to
Section 2.8(d).
2.9 No Further Ownership Rights in Agere Common
Stock. From and after the Effective Time, all
shares of Agere Common Stock shall no longer be outstanding and
shall automatically be cancelled, retired and cease to exist,
and each holder of a Certificate or Book Entry Shares
theretofore representing any shares of Agere Common Stock shall
cease to have any rights with respect thereto, except the right
to receive the shares of LSI Common Stock issuable in respect
thereof pursuant to Section 2.7(a) and
Section 2.7(d), cash in lieu of any fractional
shares
A-14
payable in respect thereof pursuant to
Section 2.7(c) and any dividends or other
distributions payable in respect thereof pursuant to
Section 2.8(d). All shares of LSI Common Stock
issued upon the surrender for exchange of shares of Agere Common
Stock in accordance with the terms hereof (including any cash
paid in respect thereof pursuant to Section 2.7(c)
and any dividends or other distributions paid in respect thereof
pursuant to Section 2.8(d)) shall be deemed to have
been issued in full satisfaction of all rights pertaining to
such shares of Agere Common Stock, and there shall be no further
registration of transfers on the records of the Surviving
Corporation of shares of Agere Common Stock which were
outstanding immediately prior to the Effective Time. If, after
the Effective Time, Certificates are presented to the Surviving
Corporation for any reason, then such Certificates shall be
canceled and exchanged as provided in this
Article II.
2.10 Lost, Stolen or Destroyed
Certificates. In the event that any
Certificates shall have been lost, stolen or destroyed, the
Exchange Agent shall issue in exchange for such lost, stolen or
destroyed Certificates, upon the making of an affidavit of that
fact by the holder thereof, the shares of LSI Common Stock
issuable in respect thereof pursuant to
Section 2.7(a), the cash in lieu of fractional
shares payable in respect thereof pursuant to
Section 2.7(c) and any dividends or distributions
payable in respect thereof pursuant to
Section 2.8(d); provided, however, that LSI
may, in its discretion and as a condition precedent to the
issuance thereof, require the owners of such lost, stolen or
destroyed Certificates to deliver a bond in such sum as it may
reasonably direct as indemnity against any claim that may be
made against LSI, the Surviving Corporation or the Exchange
Agent with respect to the Certificates alleged to have been
lost, stolen or destroyed.
2.11 Further Action. If, at
any time after the Effective Time, any further action is
necessary or desirable to carry out the purposes or intent of
this Agreement and to vest the Surviving Corporation with full
right, title and possession to all assets, property, rights,
privileges, powers and franchises of Agere and Merger Sub, the
directors and officers of Agere and Merger Sub shall have the
authority to take all such lawful and necessary action.
ARTICLE III
REPRESENTATIONS
AND WARRANTIES OF AGERE
Except (i) as set forth in the disclosure letter delivered
by Agere to LSI dated as of the date hereof (the Agere
Disclosure Letter), which expressly identifies the
Section (or, if applicable, subsection) to which such
exception relates (it being understood and hereby agreed that
any disclosure in the Agere Disclosure Letter relating to one
Section or subsection shall also apply to any other Sections and
subsections if and to the extent that it is reasonably apparent
on the face of such disclosure (without reference to the
underlying documents referenced therein) that such disclosure
also relates to such other Sections or subsections), or
(ii) as set forth in any Agere SEC Reports filed with the
SEC prior to the date hereof (other than in any risk
factors or other forward looking statements included
therein), Agere hereby represents and warrants to LSI and Merger
Sub as follows:
3.1 Organization and
Qualification. Agere is duly organized,
validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and
authority necessary to own, lease and operate the properties it
purports to own, lease or operate and to carry on its business
as it is presently being conducted. Agere is duly qualified or
licensed as a foreign corporation to do business, and is in good
standing, in each jurisdiction where the character or location
of the properties owned, leased or operated by it or the nature
of its activities makes such qualification or licensing
necessary, except to the extent that the failure to be so
qualified or licensed and in good standing would not reasonably
be expected to have, individually or in the aggregate, an Agere
Material Adverse Effect.
3.2 Subsidiaries. A complete
and accurate list of all of the Subsidiaries of Agere, together
with the jurisdiction of incorporation of each Subsidiary and
the percentage of each Subsidiarys outstanding capital
stock owned by Agere or another Subsidiary or affiliate of
Agere, is set forth in Section 3.2 of the Agere
Disclosure Letter. Agere does not directly or indirectly own any
equity or similar interest in, or any interest convertible into
or exchangeable or exercisable for any equity or similar
interest in, any Person, excluding securities in any publicly
traded company held for investment by Agere and comprising less
than one percent of the outstanding stock of such company. Each
Subsidiary of Agere is duly organized, validly existing and in
good standing under the Legal Requirements of its jurisdiction
of organization (to the extent such concepts
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exist in such jurisdictions) and has all requisite corporate or
other power and authority necessary to own, lease and operate
the properties it purports to own, lease or operate and to carry
on its business as it is presently being conducted, except to
the extent that the failure to be so organized or existing or in
good standing or have such power or authority would not
reasonably be expected to have, individually or in the
aggregate, an Agere Material Adverse Effect. Each Subsidiary of
Agere is duly qualified or licensed as a foreign corporation to
do business, and is in good standing, in each jurisdiction (to
the extent such concepts exist in such jurisdictions) where the
character or location of the properties owned, leased or
operated by it or the nature of its activities makes such
qualification or licensing necessary, except to the extent that
the failure to be so qualified or licensed and in good standing
would not reasonably be expected to have, individually or in the
aggregate, an Agere Material Adverse Effect.
3.3 Certificate of Incorporation and
Bylaws. Agere has heretofore made available
to LSI a complete and accurate copy of the Agere Certificate of
Incorporation and Agere Bylaws. The Agere Certificate of
Incorporation and Agere Bylaws, and the charter and bylaws (or
equivalent organizational documents), each as amended to date,
of each of its Subsidiaries (the Agere Subsidiary
Documents) are in full force and effect, and neither
the Agere Board nor, to the knowledge of Agere, any Agere
Stockholder has taken any action to amend the Agere Certificate
of Incorporation or the Agere Bylaws in any respect. Agere has
not taken any action in breach or violation of any of the
provisions of the Agere Certificate of Incorporation or the
Agere Bylaws, and each Subsidiary is not in breach or violation
of any of the material provisions of their respective Agere
Subsidiary Documents, except, in the case of a Subsidiary, as
would not reasonably be expected to have, individually or in the
aggregate, an Agere Material Adverse Effect.
3.4 Capitalization.
(a) The authorized capital stock of Agere consists of
1,000,000,000 shares of Agere Common Stock, and
250,000,000 shares of Agere Preferred Stock. As of
November 30, 2006, (i) 167,741,924 shares of
Agere Common Stock were issued and outstanding,
(ii) 39,434,522 shares of Agere Common Stock were
reserved for issuance pursuant to awards granted pursuant to
Ageres 2001 Long-Term Incentive Plan (the Agere
2001 Plan), (iii) 490,413 shares of Agere
Common Stock were reserved for issuance pursuant to awards
granted pursuant to Ageres Non-Employee Director Stock
Plan (the Agere Non-Employee Director Plan),
(iv) 4,855,663 shares of Agere Common Stock were
available for purchase pursuant to Ageres ESPP,
(v) 10,934,543 shares of Common Stock were issuable
upon conversion of Ageres 6.5% Convertible
Subordinated Notes due December 15, 2009 (the
Agere Subordinated Notes), (vi) no
shares of Agere Common Stock were issued and held in the
treasury of Agere; and (vii) no shares of Preferred Stock
are issued and outstanding. Since November 30, 2006, Agere
has not issued any securities (including derivative securities)
except for shares of Agere Common Stock issued upon exercise of
Agere Stock Awards, the vesting of Agere Restricted Stock Units
or the matching of contributions to or otherwise in connection
with 401(k) arrangements.
(b) Section 3.4(b) of the Agere Disclosure
Letter sets forth a complete and accurate list of all stock
option plans or any other plan or agreement adopted by Agere
that provides for the issuance of equity to any Person (the
Agere Stock Plans). Agere has made available
to LSI complete and accurate copies of all Agere Stock Plans and
the forms of all award agreements evidencing outstanding Agere
Stock Awards.
(c) Section 3.4(c) of the Agere Disclosure
Letter sets forth a complete and accurate list as of the date
hereof of all outstanding equity-based awards, whether payable
in stock, cash or other property or any combination of the
foregoing (the Agere Stock Awards) granted
under any Agere Stock Plans or otherwise, indicating, with
respect to each Agere Stock Award then outstanding, the type of
awards granted, the number of shares of Agere Common Stock
subject to such Agere Stock Award, the plan under which such
Agere Stock Award was granted and the exercise or purchase price
(if any), date of grant, vesting schedule and expiration date
thereof, including the extent to which any vesting had occurred
as of the date of this Agreement and whether (and to what
extent) the vesting of such Agere Stock Award will be
accelerated in any way by the consummation of the transactions
contemplated by this Agreement.
(d) Except as described in Section 3.4(a) of
this Agreement, no capital stock of Agere or any of its
Subsidiaries or any security convertible or exchangeable into or
exercisable for such capital stock, is issued,
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reserved for issuance or outstanding as of the date of this
Agreement. Except as described in Section 3.4(c) of
this Agreement and except for changes since the date of this
Agreement resulting from the exercise of employee stock options
outstanding on such date or described on
Section 3.4(c) of the Agere Disclosure Letter, there
are no exercisable securities, there are no options, preemptive
rights, warrants, calls, rights, commitments, agreements,
arrangements or understandings of any kind to which Agere or any
of its Subsidiaries is a party, or by which Agere or any of its
Subsidiaries is bound, obligating Agere or any of its
Subsidiaries to issue, deliver or sell, or cause to be issued,
delivered or sold, additional shares of capital stock of Agere
or any of its Subsidiaries or obligating Agere or any of its
Subsidiaries to grant, extend or accelerate the vesting of or
enter into any such option, warrant, call, right, commitment,
agreement, arrangement or understanding. There are no
stockholder agreements, voting trusts, proxies or other similar
agreements, arrangements or understandings to which Agere or any
of its Subsidiaries is a party, or by which it or they are
bound, obligating Agere or any of its Subsidiaries with respect
to any shares of capital stock of Agere or any of its
Subsidiaries. There are no rights or obligations, contingent or
otherwise (including rights of first refusal in favor of Agere),
of Agere or any of its Subsidiaries, to repurchase, redeem or
otherwise acquire any shares of capital stock of Agere or any of
its Subsidiaries or to provide funds to or make any investment
(in the form of a loan, capital contribution or otherwise) in
any such Subsidiary or any other entity. There are no
registration rights or other agreements, arrangements or
understandings to which Agere or any of its Subsidiaries is a
party, or by which it or they are bound, obligating Agere or any
of its Subsidiaries with respect to any shares of Agere Common
Stock or shares of capital stock of any such Subsidiary.
(e) All outstanding shares of Agere Common Stock are, and
all shares of Agere Common Stock reserved for issuance as
specified above will be, upon issuance on the terms and
conditions specified in the instruments pursuant to which they
are issuable, duly authorized, validly issued, fully paid and
nonassessable and not subject to or issued in violation of any
purchase option, call option, right of first refusal, preemptive
right, subscription right or any similar right under any
provision of the DGCL, the Agere Certificate of Incorporation or
the Agere Bylaws or any agreement to which Agere is a party or
otherwise bound. None of the outstanding shares of Agere Common
Stock have been issued in violation of any United States federal
or state securities laws. All of the outstanding shares of
capital stock of each of the Subsidiaries of Agere are duly
authorized, validly issued, fully paid and nonassessable, and
all such shares (other than directors qualifying shares in
the case of foreign Subsidiaries) are owned by Agere or a
Subsidiary of Agere free and clear of any and all Liens. There
are no accrued and unpaid dividends with respect to any
outstanding shares of capital stock of Agere or any of its
Subsidiaries.
(f) Agere Common Stock constitutes the only class of equity
securities of Agere or its Subsidiaries registered or required
to be registered under the Exchange Act.
3.5 Authority; Requisite Agere Stockholder
Approval.
(a) Agere has full corporate power and authority to execute
and deliver this Agreement and, subject only to the approval of
the stockholders of Agere as described below, to consummate the
transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly approved by the
Agere Board. As of the date of this Agreement, the Agere Board
has determined by unanimous vote of the directors voting that
this Agreement and the transactions contemplated hereby
(including the Merger) are advisable and in the best interests
of the Agere stockholders and has by unanimous vote of the
directors voting determined to recommend that the Agere
Stockholders adopt this Agreement (the Agere Voting
Proposal). This Agreement has been duly and validly
executed and delivered by Agere, and assuming due authorization,
execution and delivery by LSI and Merger Sub, this Agreement
constitutes a valid and binding obligation of Agere, enforceable
against Agere in accordance with its terms.
(b) Except for the approval of the Agere Voting Proposal by
the affirmative vote of the holders of a majority of the
outstanding shares of Agere Common Stock entitled to vote at a
meeting of the Agere Stockholders called to consider the Agere
Voting Proposal (the Requisite Agere Stockholder
Approval), no other corporate proceedings on the part
of Agere are necessary to approve or adopt this Agreement under
applicable Legal Requirements and to consummate the transactions
contemplated hereby.
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3.6 Required Filings and Consents.
(a) The execution and delivery by Agere of this Agreement
do not, and the performance by Agere of its covenants and
agreements under this Agreement and the consummation by Agere of
the transactions contemplated by this Agreement will not,
(i) assuming receipt of the Requisite Agere Stockholder
Approval conflict with or violate the Agere Certificate of
Incorporation or the Agere Bylaws or any Agere Subsidiary
Documents, (ii) assuming receipt of the government
approvals contemplated by Section 3.6(b) conflict
with or violate any Legal Requirements applicable to Agere or
any of its Subsidiaries or by which its or any of their
respective properties is bound or affected, (iii) require
notice to or the consent of any Person under, result in any
breach of or constitute a default (or an event that with notice
or lapse of time or both would become a default), or impair
Ageres or any of its Subsidiaries rights or alter
the rights or obligations of any third party under, or give to
any third party any rights of termination, amendment, payment,
acceleration or cancellation of, or result in the creation of a
Lien on any of the properties or assets (including intangible
assets) of Agere or any of its Subsidiaries pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to
which Agere or any of its Subsidiaries is a party or by which
Agere or any of its Subsidiaries or its or any of their
respective properties is bound or affected, or (iv) give
rise to or result in any person having, or having the right to
exercise, any preemptive rights, rights of first refusal, rights
to acquire or similar rights with respect to any capital stock
of Agere or any of its Subsidiaries or any of their respective
assets or properties, except in the case of the preceding
clauses (ii) through (iv), inclusive, as would not
reasonably be expected to have, individually or in the
aggregate, an Agere Material Adverse Effect.
(b) The execution and delivery by Agere of this Agreement
do not, and the performance by Agere of its covenants and
agreements under this Agreement and the consummation by Agere of
the transactions contemplated by this Agreement (including the
Merger) will not, require any consent, approval, order, license,
authorization, registration, declaration or permit of, or filing
with or notification to, any Governmental Authority, except
(i) as may be required by the HSR Act, (ii) as may be
required under any foreign antitrust or competition Legal
Requirement, including the EC Merger Regulation, (iii) the
filing of the Joint Proxy Statement/Prospectus with the SEC in
accordance with the Exchange Act and as may be required under
the Securities Act, (iv) such consents, approvals, orders,
licenses, authorizations, registrations, declarations, permits,
filings, and notifications as may be required under applicable
United States federal and state securities laws, (v) the
filing of the Certificate of Merger or other documents as
required by the DGCL and (vi) such other consents,
approvals, orders, registrations, declarations, permits, filings
and notifications which, if not obtained or made, would not
reasonably be expected to have, individually or in the
aggregate, an Agere Material Adverse Effect.
3.7 Agere SEC Reports.
(a) Agere has filed and made available to LSI all forms,
reports, schedules, statements and other documents, including
any exhibits thereto, required to be filed by Agere with the SEC
(collectively, the Agere SEC Reports). The
Agere SEC Reports, including all forms, reports and documents
filed by Agere with the SEC after the date hereof and prior to
the Effective Time, (i) were and, in the case of the Agere
SEC Reports filed after the date hereof, will be, prepared in
accordance with the applicable requirements of the Securities
Act, the Exchange Act and the Sarbanes-Oxley Act, as the case
may be, and the rules and regulations thereunder, and
(ii) did not at the time they were filed (or if amended or
superseded by a filing prior to the date of this Agreement, then
on the date of such filing), and in the case of such forms,
reports and documents filed by Agere with the SEC after the date
of this Agreement, will not as of the time they are filed,
contain any untrue statement of a material fact or omit to state
a material fact required to be stated in such Agere SEC Reports
or necessary in order to make the statements in such Agere SEC
Reports, in light of the circumstances under which they were and
will be made, not misleading. None of the Subsidiaries of Agere
is required to file any forms, reports, schedules, statements or
other documents with the SEC.
(b) Each of the consolidated financial statements
(including, in each case, any related notes and schedules),
contained in the Agere SEC Reports, including any Agere SEC
Reports filed after the date of this Agreement, complied or will
comply, as of its respective date, in all material respects with
all applicable
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accounting requirements and the published rules and regulations
of the SEC with respect thereto, was or will be prepared in
accordance with GAAP (except as may be indicated in the notes
thereto) applied on a consistent basis throughout the periods
involved and fairly presented in all material respects or will
fairly present in all material respects the consolidated
financial position of Agere and its Subsidiaries as of the
respective dates thereof and the consolidated results of its
operations and cash flows for the periods indicated, except that
any unaudited interim financial statements are subject to normal
and recurring year-end adjustments which have not been and are
not expected to be material in amount, individually or in the
aggregate.
(c) The chief executive officer and chief financial officer
of Agere have made all certifications required by
Sections 302 and 906 of the Sarbanes-Oxley Act, and the
statements contained in any such certifications are complete and
correct, and Agere is otherwise in compliance with all
applicable effective provisions of the Sarbanes-Oxley Act and
the applicable listing and corporate governance rules of the
NYSE.
3.8 Disclosure Controls and Procedures.
(a) Agere and each of its Subsidiaries has established and
maintains, adheres to and enforces a system of internal
accounting controls which are effective in providing reasonable
assurance regarding the reliability of financial reporting and
the preparation of financial statements in accordance with GAAP,
including policies and procedures that (i) require the
maintenance of records that in reasonable detail accurately and
fairly reflect the material transactions and dispositions of the
assets of Agere and its Subsidiaries, (ii) provide
reasonable assurance that transactions are recorded as necessary
to permit preparation of financial statements in accordance with
GAAP, and that receipts and expenditures of Agere and its
Subsidiaries are being made only in accordance with appropriate
authorizations of management and the Agere Board and
(iii) provide reasonable assurance regarding prevention or
timely detection of unauthorized acquisition, use or disposition
of the assets of Agere and its Subsidiaries.
(b) To the knowledge of Agere, neither Agere nor its
independent auditors have identified (i) any significant
deficiency or material weakness in the system of internal
accounting controls utilized by Agere and its Subsidiaries,
(ii) any fraud, whether or not material, that involves
Ageres management or other employees who have a role in
the preparation of financial statements or the internal
accounting controls utilized by Agere and its Subsidiaries or
(iii) any claim or allegation regarding any of the
foregoing.
(c) Neither Agere nor any of its Subsidiaries is a party
to, or has any commitment to become a party to, any joint
venture, partnership agreement or any similar Contract
(including any Contract relating to any transaction, arrangement
or relationship between or among Agere or any of its
Subsidiaries, on the one hand, and any unconsolidated affiliate,
including any structured finance, special purpose or limited
purpose entity or Person, on the other hand (such as any
arrangement described in Section 303(a)(4) of
Regulation S-K
of the SEC)) where the purpose or effect of such arrangement is
to avoid disclosure of any material transaction involving, or
material liabilities of, Agere or any of its Subsidiaries in
Ageres consolidated financial statements.
(d) Neither Agere nor any of its Subsidiaries nor, to the
knowledge of Agere, any director, officer, auditor, accountant,
consultant or representative of Agere or any of its Subsidiaries
has received or otherwise had or obtained knowledge of any
substantive complaint, allegation, assertion or claim, whether
written or oral, that Agere or any of its Subsidiaries has
engaged in questionable accounting or auditing practices. No
current or former attorney representing Agere or any of its
Subsidiaries has reported evidence of a material violation of
securities laws, breach of fiduciary duty or similar violation
by Agere or any of its officers, directors, employees or agents
to the current the Agere Board or any committee thereof or to
any current director or executive officer of Agere.
(e) To the knowledge of Agere, no employee of Agere or any
of its Subsidiaries has provided or is providing information to
any law enforcement agency regarding the commission or possible
commission of any crime or the violation or possible violation
of any applicable Legal Requirements of the type described in
Section 806 of the Sarbanes-Oxley Act by Agere or any of
its Subsidiaries. Neither Agere nor any of its Subsidiaries nor,
to the knowledge of Agere, any director, officer, employee,
contractor, subcontractor or agent of Agere or any such
Subsidiary has discharged, demoted, suspended, threatened,
harassed or in any other
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manner discriminated against an employee of Agere or any of its
Subsidiaries in the terms and conditions of employment because
of any lawful act of such employee described in Section 806
of the Sarbanes-Oxley Act.
3.9 No Undisclosed
Liabilities. Except as reflected in the Agere
Balance Sheet, neither Agere nor any of its Subsidiaries has any
Liabilities, other than (i) Liabilities incurred since the
date of the Agere Balance Sheet in the ordinary course of
business consistent with past practice, (ii) Liabilities
under this Agreement or expressly permitted to be incurred under
this Agreement, and (iii) Liabilities that, individually
and in the aggregate, have not had, and would not reasonably be
expected to have, an Agere Material Adverse Effect.
3.10 Absence of Certain Changes or
Events. Since the date of the Agere Balance
Sheet through the date hereof, Agere has conducted its business
in the ordinary course of business consistent with past practice
and, since such date through the date hereof, there has not
occurred (i) any Agere Material Adverse Effect or
(ii) any action taken by Agere or event that would have
required the consent of LSI pursuant to Section 5.2
had such action or event occurred after the date of this
Agreement.
3.11 Compliance with Laws; Permits.
(a) Agere and its Subsidiaries are in compliance with, and
are not in default under or violation of (and have not received
any notice of material non-compliance, default or violation with
respect to) any Legal Requirement applicable to Agere or any of
its Subsidiaries or by which any of their respective properties
is bound, except for such non-compliance, defaults and
violations that would not reasonably be expected to have,
individually or in the aggregate, an Agere Material Adverse
Effect.
(b) Agere and its Subsidiaries hold all permits, licenses,
easements, variances, exemptions, consents, certificates,
authorizations, registrations, orders and other approvals from
Governmental Entities that are material to the operation of the
business of Agere and its Subsidiaries taken as a whole as
currently conducted (collectively, the Agere
Permits). The Agere Permits are in full force and
effect, have not been violated in any material respect and, to
the knowledge of Agere, no suspension, revocation or
cancellation thereof has been threatened, and there is no Legal
Proceeding pending or, to the knowledge of Agere, threatened,
seeking the suspension, revocation or cancellation of any Agere
Permits. No Agere Permit shall cease to be effective as a result
of the consummation of the transactions contemplated by this
Agreement.
3.12 Legal Proceedings;
Orders. Except as would not reasonably be
expected to have, individually or in the aggregate, an Agere
Material Adverse Effect, there are no material Legal Proceedings
(other than arising from or relating to the Merger or any of the
other transactions contemplated by this Agreement),
(a) pending against Agere or any of its Subsidiaries or any
of their respective properties or assets, or (b) to the
knowledge of Agere, threatened against Agere or any of its
Subsidiaries, or any of their respective properties or assets.
Neither Agere nor any Subsidiary of Agere is subject to any
outstanding Order that would reasonably be expected to prevent
or materially delay the consummation of the transactions
contemplated by this Agreement. There has not been nor are there
currently any internal investigations or inquiries being
conducted by Agere, the Agere Board (or any committee thereof)
or any third party at the request of any of the foregoing
concerning any financial, accounting, tax, conflict of interest,
self-dealing, fraudulent or deceptive conduct or other
misfeasance or malfeasance issues.
3.13 Material Contracts.
(a) For all purposes of and under this Agreement, an
Agere Material Contract shall mean:
(i) any material contract (as such term is
defined in Item 601(b)(10) of
Regulation S-K
of the SEC, other than those agreements and arrangements
described in Item 601(b)(10)(iii)) with respect to Agere
and its Subsidiaries;
(ii) any employment-related Contract or plan, including any
stock option plan, stock appreciation right plan or stock
purchase plan or material Contract, any of the benefits of which
will be increased, or the vesting of benefits of which will be
accelerated, by the consummation of the transactions
contemplated by this Agreement (whether alone or in connection
with subsequent or additional events);
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(iii) any Contract containing any covenant
(A) limiting the right of Agere or any of its Subsidiaries
to engage in any line of business or to compete with any Person
in any line of business, or (B) prohibiting Agere or any of
its Subsidiaries (or, after the Closing Date, LSI) from engaging
in business with any Person or levying a fine, charge or other
payment for doing so;
(iv) any Contract (A) relating to the pending or
future disposition or acquisition by Agere or any of its
Subsidiaries after the date of this Agreement of a material
amount of assets other than in the ordinary course of business
or (B) pursuant to which Agere or any of its Subsidiaries
will acquire after the date of this Agreement any material
ownership interest in any other Person or other business
enterprise other than Ageres Subsidiaries;
(v) any material manufacturing Contract;
(vi) any mortgages, indentures, guarantees, loans or credit
agreements, security agreements or other Contracts relating to
the borrowing of money or extension of credit, in each case in
excess of $25,000,000, other than (A) accounts receivables
and payables, (B) loans to direct or indirect wholly owned
Subsidiaries, and (C) advances to employees for travel and
business expenses, in each case in the ordinary course of
business consistent with past practice;
(vii) any settlement Contract with ongoing obligations
other than (A) releases that are immaterial in nature or
amount entered into in the ordinary course of business,
(B) settlement Contracts only involving the payment of cash
in amounts that do not exceed $5,000,000 in any individual case,
or (C) settlement Contracts relating to Patent licenses
entered into in the ordinary course of business, consistent with
past practices;
(viii) any Contract that is collectively bargained by Agere;
(ix) other than purchase orders in the ordinary course of
business, any other Contract that provides for payment
obligations by Agere or any of its Subsidiaries in any twelve
(12) month period of $15,000,000 or more in any individual
case that is not terminable by Agere or its Subsidiaries upon
notice of ninety (90) days or less without material
liability to Agere or its Subsidiary and is not disclosed
pursuant to clauses (i) through (viii) above,
inclusive; and
(x) any Contract, or group of Contracts with a Person (or
group of affiliated Persons), the termination of which would be
reasonably expected to have an Agere Material Adverse Effect and
is not disclosed pursuant to clauses (i) through
(x) above, inclusive.
(b) Section 3.13(b) of the Agere Disclosure
Letter contains a complete and accurate list of all Agere
Material Contracts as of the date hereof, to or by which Agere
or any of its Subsidiaries is a party or is bound, and
identifies each subsection of Section 3.13(a) that
describes such Agere Material Contract.
(c) Each Agere Material Contract is valid and binding on
Agere (and/or each such Subsidiary of Agere party thereto) and
is in full force and effect, other than those Contracts that by
their terms have expired or been terminated since the date
hereof, and neither Agere nor any of its Subsidiaries party
thereto, nor, to the knowledge of Agere, any other party
thereto, is in breach of, or default under, any such Agere
Material Contract, and no event has occurred that with notice or
lapse of time or both would constitute such a breach or default
thereunder by Agere or any of its Subsidiaries, or, to the
knowledge of Agere, any other party thereto, except for such
failures to be in full force and effect and such breaches and
defaults that would not reasonably be expected to have,
individually or in the aggregate, an Agere Material Adverse
Effect.
3.14 Employee Benefit Matters.
(a) Section 3.14(a) of the Agere Disclosure
Letter sets forth a complete and accurate list of all
U.S. Agere Employee Plans. Neither Agere nor any ERISA
Affiliate has any plan or commitment to establish any new Agere
Employee Plan, to modify any Agere Employee Plan (except to the
extent required by law or to conform any such Agere Employee
Plan to the requirements of any applicable law, in each case as
previously disclosed to LSI in writing, or as required by this
Agreement), or to adopt or enter into any Agere Employee Plan.
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(b) With respect to each Agere Employee Plan, Agere has
made available to LSI complete and accurate copies of
(i) such Agere Employee Plan (or a written summary of any
unwritten plan) together with all amendments, (ii) in the
case of any plan for which Forms 5500 are required to be
filed, the three most recent annual reports
(Form 5500) with schedules attached, (iii) in the
case of any plan that is intended to be qualified under
Section 401(a) of the Code, the most recent determination,
opinion, notification or advisory letter from the IRS, and
correspondence to or from the IRS or the DOL with respect to
such letter (iv) each trust agreement, group annuity
contract, administration and similar material agreements,
investment management or investment advisory agreements,
(v) the most recent summary plan descriptions and employee
handbook, or other similar material employee communications
relating to employee benefits matters, (vi) all personnel,
payroll and employment manuals and policies, (vii) the most
recent annual and periodic financial statements and other annual
accounting of assets for each Agere Employee Plan that is
funded, (viii) all material correspondence to or from any
governmental agency relating to any Agere Employee Plan within
the past two (2) years and (ix) the three
(3) most recent plan years discrimination tests for
each Agere Employee Plan.
(c) Each Agere Employee Plan has been established,
maintained and administered in all material respects in
accordance with all applicable Legal Requirements, including if
applicable, ERISA and the Code, and in accordance with its
terms, and each of Agere, Ageres Subsidiaries and their
respective ERISA Affiliates have in all material respects met
their obligations with respect to each Agere Employee Plan and
have timely made (or timely will make) all required
contributions thereto.
(d) Section 3.14(d) of the Agere Disclosure
Letter contains a complete and accurate list of each Agere
Employee Benefit Plan that has assets which include securities
issued by Agere, any of Ageres Subsidiaries or any of
their respective ERISA Affiliates.
(e) All Agere Employee Plans that are intended to be
qualified under Section 401(a) of the Code, and all trusts
that are intended to be qualified under Section 501(a) of
the Code (each, a Agere Qualified Plan), have
received determination, opinion or advisory letters from the
Internal Revenue Service to the effect that such Agere Employee
Plans are qualified and the plans and trusts related thereto are
exempt from federal income taxes under Sections 401(a) and
501(a), respectively, of the Code, or Agere has remaining a
period of time under applicable U.S. Department of the
Treasury regulations or Internal Revenue Service pronouncements
in which to apply for such a letter and to make any amendments
necessary to obtain a favorable determination as to the
qualified status of each such Agere Qualified Plan. No such
determination, opinion or advisory letter has been revoked and,
to the knowledge of Agere, revocation has not been threatened,
and no such Agere Employee Plan has been amended or operated
since the date of its most recent determination letter or
application therefor in any respect, and no act or omission has
occurred, that would reasonably be expected to adversely affect
its qualification or materially increase its cost. There has
been no termination, partial termination or discontinuance of
contributions to any Agere Qualified Plan that resulted or may
reasonably be expected to result in material liability to Agere.
No prohibited transaction, within the meaning of
Section 4975 of the Code or Sections 406 and 407 of
ERISA, and not otherwise exempt under Section 408 of ERISA,
has occurred with respect to any Agere Employee Plan.
(f) Neither Agere, any of Ageres Subsidiaries nor any
of their respective ERISA Affiliates has in the preceding six
(6) years maintained, participated in or contributed to (or
been obligated to contribute to), or can reasonably expect to
have future material liability with respect to (i) a
multiemployer plan (as defined in
Section 4001(a)(3) of ERISA), (ii) a multiple
employer plan as defined in ERISA or the Code, or
(iii) a funded welfare plan within the meaning
of Section 419 of the Code. No Agere Employee Plan is
funded by, associated with or related to a voluntary
employees beneficiary association within the meaning
of Section 501(c)(9) of the Code. No Agere Employee Plan
provides health benefits that are not fully insured through an
insurance contract.
(g) The Pension Plans set forth in
Section 3.14(g) of the Agere Disclosure Letter are
the only Pension Plans that Agere or any Agere ERISA Affiliate
has maintained, sponsored, participated or contributed to in the
preceding six (6) years, or currently maintains, sponsors,
participates in or contributes to, or can reasonably expect to
have future material liability with respect to, that is subject
to Title IV of ERISA or Section 412 of the Code (each,
an Agere Pension Plan). As of the Effective
Time: (i) no legal or administrative action has been
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taken by the Pension Benefit Guaranty Corporation (the
PBGC) to terminate or to appoint a trustee to
administer any Agere Pension Plan; (ii) no liability to the
PBGC under Title IV of ERISA has been incurred by Agere or
an Agere ERISA Affiliate that has not been satisfied in full;
(iii) no Agere Pension Plan has a reportable event within
the meaning of Section 4043 of ERISA for which the
30 day notice requirement has not been waived by the PBGC
has occurred within the past six years or is reasonably expected
to occur with respect to any Agere Employee Plan; and
(iv) no Agere Pension Plan has incurred any event described
in Section 4041, 4062 or 4063 of ERISA. No complete or
partial termination of any Agere Employee Plan subject to
Title IV of ERISA has occurred or is expected to occur and
no proceedings have been instituted and, to the knowledge of
Agere, no condition exists and no event has occurred that is
reasonably likely to constitute grounds under Title IV of
ERISA to terminate or appoint a trustee to administer any Agere
Pension Plan. Each Agere Pension Plan has been maintained in
compliance with the minimum funding standards of ERISA and the
Code where applicable and no Agere Pension Plan subject to
§412 or 418B of the Code or §302 of ERISA has incurred
any accumulated funding deficiency within the meaning of
§412 or 418B of the Code or §302 of ERISA,
respectively, or has applied for or obtained a waiver from the
IRS of any minimum funding requirement or an extension of any
amortization period under §412 of the Code or §303 or
304 of ERISA. Except for payments of premiums to the PBGC, which
have been paid in full, Agere has not incurred any liability
(including any indirect liability through an agreement with any
other party and any material contingent or material secondary
liability) to the PBGC in connection with any Agere Pension Plan
covering any active, retired or former employees or directors of
Agere, including any liability under §4069 or 4212(c) of
ERISA or any penalty imposed under §4071 of ERISA, or
ceased operations at any facility or withdrawn from any such
Agere Pension Plan in a manner which could subject it to
liability under §4062, 4063 or 4064 of ERISA, or knows of
any facts or circumstances that might give rise to any liability
of Agere to the PBGC under Title IV of ERISA that could
reasonably be anticipated to result in any claims being made
against Agere by the PBGC (PBGC Claims).
Section 3.14(g) of the Agere Disclosure Letter sets
forth the approximate liability for any Agere Pension Plan
accumulated funding deficiency within the meaning of §412
or 418B of the Code or §302 of ERISA.
(h) Other than as required under Section 601 et seq.
of ERISA or equivalent state law, none of the Agere Employee
Plans promises or provides health or other welfare benefits
(excluding normal claims for benefits under Ageres group
life insurance, accidental death and dismemberment insurance and
disability plans and policies) or coverage to any person
following retirement or other termination of employment.
(i) There is no action, suit, proceeding, claim,
arbitration, audit or investigation pending or, to the knowledge
of Agere, threatened or reasonably anticipated, with respect to
any Agere Employee Plan or the assets of any Agere Employee
Benefit Plan, other than claims for benefits in the ordinary
course. No Agere Employee Plan is or within the last three
calendar years has been the subject of, or has received notice
that it is the subject of, examination by a government agency or
a participant in a government sponsored amnesty, voluntary
compliance or similar program.
(j) To the knowledge of Agere, each individual who has
received compensation for the performance of services on behalf
of Agere, any of Ageres Subsidiaries or any of their
respective ERISA Affiliates has been properly classified as an
employee or independent contractor in accordance with applicable
Legal Requirement.
(k) Each Agere Employee Plan maintained or covering
employees outside the United States (the Agere
Non-U.S. Employee
Plans), and the books and records thereof, is in
material compliance with all applicable Legal Requirements of
each applicable jurisdiction. No such Agere
Non-U.S. Employee
Plan has unfunded liabilities, that as of the Effective Time,
will not be offset by insurance or fully accrued.
Section 3.13(k) of the Agere Disclosure Letter
contains a complete and accurate list of each country in which
Agere or any of its Subsidiaries or affiliates has operations as
of the Agere Balance Sheet Date and the approximate number of
employees in each such country as of the Agere Balance Sheet
Date.
(l) Section 3.14(l) of the Agere Disclosure
Letter sets forth a complete and accurate list of (i) all
employment agreements with employees of Agere or any of its
Subsidiaries, other than customary offer letters and other
similar employment agreements entered into in the ordinary
course of business; and (ii) all operative
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severance agreements, programs and policies of Agere or any of
its Subsidiaries with or relating to its Section 16
officers, excluding programs and policies required to be
maintained by Legal Requirement.
(m) All contributions required to be made with respect to
any Agere Employee Plan on or prior to the Effective Time have
been or will be timely made or are reflected on Agere Balance
Sheet.
(n) The negotiation or consummation of the transactions
contemplated by this Agreement will not, either alone or in
combination with another event, (i) entitle any current or
former employee, director, consultant or officer of Agere or any
Subsidiary of Agere to severance pay, or any other payment from
Agere or any of its Subsidiaries, or pursuant to any Agere
Employee Plan, (ii) accelerate the time of distribution,
payment or vesting, a lapse of repurchase rights or increase the
amount of compensation or benefits due any such employee,
director or officer, (iii) result in the forgiveness of
indebtedness, or (iv) trigger an obligation to fund
benefits. Section 3.13(n) of the Agere Disclosure
Letter contains a complete and accurate list of each Agere
disqualified individual (as defined in Code
Section 280G and the regulations thereunder). No payment or
benefit which will or may be made by Agere or its ERISA
Affiliates with respect to any current or former employee or any
other disqualified individual is reasonably expected
to be characterized as a parachute payment, within
the meaning of Section 280G(b)(2) of the Code. There is no
contract, agreement, plan or arrangement to which Agere or any
ERISA Affiliates is a party or by which it is bound to
compensate any current or former employee or other disqualified
individual for excise taxes paid pursuant to Section 4999
of the Code.
(o) Each material nonqualified deferred compensation plan
(as defined in Section 409A(d)(1) of the Code) maintained
or sponsored by Agere has been operated since January 1,
2005 in good faith compliance with Section 409A of the Code
and IRS Notice
2005-1. No
material nonqualified deferred compensation plan has been
materially modified (within the meaning of IRS
Notice
2005-1) at
any time after October 3, 2004.
(p) No stock option, stock appreciation right or service
provider warrant of Agere (i) has an exercise price that
has been or may be less than the fair market value of the
underlying equity as of the date such option or right was
granted or (ii) has any feature for the deferral of
compensation other than the deferral of recognition of income
until the later of exercise or disposition of such option or
right.
(q) Neither Agere nor any ERISA Affiliate has or is
reasonably likely to have any liability or obligations to Lucent
or AT&T, with respect to any compensation or benefits with
respect to employees or former employees of Lucent or AT&T
who are not employees or former employees of Agere pursuant to
an agreement with Lucent or AT&T.
(r) There is no Contract to which Agere or any of its
Subsidiaries is a party, including the provisions of this
Agreement, covering any employee, consultant or director of
Agere or any of its Subsidiaries, which, individually or
collectively, reasonably could be expected to give rise to the
payment of any amount that would not be deductible pursuant to
Sections 280G, 404 or 162(m) of the Code or that would give
rise to a penalty under Section 409A of the Code.
3.15 Labor Matters.
(a) Agere and each of its Subsidiaries (i) has
withheld and reported all amounts required by law or by
agreement to be withheld and reported with respect to wages,
salaries and other payments to employees; (ii) is not
liable for any arrears of wages or any taxes or any penalty for
failure to comply with any of the foregoing; and (iii) is
not liable for any payment to any trust or other fund governed
by or maintained by or on behalf of any governmental authority,
with respect to unemployment compensation benefits, social
security or other benefits or obligations for employees (other
than routine payments to be made in the normal course of
business and consistent with past practice), except in each
case, for any failure to withhold, report or pay which would
have or could reasonably be expected to have an Agere Material
Adverse Effect.
(b) To the knowledge of Agere: (i) there are no
current labor union organizing activities with respect to any
employees of Agere
and/or any
of its Subsidiaries, (ii) no labor union, labor
organization, trade union, works council, or group of employees
of Agere
and/or any
of its Subsidiaries has made a pending demand for recognition or
certification, (iii) there are no representation or
certification proceedings or petitions seeking a
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representation proceeding presently pending or threatened in
writing to be brought or filed with the National Labor Relations
Board or any other labor relations tribunal or authority, and
(iv) there are no labor strikes or lockouts, or threats
thereof, against or affecting Agere or any of its Subsidiaries.
(c) Agere and each of its Subsidiaries are and have been in
material compliance with all notice and other requirements under
the Worker Adjustment and Retraining Notification Act of 1988,
as amended (the WARN Act), and any similar
foreign, state or local law relating to plant closings and
layoffs.
3.16 Properties. Agere and
each of its Subsidiaries have good and valid title to, or a
valid leasehold interest in, all the properties and assets which
it purports to own or lease (real, tangible, personal and
mixed), including all the properties and assets reflected in the
Agere Balance Sheet (except for personal property sold since the
date of the Agere Balance Sheet in the ordinary course of
business consistent with past practice). All properties and
assets reflected in the Agere Balance Sheet are free and clear
of all Liens, except for Liens reflected on the Agere Balance
Sheet and Liens for current taxes not yet due and other Liens
that do not materially impair the use of the property or assets
subject thereto. All real property leases, subleases, licenses
or other occupancy agreements to which Agere or any of its
Subsidiaries is a party (collectively, the Agere Real
Property Leases) are in full force and effect, except
where the failure of such Agere Real Property Leases to be in
full force and effect would not be reasonably likely to result
in an Agere Material Adverse Effect. There is no default by
Agere or any of its Subsidiaries under any of the Agere Real
Property Leases, or, to the knowledge of Agere, defaults by any
other party thereto, except such defaults as have been waived in
writing or cured or such defaults that in the aggregate would
not be reasonably likely to result in an Agere Material Adverse
Effect.
3.17 Tax Matters. Agere and
each of its Subsidiaries have prepared and timely filed (taking
into account any extension of time within which to file) all
material Tax Returns required to be filed by any of them and all
such filed Tax Returns are true, correct and complete in all
material respects, (ii) Agere and each of its Subsidiaries
have paid all Taxes that are required to be paid by any of them,
except with respect to matters for which adequate reserves have
been established on the Financial Statements in accordance with
GAAP, (iii) the U.S. consolidated federal income Tax
Returns of Agere have been examined by the Internal Revenue
Service (or the period for assessment of the Taxes in respect of
which such Tax Returns were required to be filed has expired)
for all periods ending on or before December 30, 2001,
(iv) there are not pending or threatened in writing, any
audits, examinations, investigations or other proceedings in
respect of income Taxes or other material Taxes, (v) there
are no Liens for Taxes on any of the assets of Agere or any of
its Subsidiaries other than Liens for Taxes not yet due and
payable or being contested in good faith and for which adequate
reserves have been established on the Financial Statements in
accordance with GAAP, (vi) none of Agere or any of its
Subsidiaries has been a controlled corporation or a
distributing corporation in any distribution
occurring during the two-year period ending on the date hereof
that was purported or intended to be governed by
Section 355 of the Code (or any similar provision of state,
local or foreign Law) and (vii) none of Agere or any of its
Subsidiaries has engaged in a reportable
transaction, within the meaning of Treas. Reg.
Section 1.6011-4(b),
including any transaction that is the same or substantially
similar to one of the types of transactions that the Internal
Revenue Service has determined to be a tax avoidance transaction
and identified by notice, regulation or other form of published
guidance as a listed transaction, as set forth in
Treas.
Reg. Section 1.6011-4(b)(2).
3.18 Environmental Matters.
(a) Except as would not reasonably be expected to have,
individually or in the aggregate, an Agere Material Adverse
Effect, no Hazardous Materials are present on any real property
that is currently owned, operated, occupied, controlled or
leased by Agere or any of its Subsidiaries or were present on
any real property at the time it ceased to be owned, operated,
occupied, controlled or leased by Agere or its Subsidiaries,
including the land, the improvements thereon, the groundwater
thereunder and the surface water thereon. Except as would not
reasonably be expected to have, individually or in the
aggregate, an Agere Material Adverse Effect, there are no
underground storage tanks, asbestos which is friable or likely
to become friable or PCBs present on any real property currently
owned, operated, occupied, controlled or leased by Agere or any
of its Subsidiaries or as a consequence of the acts of Agere,
its Subsidiaries or their agents.
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(b) Except as would not reasonably be expected to have,
individually or in the aggregate, an Agere Material Adverse
Effect, Agere and its Subsidiaries have conducted all Hazardous
Material Activities in compliance in all material respects with
all applicable Environmental Laws. Except as would not
reasonably be expected to have, individually or in the
aggregate, an Agere Material Adverse Effect, the Hazardous
Materials Activities of Agere and its Subsidiaries prior to the
Closing have not resulted in the exposure of any person to a
Hazardous Material in a manner which has caused or could
reasonably be expected to cause an adverse health effect to any
such person.
(c) Except as would not reasonably be expected to have,
individually or in the aggregate, an Agere Material Adverse
Effect, Agere and its Subsidiaries have complied in all material
respects with all covenants and conditions of any Environmental
Permit which is or has been in force with respect to its
Hazardous Materials Activities. No circumstances exist which
could reasonably be expected to cause any material Environmental
Permit to be revoked, modified, or rendered non-renewable upon
payment of the permit fee.
(d) No action, proceeding, revocation proceeding, amendment
procedure, writ, injunction or claim is pending, or to the
knowledge of Agere, threatened, concerning or relating to any
Environmental Permit or any Hazardous Materials Activity of
Agere or any of its Subsidiaries that would reasonably be
expected to have, individually or in the aggregate, an Agere
Material Adverse Effect.
(e) Neither Agere nor any of its Subsidiaries is aware of
any fact or circumstance that could result in any Liability
under an Environmental Law which would reasonably be expected to
have an Agere Material Adverse Effect. Except as would not
reasonably be expected to have an Agere Material Adverse Effect,
neither Agere nor any Subsidiary has entered into any Contract
that may require it to guarantee, reimburse, pledge, defend,
hold harmless or indemnify any other party with respect to
liabilities arising out of Environmental Laws or the Hazardous
Materials Activities of Agere or any of its Subsidiaries.
(f) Agere and the Subsidiaries have delivered to LSI or
made available for inspection by LSI and its agents,
representatives and employees all material environmental site
assessments and environmental audits in Ageres possession
or control. Agere and the Subsidiaries have complied in all
material respects with all environmental disclosure obligations
imposed by applicable law with respect to this transaction.
3.19 Intellectual Property Matters.
(a) Section 3.19(a) of the Agere Disclosure
Letter contains a complete and accurate list of all Patents that
are Registered Intellectual Property owned or purported to be
owned by Agere or any of its Subsidiaries (such Patents and all
other material Registered Intellectual Property owned or
purported to be owned by Agere or any of its Subsidiaries,
collectively the Agere Registered Intellectual
Property).
(b) All material Agere Registered Intellectual Property
Rights are owned exclusively by Agere or one or more of its
Subsidiaries free and clear of any Liens (excluding any rights
granted to any licensee of any Agere Intellectual Property Right
entered into in the ordinary course of business). Neither Agere
nor any of its Subsidiaries has transferred ownership of, or
granted an exclusive license to, any third party, of any
Intellectual Property Rights that are or were material Agere
Registered Intellectual Property Rights.
(c) Neither Agere nor its Subsidiaries has, in the conduct
of the business of Agere and its Subsidiaries as currently
conducted, knowingly infringed upon, violated or used without
authorization, any Intellectual Property Rights owned by any
third Person. There is no pending or, to Ageres knowledge,
threatened (and at no time within the three (3) years prior
to the date of this Agreement has there been pending any) suit,
arbitration or other adversarial proceeding before any court,
government agency or arbitral tribunal, or in any jurisdiction,
against Agere or any of its Subsidiaries, alleging that any
activities or conduct of Ageres or any of its
Subsidiaries business infringes or will infringe upon,
violate or constitute the unauthorized use of the Intellectual
Property Rights of any third Person, or challenging the
ownership, validity, enforceability, or registerability of any
Agere Intellectual Property Rights. Agere is not party to any
settlements, covenants not to sue, consents, decrees,
stipulations, judgments, or orders resulting from suits, actions
or similar legal proceedings, which (i) materially restrict
Ageres or any of its Subsidiaries rights to use,
license or transfer any Agere Intellectual Property Rights,
(ii) materially restrict the conduct of the business of
Agere or any of its Subsidiaries in order to accommodate any
third partys Intellectual Property Rights, or
(iii) compel or require Agere or any of its Subsidiaries to
license or transfer any Agere Intellectual Property Rights.
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(d) Neither Agere nor any Agere Subsidiary has committed,
agreed or become obligated to license on a royalty-free basis,
any Agere Intellectual Property Rights to any third Person as a
result of any participation in an industry association, standard
setting organization or similar body, or otherwise.
(e) Agere and its Subsidiaries have taken commercially
reasonable measures consistent with industry standard practices
to protect the proprietary nature of the Trade Secrets owned by
Agere or such Subsidiary that is material to the business of
Agere and its Subsidiaries as currently conducted.
(f) To the knowledge of Agere, all material Agere
Intellectual Property Rights are, and following the transactions
contemplated hereby shall be, freely, transferable, licensable
and alienable without the consent of, or notice or payment of
any kind to any Governmental Authority or third party.
(g) To the knowledge of Agere, no third party is
misappropriating, infringing, diluting or violating any Agere
Intellectual Property Rights in a manner that has or would
reasonably be expected to have an Agere Material Adverse Effect.
There are no pending claims, suits, arbitrations or other
adversarial proceedings before any court, government agency or
arbitral tribunal brought by Agere or any of its Subsidiaries
against any third party with respect to any Agere Intellectual
Property Rights, which remain unresolved as of the date hereof.
(h) Section 3.19(h) of the Agere Disclosure
Letter contains a complete and accurate list of all material
Contracts pursuant to which a third party has licensed to Agere
or any of its Subsidiaries any Intellectual Property Right that
is material to the business of Agere or any Agere Subsidiary
(Agere In Licenses), other than Contracts
with respect to commercial available Technology that is not
included in an Agere Product or necessary to the manufacture of
and Agere Product.
(i) Section 3.19(i) of the Agere Disclosure
Letter contains a complete and accurate list of all material
Contracts pursuant to which Agere or any of its Subsidiaries has
granted a third Person or affiliate any rights or licenses to
any Agere Intellectual Property Rights, other than non-exclusive
licenses granted in the ordinary course of business
(Agere Out Licenses, and together with the
Agere In Licenses, the Agere IP Licenses).
(j) Neither Agere nor any of its Subsidiaries, nor, to the
knowledge of Agere any other party to an Agere IP License, is in
material breach of any such Agere IP License that is material to
the business of Agere and its Subsidiaries, taken as a whole.
The consummation of the transactions contemplated hereby will
not result or cause (i) the breach by Agere or any of its
Subsidiaries of any Agere IP License, (ii) the termination,
impairment or restriction of any right or license granted to
Agere or any of its Subsidiaries under an Agere IP License, or
(iii) Agere or any of its Subsidiaries to grant, or expand
the scope of a prior grant, to a third party of any rights to
any material Agere Intellectual Property Rights (including by
release of any source code), except as would not reasonably be
expected to have an Agere Material Adverse Effect.
3.20 Insurance. All fire and
casualty, general liability, business interruption, product
liability, sprinkler and water damage insurance policies and
other forms of insurance maintained by Agere or any of its
Subsidiaries have been made available to LSI. Each such policy
is in full force and effect and all premiums due thereon have
been paid in full.
3.21 Interested Party
Transactions. Since September 30, 2006,
no event has occurred that would be required to be reported as a
Certain Relationship or Related Transaction pursuant to
Statement of Financial Accounting Standards No. 57.
3.22 Brokers, Finders and Financial
Advisors. No broker, finder or investment
banker (other than Goldman, Sachs & Co., whose
brokerage, finders or other fees will be paid by Agere) is
entitled to any brokerage, finders or other fee or
commission in connection with the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of
Agere or any of its Subsidiaries. Agere has furnished to LSI a
complete and correct copy of all agreements between Agere and
Goldman, Sachs & Co. pursuant to which such firm would
be entitled to any such payment.
3.23 Opinion of Financial Advisor of
Agere. The financial advisor of Agere,
Goldman, Sachs & Co., has delivered to the Board of
Directors of Agere an opinion to the effect that, as of the date
of this Agreement and based upon and subject to the matters set
forth therein, the Exchange Ratio is fair, from a financial
point of view, to the stockholders of Agere. Such opinion has
not been withdrawn, revoked or modified.
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3.24 Takeover Statutes. No
business combination, fair price,
moratorium, control share acquisition or
other similar anti-takeover statute or regulation under the laws
of the State of Delaware or other applicable Legal Requirement
(each, a Takeover Statute) is applicable to
Agere, the Merger or any of the other transactions contemplated
by this Agreement.
3.25 Rights Plan. Agere has
taken all action so that (a) the approval, execution and
delivery of this Agreement, the consummation of the Merger and
the transactions contemplated hereby, and the public
announcement of any of the foregoing shall not cause any of LSI,
Merger Sub or any of their Affiliates to be deemed to be an
Acquiring Person (as such term is defined in the
Agere Rights Plan) under the Agere Rights Plan and (b) the
entering into of this Agreement and consummating the
transactions contemplated hereby will not result in the grant of
any rights to any Person under the Agere Rights Plan or enable
or require the Agere Rights to be exercised, distributed or
triggered as a result thereof.
ARTICLE IV
REPRESENTATIONS
AND WARRANTIES OF LSI AND MERGER SUB
Except (i) as set forth in the disclosure letter delivered
by LSI to Agere dated as of the date hereof (the LSI
Disclosure Letter), which expressly identifies the
Section (or, if applicable, subsection) to which such
exception relates (it being understood and hereby agreed that
any disclosure in the LSI Disclosure Letter relating to one
Section or subsection shall also apply to any other Sections and
subsections if and to the extent that it is reasonably apparent
on the face of such disclosure (without reference to the
underlying documents referenced therein) that such disclosure
also relates to such other Sections or subsections), or
(ii) as set forth in any LSI SEC Reports filed with the SEC
prior to the date hereof (other than in any risk
factors or other forward looking statements included
therein), LSI and Merger Sub hereby represent and warrant to
Agere as follows:
4.1 Organization and
Qualification. Each of LSI and Merger Sub is
duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate
power and authority necessary to own, lease and operate the
properties it purports to own, lease or operate and to carry on
its business as it is presently being conducted. LSI is duly
qualified or licensed as a foreign corporation to do business,
and is in good standing, in each jurisdiction where the
character or location of the properties owned, leased or
operated by it or the nature of its activities makes such
qualification or licensing necessary, except to the extent that
the failure to be so qualified or licensed and in good standing
would not reasonably be expected to have, individually or in the
aggregate, an LSI Material Adverse Effect. Merger Sub has been
formed by LSI for the purposes of the Merger and has no
material, assets, Liabilities or operations except as
contemplated hereby.
4.2 Subsidiaries. A complete
and accurate list of all of the Subsidiaries of LSI, together
with the jurisdiction of incorporation of each Subsidiary and
the percentage of each Subsidiarys outstanding capital
stock owned by LSI or another Subsidiary or affiliate of LSI, is
set forth in Section 4.2 of the LSI Disclosure
Letter. LSI does not directly or indirectly own any equity or
similar interest in, or any interest convertible into or
exchangeable or exercisable for any equity or similar interest
in, any Person, excluding securities in any publicly traded
company held for investment by LSI and comprising less than one
percent of the outstanding stock of such company. Each
Subsidiary of LSI is duly organized, validly existing and in
good standing under the Legal Requirements of its jurisdiction
of organization (to the extent such concepts exist in such
jurisdictions) and has all requisite corporate or other power
and authority necessary to own, lease and operate the properties
it purports to own, lease or operate and to carry on its
business as it is presently being conducted, except to the
extent that the failure to be so organized or existing or in
good standing or have such power or authority would not
reasonably be expected to have, individually or in the
aggregate, an LSI Material Adverse Effect. Each Subsidiary of
LSI is duly qualified or licensed as a foreign corporation to do
business, and is in good standing, in each jurisdiction (to the
extent such concepts exist in such jurisdictions) where the
character or location of the properties owned, leased or
operated by it or the nature of its activities makes such
qualification or licensing necessary, except to the extent that
the failure to be so qualified or licensed and in good standing
would not reasonably be expected to have, individually or in the
aggregate, an LSI Material Adverse Effect.
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4.3 Certificate of Incorporation and
Bylaws. LSI has heretofore made available to
Agere a complete and accurate copy of the LSI Certificate of
Incorporation and LSI Bylaws. The LSI Certificate of
Incorporation and LSI Bylaws, and the charter and bylaws (or
equivalent organizational documents), each as amended to date,
of each of its Subsidiaries (the LSI Subsidiary
Documents) are in full force and effect, and neither
the LSI Board nor, to the knowledge of LSI, any LSI Stockholder
has taken any action to amend the LSI Certificate of
Incorporation or the LSI Bylaws in any respect. LSI has not
taken any action in breach or violation of any of the provisions
of the LSI Certificate of Incorporation or the LSI Bylaws, and
each Subsidiary is not in breach or violation of any of the
material provisions of their respective LSI Subsidiary
Documents, except, in the case of a Subsidiary, as would not
reasonably be expected to have, individually or in the
aggregate, an LSI Material Adverse Effect.
4.4 Capitalization.
(a) The authorized capital stock of LSI consists of
1,300,000,000 shares of LSI Common Stock, and
2,000,000 shares of LSI preferred stock, par value
$0.01 per share (LSI Preferred Stock).
As of November 30, 2006, (i) 403,412,361 shares
of LSI Common Stock were issued and outstanding, (ii) no
shares of LSI Preferred Stock were issued and outstanding,
(iii) 3,792,827 shares of LSI Common Stock were
reserved for issuance pursuant to outstanding options and awards
granted pursuant to LSIs 2003 Equity Incentive Plan (the
LSI 2003 Stock Plan),
(iv) 18,457,370 shares of LSI Common Stock were
available for purchase pursuant to LSIs Employee Stock
Purchase Plan and International Stock Purchase Plan (the
LSI ESPP), (v) 26,080,460 shares of
Common Stock were issuable upon conversion of LSIs 4%
Convertible Subordinated Notes due May 2010 (the LSI
Convertible Notes), and (vi) no shares of LSI
Common Stock were issued and held in the treasury of LSI. Since
November 30, 2006, LSI has not issued any securities
(including derivative securities) except for shares of LSI
Common Stock issued upon exercise of stock options or other
stock awards.
(b) Section 4.4(b) of the LSI Disclosure Letter
sets forth a complete and accurate list of all stock option
plans or any other plan or agreement adopted by LSI that
provides for the issuance of equity to any Person (the
LSI Stock Plans). LSI has made
available to Agere complete and accurate copies of all LSI Stock
Plans and the forms of all award agreements evidencing
outstanding LSI Stock Awards.
(c) Except as described in Section 4.4(a) of
this Agreement, no capital stock of LSI or any of its
Subsidiaries or any security convertible or exchangeable into or
exercisable for such capital stock, is issued, reserved for
issuance or outstanding as of the date of this Agreement. Except
as described in Section 4.4(a) of this Agreement and
except for changes since the date of this Agreement resulting
from the exercise of employee stock options outstanding on such
date and described on Section 4.4(b) of the LSI
Disclosure Letter, there are no exercisable securities, there
are no options, preemptive rights, warrants, calls, rights,
commitments, agreements, arrangements or understandings of any
kind to which LSI or any of its Subsidiaries is a party, or by
which LSI or any of its Subsidiaries is bound, obligating LSI or
any of its Subsidiaries to issue, deliver or sell, or cause to
be issued, delivered or sold, additional shares of capital stock
of LSI or any of its Subsidiaries or obligating LSI or any of
its Subsidiaries to grant, extend or accelerate the vesting of
or enter into any such option, warrant, call, right, commitment,
agreement, arrangement or understanding. There are no
stockholder agreements, voting trusts, proxies or other similar
agreements, arrangements or understandings to which LSI or any
of its Subsidiaries is a party, or by which it or they are
bound, obligating LSI or any of its Subsidiaries with respect to
any shares of capital stock of LSI or any of its Subsidiaries.
There are no rights or obligations, contingent or otherwise
(including rights of first refusal in favor of LSI), of LSI or
any of its Subsidiaries, to repurchase, redeem or otherwise
acquire any shares of capital stock of LSI or any of its
Subsidiaries or to provide funds to or make any investment (in
the form of a loan, capital contribution or otherwise) in any
such Subsidiary or any other entity. There are no registration
rights or other agreements, arrangements or understandings to
which LSI or any of its Subsidiaries is a party, or by which it
or they are bound, obligating LSI or any of its Subsidiaries
with respect to any shares of LSI Common Stock or shares of
capital stock of any such Subsidiary.
(d) All outstanding shares of LSI Common Stock are, all
shares of LSI Common Stock reserved for issuance as specified
above, and all shares of LSI Common Stock to be issued in the
Merger pursuant to Section 2.7(a) or upon the
exercise of Assumed Options pursuant to
Section 2.7(e), will be, upon issuance on the terms
and conditions specified in the instruments pursuant to which
they are issuable, duly authorized,
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validly issued, fully paid and nonassessable and not subject to
or issued in violation of any purchase option, call option,
right of first refusal, preemptive right, subscription right or
any similar right under any provision of the DGCL, the LSI
Certificate of Incorporation or the LSI Bylaws or any agreement
to which Agere is a party or otherwise bound. None of the
outstanding shares of LSI Common Stock have been issued in
violation of any United States federal or state securities laws.
All of the outstanding shares of capital stock of each of the
Subsidiaries of LSI are duly authorized, validly issued, fully
paid and nonassessable, and all such shares (other than
directors qualifying shares in the case of foreign
Subsidiaries) are owned by LSI or a Subsidiary of LSI free and
clear of any and all Liens. There are no accrued and unpaid
dividends with respect to any outstanding shares of capital
stock of LSI or any of its Subsidiaries.
(e) LSI Common Stock constitutes the only class of equity
securities of LSI or its Subsidiaries registered or required to
be registered under the Exchange Act.
4.5 Authority; Requisite LSI Stockholder
Approval.
(a) LSI has full corporate power and authority to execute
and deliver this Agreement and, subject only to the approval of
the stockholders of LSI as described below, to consummate the
transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions
contemplated hereby (including the Merger) have been duly and
validly approved by the LSI Board. As of the date of this
Agreement, the LSI Board has unanimously determined that this
Agreement and the transactions contemplated hereby are advisable
and in the best interests of the LSI stockholders and has
unanimously recommended that the LSI Stockholders approve the
issuance of shares of Common Stock in the Merger (the
LSI Voting Proposal). This Agreement has been
duly and validly executed and delivered by LSI, and assuming due
authorization, execution and delivery by LSI, this Agreement
constitutes a valid and binding obligation of LSI, enforceable
against LSI in accordance with its terms.
(b) Except for the approval of the LSI Voting Proposal by
the affirmative vote of the holders of a majority of votes cast
on the LSI Voting Proposal at the LSI Stockholder Meeting called
to consider the LSI Voting Proposal, provided that the total
vote cast on the LSI Voting Proposal represents over fifty
percent in interest of all securities entitled to vote on the
LSI Voting Proposal (the Requisite LSI Stockholder
Approval), no other corporate proceedings on the part
of LSI are necessary to approve or adopt this Agreement under
applicable Legal Requirements and to consummate the transactions
contemplated hereby.
4.6 Required Filings and Consents.
(a) The execution and delivery by LSI of this Agreement do
not, and the performance by LSI of its covenants and agreements
under this Agreement and the consummation by LSI of the
transactions contemplated by this Agreement will not,
(i) assuming receipt of the Requisite LSI Stockholder
Approval, conflict with or violate the LSI Certificate of
Incorporation or the LSI Bylaws or any LSI Subsidiary Documents,
(ii) assuming receipt of the government approvals
contemplated by Section 4.6(b) conflict with or
violate any Legal Requirements applicable to LSI or any of its
Subsidiaries or by which its or any of their respective
properties is bound or affected, (iii) require notice to or
the consent of any Person under, result in any breach of or
constitute a default (or an event that with notice or lapse of
time or both would become a default), or impair LSIs or
any of its Subsidiaries rights or alter the rights or
obligations of any third party under, or give to any third party
any rights of termination, amendment, payment, acceleration or
cancellation of, or result in the creation of a Lien on any of
the properties or assets (including intangible assets) of LSI or
any of its Subsidiaries pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which LSI or any
of its Subsidiaries is a party or by which LSI or any of its
Subsidiaries or its or any of their respective properties is
bound or affected, or (iv) give rise to or result in any
person having, or having the right to exercise, any preemptive
rights, rights of first refusal, rights to acquire or similar
rights with respect to any capital stock of LSI or any of its
Subsidiaries or any of their respective assets or properties,
except in the case of the preceding clauses (ii) through
(iv), inclusive, as would not reasonably be expected to have,
individually or in the aggregate, an LSI Material Adverse Effect.
(b) The execution and delivery by LSI of this Agreement do
not, and the performance by LSI of its covenants and agreements
under this Agreement and the consummation by LSI of the
transactions
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contemplated by this Agreement (including the Merger) will not,
require any consent, approval, order, license, authorization,
registration, declaration or permit of, or filing with or
notification to, any Governmental Authority, except (i) as
may be required by the HSR Act, (ii) as may be required
under any foreign antitrust or competition Legal Requirement,
including the EC Merger Regulation, (iii) the filing of a
Registration Statement with the SEC in accordance with the
Securities Act, and the filing of the Joint Proxy
Statement/Prospectus with the SEC in accordance with the
Exchange Act and as may be required under the Securities Act,
(iv) such consents, approvals, orders, licenses,
authorizations, registrations, declarations, permits, filings,
and notifications as may be required under applicable United
States federal and state securities laws, (v) the filing of
the Certificate of Merger or other documents as required by the
DGCL and (vi) such other consents, approvals, orders,
registrations, declarations, permits, filings and notifications
which, if not obtained or made, would not reasonably be expected
to have, individually or in the aggregate, an LSI Material
Adverse Effect.
4.7 LSI SEC Reports.
(a) LSI has filed and made available to LSI all forms,
reports, schedules, statements and other documents, including
any exhibits thereto, required to be filed by LSI with the SEC
since December 1, 2000 (collectively, the LSI SEC
Reports). The LSI SEC Reports, including all forms,
reports and documents filed by LSI with the SEC after the date
hereof and prior to the Effective Time, (i) were and, in
the case of the LSI SEC Reports filed after the date hereof,
will be, prepared in accordance with the applicable requirements
of the Securities Act, the Exchange Act and the Sarbanes-Oxley
Act, as the case may be, and the rules and regulations
thereunder, and (ii) did not at the time they were filed
(or if amended or superseded by a filing prior to the date of
this Agreement, then on the date of such filing), and in the
case of such forms, reports and documents filed by LSI with the
SEC after the date of this Agreement, will not as of the time
they are filed, contain any untrue statement of a material fact
or omit to state a material fact required to be stated in such
LSI SEC Reports or necessary in order to make the statements in
such LSI SEC Reports, in light of the circumstances under which
they were and will be made, not misleading. None of the
Subsidiaries of LSI is required to file any forms, reports,
schedules, statements or other documents with the SEC.
(b) Each of the consolidated financial statements
(including, in each case, any related notes and schedules)
contained in the LSI SEC Reports, including any LSI SEC Reports
filed after the date of this Agreement, complied or will comply,
as of its respective date, in all material respects with all
applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, was or will be
prepared in accordance with GAAP (except as may be indicated in
the notes thereto) applied on a consistent basis throughout the
periods involved and fairly presented in all material respects
or will fairly present in all material respects the consolidated
financial position of LSI and its Subsidiaries as of the
respective dates thereof and the consolidated results of its
operations and cash flows for the periods indicated, except that
any unaudited interim financial statements are subject to normal
and recurring year-end adjustments which have not been and are
not expected to be material in amount, individually or in the
aggregate.
(c) The chief executive officer and chief financial officer
of LSI have made all certifications required by
Sections 302 and 906 of the Sarbanes-Oxley Act, and the
statements contained in any such certifications are complete and
correct, and LSI is otherwise in compliance with all applicable
effective provisions of the Sarbanes-Oxley Act and the
applicable listing and corporate governance rules of the NYSE.
4.8 Disclosure Controls and Procedures.
(a) LSI and each of its Subsidiaries has established and
maintains, adheres to and enforces a system of internal
accounting controls which are effective in providing reasonable
assurance regarding the reliability of financial reporting and
the preparation of financial statements in accordance with GAAP,
including policies and procedures that (i) require the
maintenance of records that in reasonable detail accurately and
fairly reflect the material transactions and dispositions of the
assets of LSI and its Subsidiaries, (ii) provide reasonable
assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with GAAP, and
that receipts and expenditures of LSI and its Subsidiaries are
being made only in accordance with appropriate authorizations of
management and the LSI Board and (iii) provide reasonable
assurance regarding prevention or timely detection of
unauthorized acquisition, use or disposition of the assets of
LSI and its Subsidiaries.
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(b) To the knowledge of LSI, neither LSI nor its
independent auditors have identified (i) any significant
deficiency or material weakness in the system of internal
accounting controls utilized by LSI and its Subsidiaries,
(ii) any fraud, whether or not material, that involves
LSIs management or other employees who have a role in the
preparation of financial statements or the internal accounting
controls utilized by LSI and its Subsidiaries or (iii) any
claim or allegation regarding any of the foregoing.
(c) Neither LSI nor any of its Subsidiaries is a party to,
or has any commitment to become a party to, any joint venture,
partnership agreement or any similar Contract (including any
Contract relating to any transaction, arrangement or
relationship between or among LSI or any of its Subsidiaries, on
the one hand, and any unconsolidated affiliate, including any
structured finance, special purpose or limited purpose entity or
Person, on the other hand (such as any arrangement described in
Section 303(a)(4) of
Regulation S-K
of the SEC)) where the purpose or effect of such arrangement is
to avoid disclosure of any material transaction involving, or
material liabilities of, LSI or any of its Subsidiaries in
LSIs consolidated financial statements.
(d) Neither LSI nor any of its Subsidiaries nor, to the
knowledge of LSI, any director, officer, auditor, accountant,
consultant or representative of LSI or any of its Subsidiaries
has received or otherwise had or obtained knowledge of any
substantive complaint, allegation, assertion or claim, whether
written or oral, that LSI or any of its Subsidiaries has engaged
in questionable accounting or auditing practices. No current or
former attorney representing LSI or any of its Subsidiaries has
reported evidence of a material violation of securities laws,
breach of fiduciary duty or similar violation by LSI or any of
its officers, directors, employees or agents to the current the
LSI Board or any committee thereof or to any current director or
executive officer of LSI.
(e) To the knowledge of LSI, no employee of LSI or any of
its Subsidiaries has provided or is providing information to any
law enforcement agency regarding the commission or possible
commission of any crime or the violation or possible violation
of any applicable Legal Requirements of the type described in
Section 806 of the Sarbanes-Oxley Act by LSI or any of its
Subsidiaries. Neither LSI nor any of its Subsidiaries nor, to
the knowledge of LSI, any director, officer, employee,
contractor, subcontractor or agent of LSI or any such Subsidiary
has discharged, demoted, suspended, threatened, harassed or in
any other manner discriminated against an employee of LSI or any
of its Subsidiaries in the terms and conditions of employment
because of any lawful act of such employee described in
Section 806 of the Sarbanes-Oxley Act.
4.9 No Undisclosed
Liabilities. Except as reflected in the LSI
Balance Sheet, neither LSI nor any of its Subsidiaries has any
Liabilities, other than (i) Liabilities incurred since the
date of the LSI Balance Sheet in the ordinary course of business
consistent with past practice, (ii) Liabilities under this
Agreement or expressly permitted to be incurred under this
Agreement, and (iii) Liabilities that, individually and in
the aggregate, have not had, and would not reasonably be
expected to have, an LSI Material Adverse Effect.
4.10 Absence of Certain Changes or
Events. Since the date of the LSI Balance
Sheet through the date hereof, LSI has conducted its business in
the ordinary course of business consistent with past practice
and, since such date through the date hereof, there has not
occurred (i) any LSI Material Adverse Effect or
(ii) any action taken by LSI or event that would have
required the consent of LSI pursuant to Section 5.2
had such action or event occurred after the date of this
Agreement.
4.11 Compliance with Laws; Permits.
(a) LSI and its Subsidiaries are in compliance with, and
are not in default under or violation of (and have not received
any notice of material non-compliance, default or violation with
respect to) any Legal Requirement applicable to LSI or any of
its Subsidiaries or by which any of their respective properties
is bound, except for such non-compliance, defaults and
violations that would not reasonably be expected to have,
individually or in the aggregate, an LSI Material Adverse Effect.
(b) LSI and its Subsidiaries hold all permits, licenses,
easements, variances, exemptions, consents, certificates,
authorizations, registrations, orders and other approvals from
Governmental Entities that are material to the operation of the
business of LSI and its Subsidiaries taken as a whole as
currently conducted (collectively, the
LSI Permits). The LSI Permits are in
full force and effect, have not been violated in any material
respect and, to the knowledge of LSI, no suspension, revocation
or cancellation thereof has been
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threatened, and there is no Legal Proceeding pending or, to the
knowledge of LSI, threatened, seeking the suspension, revocation
or cancellation of any LSI Permits. No LSI Permit shall cease to
be effective as a result of the consummation of the transactions
contemplated by this Agreement.
4.12 Legal Proceedings;
Orders. Except as would not reasonably be
expected to have, individually or in the aggregate, an LSI
Material Adverse Effect, there are no material Legal Proceedings
(other than arising from or relating to the Merger or any of the
other transactions contemplated by this Agreement),
(a) pending against LSI or any of its Subsidiaries or any
of their respective properties or assets, or (b) to the
knowledge of LSI, threatened against LSI or any of its
Subsidiaries, or any of their respective properties or assets.
Neither LSI nor any Subsidiary of LSI is subject to any
outstanding Order that would reasonably be expected to prevent
or materially delay the consummation of the transactions
contemplated by this Agreement. There has not been nor are there
currently any internal investigations or inquiries being
conducted by LSI, the LSI Board (or any committee thereof) or
any third party at the request of any of the foregoing
concerning any financial, accounting, tax, conflict of interest,
self-dealing, fraudulent or deceptive conduct or other
misfeasance or malfeasance issues.
4.13 Material Contracts.
(a) For all purposes of and under this Agreement, an
LSI Material Contract shall mean:
(i) any material contract (as such term is
defined in Item 601(b)(10) of
Regulation S-K
of the SEC, other than those agreements and arrangements
described in Item 601(b)(10)(iii)) with respect to LSI and
its Subsidiaries;
(ii) any employment-related Contract or plan, including any
stock option plan, stock appreciation right plan or stock
purchase plan or material Contract, any of the benefits of which
will be increased, or the vesting of benefits of which will be
accelerated, by the consummation of the transactions
contemplated by this Agreement (whether alone or in connection
with subsequent or additional events);
(iii) any Contract containing any covenant
(A) limiting the right of LSI or any of its Subsidiaries to
engage in any line of business or to compete with any Person in
any line of business, or (B) prohibiting LSI or any of its
Subsidiaries (or, after the Closing Date, LSI) from engaging in
business with any Person or levying a fine, charge or other
payment for doing so;
(iv) any Contract (A) relating to the pending or
future disposition or acquisition by LSI or any of its
Subsidiaries after the date of this Agreement of a material
amount of assets other than in the ordinary course of business
or (B) pursuant to which LSI or any of its Subsidiaries
will acquire after the date of this Agreement any material
ownership interest in any other Person or other business
enterprise other than LSIs Subsidiaries;
(v) material manufacturing Contract;
(vi) any mortgages, indentures, guarantees, loans or credit
agreements, security agreements or other Contracts relating to
the borrowing of money or extension of credit, in each case in
excess of $25,000,000, other than (A) accounts receivables
and payables, (B) loans to direct or indirect wholly owned
Subsidiaries, and (C) advances to employees for travel and
business expenses, in each case in the ordinary course of
business consistent with past practice;
(vii) any settlement Contract with ongoing obligations
other than (A) releases that are immaterial in nature or
amount entered into in the ordinary course of business,
(B) settlement Contracts only involving the payment of cash
in amounts that do not exceed $5,000,000 in any individual case,
or (C) settlement Contracts relating to Patent licenses
entered into in the ordinary course of business, consistent with
past practices;
(viii) any Contract that is collectively bargained by LSI;
(ix) other than purchase orders in the ordinary course of
business, any other Contract that provides for payment
obligations by LSI or any of its Subsidiaries in any twelve
(12) month period of $15,000,000 or more in any individual
case that is not terminable by LSI or its Subsidiaries upon
notice of ninety
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(90) days or less without material liability to LSI or its
Subsidiary and is not disclosed pursuant to clauses (i)
through (viii) above, inclusive; and
(x) any Contract, or group of Contracts with a Person (or
group of affiliated Persons), the termination of which would be
reasonably expected to have an LSI Material Adverse Effect and
is not disclosed pursuant to clauses (i) through
(ix) above, inclusive.
(b) Section 4.13(b) of the LSI Disclosure
Letter contains a complete and accurate list of all LSI Material
Contracts as of the date hereof, to or by which LSI or any of
its Subsidiaries is a party or is bound, and identifies each
subsection of Section 4.13(a) that describes such
LSI Material Contract.
(c) Each LSI Material Contract is valid and binding on LSI
(and/or each such Subsidiary of LSI party thereto) and is in
full force and effect, other than those Contracts that by their
terms have expired or been terminated since the date hereof, and
neither LSI nor any of its Subsidiaries party thereto, nor, to
the knowledge of LSI, any other party thereto, is in breach of,
or default under, any such LSI Material Contract, and no event
has occurred that with notice or lapse of time or both would
constitute such a breach or default thereunder by LSI or any of
its Subsidiaries, or, to the knowledge of LSI, any other party
thereto, except for such failures to be in full force and effect
and such breaches and defaults that would not reasonably be
expected to have, individually or in the aggregate, an LSI
Material Adverse Effect.
4.14 Employee Benefit Matters.
(a) Section 4.14(a) of the LSI Disclosure
Letter sets forth a complete and accurate list of all
U.S. LSI Employee Plans. Neither LSI nor any ERISA
Affiliate has any plan or commitment to establish any new LSI
Employee Plan, to modify any LSI Employee Plan (except to the
extent required by law or to conform any such LSI Employee Plan
to the requirements of any applicable law, in each case as
previously disclosed to Agere in writing, or as required by this
Agreement), or to adopt or enter into any LSI Employee Plan.
(b) With respect to each LSI Employee Plan, LSI has made
available to Agere complete and accurate copies of (i) such
LSI Employee Plan (or a written summary of any unwritten plan)
together with all amendments, (ii) in the case of any plan
for which Forms 5500 are required to be filed, the three
most recent annual reports (Form 5500) with schedules
attached, (iii) in the case of any plan that is intended to
be qualified under Section 401(a) of the Code, the most
recent determination, opinion notification or advisory letter
from the IRS, and correspondence to or from the IRS or the DOL
with respect to such letter, (iv) each trust agreement,
group annuity contract, administration and similar material
agreements, investment management or investment advisory
agreements, (v) the most recent summary plan descriptions
and employee handbook, or other similar material employee
communications relating to employee benefits matters,
(vi) all personnel, payroll and employment manuals and
policies, (vii) the most recent annual and periodic
financial statements and other annual accounting of assets for
each LSI Employee Plan that is funded, (viii) all material
correspondence to or from any governmental agency relating to
any LSI Employee Plan within the past two (2) years, and
(ix) the three (3) most recent plan years
discrimination tests for each LSI Employee Plan.
(c) Each LSI Employee Plan has been established, maintained
and administered in all material respects in accordance with all
applicable Legal Requirements, including if applicable, ERISA
and the Code, and in accordance with its terms, and each of LSI,
LSIs Subsidiaries and their respective ERISA Affiliates
have in all material respects met their obligations with respect
to each LSI Employee Plan and have timely made (or timely will
make) all required contributions thereto.
(d) Section 4.14(d) of the LSI Disclosure
Letter contains a complete and accurate list of each LSI
Employee Benefit Plan that has assets which include securities
issued by LSI, any of LSIs Subsidiaries or any of their
respective ERISA Affiliates.
(e) All LSI Employee Plans that are intended to be
qualified under Section 401(a) of the Code, and all trusts
that are intended to be qualified under Section 501(a) of
the Code (each, a LSI Qualified Plan), have
received determination, opinion or advisory letters from the
Internal Revenue Service to the effect that such LSI Employee
Plans are qualified and the plans and trusts related thereto are
exempt from federal income taxes under Sections 401(a) and
501(a), respectively, of the Code, or LSI has remaining a period
of time under
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applicable U.S. Department of the Treasury regulations or
Internal Revenue Service pronouncements in which to apply for
such a letter and to make any amendments necessary to obtain a
favorable determination as to the qualified status of each such
LSI Qualified Plan. No such determination, opinion or advisory
letter has been revoked and, to the knowledge of LSI, revocation
has not been threatened, and no such LSI Employee Plan has been
amended or operated since the date of its most recent
determination letter or application therefor in any respect, and
no act or omission has occurred, that would reasonably be
expected to adversely affect its qualification or materially
increase its cost. There has been no termination, partial
termination or discontinuance of contributions to any LSI
Qualified Plan that resulted or may reasonably be expected to
result in material liability to LSI. No prohibited
transaction, within the meaning of Section 4975 of
the Code or Sections 406 and 407 of ERISA, and not
otherwise exempt under Section 408 of ERISA, has occurred
with respect to any LSI Employee Plan.
(f) Neither LSI, any of LSIs Subsidiaries nor any of
their respective ERISA Affiliates has in the past six
(6) years maintained, participated in or contributed to (or
been obligated to contribute to) or can reasonably be expected
to have future material liability with respect to (i) a
multiemployer plan (as defined in
Section 4001(a)(3) of ERISA), (ii) a multiple
employer plan as defined in ERISA or the Code, or
(iii) a funded welfare plan within the meaning
of Section 419 of the Code. No LSI Employee Plan is funded
by, associated with or related to a voluntary
employees beneficiary association within the meaning
of Section 501(c)(9) of the Code. No LSI Employee Plan
provides health benefits that are not fully insured through an
insurance contract.
(g) The Pension Plans set forth in
Section 4.14(g) of the LSI Disclosure Letter are the
only Pension Plans that LSI or any LSI ERISA Affiliate has
maintained, sponsored, participated or contributed to in the
preceding six (6) years, or currently maintains, sponsors,
participates in or contributes to, or can reasonably be expected
to have future material liability with respect to, that is
subject to Title IV of ERISA or Section 412 of the
Code (each, an LSI Pension Plan). As of the
Effective Time: (i) no legal or administrative action has
been taken by the PBGC to terminate or to appoint a trustee to
administer any LSI Pension Plan; (ii) no liability to the
PBGC under Title IV of ERISA has been incurred by LSI or an
LSI ERISA Affiliate that has not been satisfied in full;
(iii) no LSI Pension Plan has a reportable event within the
meaning of Section 4043 of ERISA for which the 30 day
notice requirement has not been waived by the PBGC has occurred
within the past six years or is reasonably expected to occur
with respect to any LSI Employee Plan; and (iv) no LSI
Pension Plan has incurred any event described in
Section 4041, 4062 or 4063 of ERISA. No complete or partial
termination of any LSI Employee Plan subject to Title IV of
ERISA has occurred or is expected to occur and no proceedings
have been instituted and, to the knowledge of LSI, no condition
exists and no event has occurred that is reasonably likely to
constitute grounds under Title IV of ERISA to terminate or
appoint a trustee to administer any LSI Pension Plan. Each LSI
Pension Plan has been maintained in compliance with the minimum
funding standards of ERISA and the Code where applicable and no
LSI Pension Plan subject to §412 or 418B of the Code or
§302 of ERISA has incurred any accumulated funding
deficiency within the meaning of §412 or 418B of the Code
or §302 of ERISA, respectively, or has applied for or
obtained a waiver from the IRS of any minimum funding
requirement or an extension of any amortization period under
§412 of the Code or §303 or 304 of ERISA. Except for
payments of premiums to the PBGC, which have been paid in full,
LSI has not incurred any liability (including any indirect
liability through an agreement with any other party and any
material contingent or material secondary liability) to the PBGC
in connection with any LSI Pension Plan covering any active,
retired or former employees or directors of LSI, including any
liability under §4069 or 4212(c) of ERISA or any penalty
imposed under §4071 of ERISA, or ceased operations at any
facility or withdrawn from any such LSI Pension Plan in a manner
which could subject it to liability under §4062, 4063 or
4064 of ERISA, or knows of any facts or circumstances that might
give rise to any liability of LSI to the PBGC under
Title IV of ERISA that could reasonably be anticipated to
result in any PBGC Claims being made against LSI.
Section 4.14(g) of the LSI Disclosure Letters sets
forth the approximate liability for any LSI Pension Plan
accumulated funding deficiency within the meaning of §412
or 418B of the Code or §302 of ERISA.
(h) Other than as required under Section 601 et seq.
of ERISA or equivalent state law, none of the LSI Employee Plans
promises or provides health or other welfare benefits (excluding
normal claims for benefits
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under LSIs group life insurance, accidental death and
dismemberment insurance and disability plans and policies) or
coverage to any person following retirement or other termination
of employment.
(i) There is no action, suit, proceeding, claim,
arbitration, audit or investigation pending or, to the knowledge
of LSI, threatened or reasonably anticipated, with respect to
any LSI Employee Plan or the assets of any LSI Employee Benefit
Plan, other than claims for benefits in the ordinary course. No
LSI Employee Plan is or within the last three calendar years has
been the subject of, or has received notice that it is the
subject of, examination by a government agency or a participant
in a government sponsored amnesty, voluntary compliance or
similar program.
(j) To the knowledge of LSI, each individual who has
received compensation for the performance of services on behalf
of LSI, any of LSIs Subsidiaries or any of their
respective ERISA Affiliates has been properly classified as an
employee or independent contractor in accordance with applicable
Legal Requirement.
(k) Each LSI Employee Plan maintained or covering employees
outside the United States (the
LSI Non-U.S. Employee
Plans), and the books and records thereof, is in
material compliance with all applicable Legal Requirements of
each applicable jurisdiction. No such LSI
Non-U.S. Employee
Plan has unfunded liabilities, that as of the Effective Time,
will not be offset by insurance or fully accrued.
Section 4.14(k) of the LSI Disclosure Letter
contains a complete and accurate list of each country in which
LSI or any of its Subsidiaries or affiliates has operations as
of the LSI Balance Sheet Date and the approximate number of
employees in each such country as of the LSI Balance Sheet Date.
(l) Section 4.14(l) of the LSI Disclosure
Letter sets forth a complete and accurate list of (i) all
employment agreements with employees of LSI or any of its
Subsidiaries, other than customary offer letters and other
similar employment agreements entered into in the ordinary
course of business; and (ii) all operative severance
agreements, programs and policies of LSI or any of its
Subsidiaries with or relating to its Section 16 officers,
excluding programs and policies required to be maintained by
Legal Requirement.
(m) All contributions required to be made with respect to
any LSI Employee Plan on or prior to the Effective Time have
been or will be timely made or are reflected on LSI Balance
Sheet.
(n) The negotiation or consummation of the transactions
contemplated by this Agreement will not, either alone or in
combination with another event, (i) entitle any current or
former employee, director, consultant or officer of LSI or any
Subsidiary of LSI to severance pay, or any other payment from
LSI or any of its Subsidiaries, or pursuant to any LSI Employee
Plan, (ii) accelerate the time of distribution, payment or
vesting, a lapse of repurchase rights or increase the amount of
compensation or benefits due any such employee, director or
officer, (iii) result in the forgiveness of indebtedness,
or (iv) trigger an obligation to fund benefits.
Section 4.14(n) of the LSI Disclosure Letter
contains a complete and accurate list of each LSI
disqualified individual (as defined in Code
Section 280G and the regulations thereunder). No payment or
benefit which will or may be made by LSI or its ERISA Affiliates
with respect to any current or former employee or any other
disqualified individual is reasonably expected to be
characterized as a parachute payment, within the
meaning of Section 280G(b)(2) of the Code. There is no
contract, agreement, plan or arrangement to which LSI or any
ERISA Affiliates is a party or by which it is bound to
compensate any current or former employee or other disqualified
individual for excise taxes paid pursuant to Section 4999
of the Code.
(o) Each material nonqualified deferred compensation plan
maintained or sponsored by LSI (as such term is defined in
Section 409A(d)(1) of the Code) has been operated since
January 1, 2005 in good faith compliance with
Section 409A of the Code and IRS Notice
2005-1. No
material nonqualified deferred compensation plan has been
materially modified (within the meaning of IRS
Notice
2005-1) at
any time after October 3, 2004.
(p) No stock option, stock appreciation right or service
provider warrant of LSI (i) has an exercise price that has
been or may be less than the fair market value of the underlying
equity as of the date such option or right was granted or
(ii) has any feature for the deferral of compensation other
than the deferral of recognition of income until the later of
exercise or disposition of such option or right.
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(q) There is no Contract to which LSI or any of its
Subsidiaries is a party, including the provisions of this
Agreement, covering any employee, consultant or director of LSI
or any of its Subsidiaries, which, individually or collectively,
reasonably could be expected to give rise to the payment of any
amount that would not be deductible pursuant to
Sections 280G, 404 or 162(m) of the Code or that would give
rise to a penalty under Section 409A of the Code.
4.15 Labor Matters.
(a) LSI and each of its Subsidiaries: (i) has withheld
and reported all amounts required by law or by agreement to be
withheld and reported with respect to wages, salaries and other
payments to employees; (ii) is not liable for any arrears
of wages or any taxes or any penalty for failure to comply with
any of the foregoing; and (iii) is not liable for any
payment to any trust or other fund governed by or maintained by
or on behalf of any governmental authority, with respect to
unemployment compensation benefits, social security or other
benefits or obligations for employees (other than routine
payments to be made in the normal course of business and
consistent with past practice), except, in each case, for any
failure to withhold, report or pay which would have or could
reasonably be expected to have an LSI Material Adverse Effect.
(b) To the knowledge of LSI: (i) there are no current
labor union organizing activities with respect to any employees
of LSI
and/or any
of its Subsidiaries, (ii) no labor union, labor
organization, trade union, works council, or group of employees
of LSI
and/or any
of its Subsidiaries has made a pending demand for recognition or
certification, (iii) there are no representation or
certification proceedings or petitions seeking a representation
proceeding presently pending or threatened in writing to be
brought or filed with the National Labor Relations Board or any
other labor relations tribunal or authority, and (iv) there
are no labor strikes or lockouts, or threats thereof, against or
affecting LSI or any of its Subsidiaries.
(c) LSI and each of its Subsidiaries are and have been in
material compliance with all notice and other requirements under
the WARN Act, and any similar foreign, state or local law
relating to plant closings and layoffs
4.16 Properties. LSI and
each of its Subsidiaries have good and valid title to, or a
valid leasehold interest in, all the properties and assets which
it purports to own or lease (real, tangible, personal and
mixed), including all the properties and assets reflected in the
LSI Balance Sheet (except for personal property sold since the
date of the LSI Balance Sheet in the ordinary course of business
consistent with past practice). All properties and assets
reflected in the LSI Balance Sheet are free and clear of all
Liens, except for Liens reflected on the LSI Balance Sheet and
Liens for current taxes not yet due and other Liens that do not
materially impair the use of the property or assets subject
thereto. All real property leases, subleases, licenses or other
occupancy agreements to which LSI or any of its Subsidiaries is
a party (collectively, the LSI Real Property
Leases) are in full force and effect, except where the
failure of such LSI Real Property Leases to be in full force and
effect would not be reasonably likely to result in an LSI
Material Adverse Effect. There is no default by LSI or any of
its Subsidiaries under any of the LSI Real Property Leases, or,
to the knowledge of LSI, defaults by any other party thereto,
except such defaults as have been waived in writing or cured or
such defaults that in the aggregate would not be reasonably
likely to result in an LSI Material Adverse Effect.
4.17 Tax Matters. LSI and
each of its Subsidiaries have prepared and timely filed (taking
into account any extension of time within which to file) all
material Tax Returns required to be filed by any of them and all
such filed Tax Returns are true, correct and complete in all
material respects, (ii) LSI and each of its Subsidiaries
have paid all Taxes that are required to be paid by any of them,
except with respect to matters for which adequate reserves have
been established on the Financial Statements in accordance with
GAAP, (iii) the U.S. consolidated federal income Tax
Returns of LSI have been examined by the Internal Revenue
Service (or the period for assessment of the Taxes in respect of
which such Tax Returns were required to be filed has expired)
for all periods ending on or before December 30, 2001,
(iv) there are not pending or threatened in writing, any
audits, examinations, investigations or other proceedings in
respect of income Taxes or other material Taxes, (v) there
are no Liens for Taxes on any of the assets of LSI or any of its
Subsidiaries other than Liens for Taxes not yet due and payable
or being contested in good faith and for which adequate reserves
have been established on the Financial Statements in accordance
with GAAP, (vi) none of LSI or any of its Subsidiaries has
been a controlled corporation or a
distributing corporation in any distribution
occurring during the two-year period ending on the date hereof
that was purported or intended to be
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governed by Section 355 of the Code (or any similar
provision of state, local or foreign Law) and (vii) none of
LSI or any of its Subsidiaries has engaged in a reportable
transaction, within the meaning of Treas.
Reg. Section 1.6011-4(b),
including any transaction that is the same or substantially
similar to one of the types of transactions that the Internal
Revenue Service has determined to be a tax avoidance transaction
and identified by notice, regulation or other form of published
guidance as a listed transaction, as set forth in
Treas. Reg.
Section 1.6011-4(b)(2).
4.18 Environmental Matters.
(a) Except as would not reasonably be expected to have,
individually or in the aggregate, an LSI Material Adverse
Effect, no Hazardous Materials are present on any real property
that is currently owned, operated, occupied, controlled or
leased by LSI or any of its Subsidiaries or were present on any
real property at the time it ceased to be owned, operated,
occupied, controlled or leased by LSI or its Subsidiaries,
including the land, the improvements thereon, the groundwater
thereunder and the surface water thereon. Except as would not
reasonably be expected to have, individually or in the
aggregate, an LSI Material Adverse Effect, there are no
underground storage tanks, asbestos which is friable or likely
to become friable or PCBs present on any real property currently
owned, operated, occupied, controlled or leased by LSI or any of
its Subsidiaries or as a consequence of the acts of LSI, its
Subsidiaries or their agents.
(b) Except as would not reasonably be expected to have,
individually or in the aggregate, an LSI Material Adverse
Effect, LSI and its Subsidiaries have conducted all Hazardous
Material Activities in compliance in all material respects with
all applicable Environmental Laws. Except as would not
reasonably be expected to have, individually or in the
aggregate, an LSI Material Adverse Effect, the Hazardous
Materials Activities of LSI and its Subsidiaries prior to the
Closing have not resulted in the exposure of any person to a
Hazardous Material in a manner which has caused or could
reasonably be expected to cause an adverse health effect to any
such person.
(c) Except as would not reasonably be expected to have,
individually or in the aggregate, an LSI Material Adverse
Effect, LSI and its Subsidiaries have complied in all material
respects with all covenants and conditions of any Environmental
Permit which is or has been in force with respect to its
Hazardous Materials Activities. No circumstances exist which
could reasonably be expected to cause any material Environmental
Permit to be revoked, modified, or rendered non-renewable upon
payment of the permit fee.
(d) No action, proceeding, revocation proceeding, amendment
procedure, writ, injunction or claim is pending, or to the
knowledge of LSI, threatened, concerning or relating to any
Environmental Permit or any Hazardous Materials Activity of LSI
or any of its Subsidiaries that would reasonably be expected to
have, individually or in the aggregate, an LSI Material Adverse
Effect.
(e) Neither LSI nor any of its Subsidiaries is aware of any
fact or circumstance that could result in any Liability under an
Environmental Law which would reasonably be expected to have an
LSI Material Adverse Effect. Except as would not reasonably be
expected to have an LSI Material Adverse Effect, neither LSI nor
any Subsidiary has entered into any Contract that may require it
to guarantee, reimburse, pledge, defend, hold harmless or
indemnify any other party with respect to liabilities arising
out of Environmental Laws or the Hazardous Materials Activities
of LSI or any of its Subsidiaries.
(f) LSI and the Subsidiaries have delivered to LSI or made
available for inspection by LSI and its agents, representatives
and employees all material environmental site assessments and
environmental audits in LSIs possession or control. LSI
and the Subsidiaries have complied in all material respects with
all environmental disclosure obligations imposed by applicable
law with respect to this transaction.
4.19 Intellectual Property Matters.
(a) Section 4.19(a) of the LSI Disclosure
Letter contains a complete and accurate list of all Patents that
are Registered Intellectual Property owned or purported to be
owned by LSI or any of its Subsidiaries (such Patents and all
other material Registered Intellectual Property owned or
purported to be owned by LSI or any of its Subsidiaries,
collectively the LSI Registered Intellectual
Property).
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(b) All material LSI Registered Intellectual Property
Rights are owned exclusively by LSI or one or more of its
Subsidiaries free and clear of any Liens (excluding any rights
granted to any licensee of any LSI Intellectual Property Right
entered into in the ordinary course of business). Neither LSI
nor any of its Subsidiaries has transferred ownership of, or
granted an exclusive license to, any third party, of any
Intellectual Property Rights that are or were material LSI
Registered Intellectual Property Rights.
(c) Neither LSI nor its Subsidiaries has, in the conduct of
the business of LSI and its Subsidiaries as currently conducted,
knowingly infringed upon, violated or used without
authorization, of any Intellectual Property Rights owned by any
third Person. There is no pending or, to LSIs knowledge,
threatened (and at no time within the three (3) years prior
to the date of this Agreement has there been pending any) suit,
arbitration or other adversarial proceeding before any court,
government agency or arbitral tribunal, or in any jurisdiction,
against LSI or any of its Subsidiaries, alleging that any
activities or conduct of LSIs or any of its
Subsidiaries business infringes or will infringe upon,
violate or constitute the unauthorized use of the Intellectual
Property Rights of any third Person, or challenging the
ownership, validity, enforceability, or registerability of any
LSI Intellectual Property Rights. LSI is not party to any
settlements, covenants not to sue, consents, decrees,
stipulations, judgments, or orders resulting from suits, actions
or similar legal proceedings, which (i) materially restrict
LSIs or any of its Subsidiaries rights to use,
license or transfer any LSI Intellectual Property Rights,
(ii) materially restrict the conduct of the business of LSI
or any of its Subsidiaries in order to accommodate any third
partys Intellectual Property Rights, or (iii) compel
or require LSI or any of its Subsidiaries to license or transfer
any LSI Intellectual Property Rights.
(d) Neither LSI nor any LSI Subsidiary has committed,
agreed or become obligated to license on a royalty-free basis
any LSI Intellectual Property Rights to any third Person as a
result of any participation in an industry association, standard
setting organization or similar body, or otherwise.
(e) LSI and its Subsidiaries have taken commercially
reasonable measures consistent with industry standard practices
to protect the proprietary nature of the Trade Secrets owned by
LSI or such Subsidiary that is material to the business of LSI
and its Subsidiaries as currently conducted.
(f) To the knowledge of LSI, all material LSI Intellectual
Property Rights are, and following the transactions contemplated
hereby shall be, freely, transferable, licensable and alienable
without the consent of, or notice or payment of any kind to any
Governmental Authority or third party.
(g) To the knowledge of LSI, no third party is
misappropriating, infringing, diluting or violating any LSI
Intellectual Property Rights in a manner that has or would
reasonably be expected to have an LSI Material Adverse Effect.
There are no pending claims, suits, arbitrations or other
adversarial proceedings before any court, government agency or
arbitral tribunal brought by LSI or any of its Subsidiaries
against any third party with respect to any LSI Intellectual
Property Rights, which remain unresolved as of the date hereof.
(h) Section 4.19(h) of the LSI Disclosure
Letter contains a complete and accurate list of all material
Contracts pursuant to which a third party has licensed to LSI or
any of its Subsidiaries any Intellectual Property Right that is
material to the business of LSI or any LSI Subsidiary
(LSI In Licenses), other than Contracts with
respect to commercial available Technology that is not included
in an LSI Product or necessary to the manufacture of any LSI
Product.
(i) Section 4.19(i) of the LSI Disclosure
Letter contains a complete and accurate list of all material
Contracts pursuant to which LSI or any of its Subsidiaries has
granted a third Person or affiliate any rights or licenses to
any LSI Intellectual Property Rights, other than non-exclusive
licenses granted in the ordinary course of business
(LSI Out Licenses, and together with the LSI
In Licenses, the LSI IP Licenses).
(j) Neither LSI nor any of its Subsidiaries, nor, to the
knowledge of LSI any other party to an LSI IP License, is in
material breach of any such LSI IP License that is material to
the business of LSI and its Subsidiaries, taken as a whole. The
consummation of the transactions contemplated hereby will not
result or cause (i) the breach by LSI or any of its
Subsidiaries of any LSI IP License, (ii) the termination,
impairment or restriction of any right or license granted to LSI
or any of its Subsidiaries under an LSI IP License, or
(iii) LSI or any of its Subsidiaries to grant, or expand
the scope of a prior grant, to a third party of any rights to
any
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material LSI Intellectual Property Rights (including by release
of any source code), except as would not reasonably be expected
to have an LSI Material Adverse Effect.
4.20 Insurance. All fire and
casualty, general liability, business interruption, product
liability, sprinkler and water damage insurance policies and
other forms of insurance maintained by LSI or any of its
Subsidiaries have been made available to LSI. Each such policy
is in full force and effect and all premiums due thereon have
been paid in full.
4.21 Interested Party
Transactions. Since December 31, 2005,
no event has occurred that would be required to be reported as a
Certain Relationship or Related Transaction pursuant to
Statement of Financial Accounting Standards No. 57.
4.22 Brokers, Finders and Financial
Advisors. No broker, finder or investment
banker (other than Morgan Stanley & Co. Incorporated
(Morgan Stanley), whose brokerage, finders or
other fees will be paid by LSI) is entitled to any brokerage,
finders or other fee or commission in connection with the
transactions contemplated by this Agreement based upon
arrangements made by or on behalf of LSI or any of its
Subsidiaries. LSI has furnished to Agere a complete and correct
copy of all agreements between LSI and Morgan Stanley pursuant
to which such firm would be entitled to any such payment.
4.23 Opinion of Financial Advisor of
LSI. The financial advisor of LSI, Morgan
Stanley, has delivered to the Board of Directors of LSI an
opinion to the effect that, as of the date of this Agreement,
and based upon and subject to the matters set forth therein, the
Exchange Ratio is fair, from a financial point of view, to LSI.
Such opinion has not been withdrawn, revoked or modified.
4.24 Takeover Statutes. No
Takeover Statute is applicable to LSI, the Merger or any of the
other transactions contemplated by this Agreement.
ARTICLE V
CONDUCT OF
BUSINESS
5.1 Affirmative
Obligations. Except (i) as expressly
contemplated or permitted by this Agreement, (ii) as
required by Legal Requirements, (iii) as set forth in
Section 5.1 of the Agere Disclosure Letter or the
LSI Disclosure Letter, or (iv) as approved in advance by
the other party hereto in writing (which approval shall not be
unreasonably withheld, delayed or conditioned), at all times
during the period commencing with the execution and delivery of
this Agreement and continuing until the earlier to occur of the
termination of this Agreement pursuant to
Article VIII and the Effective Time, each of Agere
and LSI shall, and each of them shall cause its Subsidiaries to
(i) carry on its business in the usual, regular and
ordinary course in substantially the same manner as heretofore
conducted and in compliance with all applicable Legal
Requirements, (ii) pay its debts and Taxes when due, in
each case subject to good faith disputes over such debts or
Taxes, (iii) pay or perform all material obligations when
due and (iv) use reasonable best efforts, consistent with
past practices and policies, to (A) preserve intact its
present business, (B) keep available the services of its
present officers and employees and (C) preserve its
relationships with customers, suppliers, distributors,
licensors, licensees and others with which it has significant
business dealings.
5.2 Negative
Obligations. Except (i) as expressly
contemplated or permitted by this Agreement, (ii) as may be
required by Legal Requirements, (iii) as set forth in
Section 5.2 of the Agere Disclosure Letter or the
LSI Disclosure Letter, as the case may be, or (iv) as
approved in advance by the other party hereto in writing (which
approval shall not be unreasonably withheld, delayed or
conditioned), at all times during the period commencing with the
execution and delivery of this Agreement and continuing until
the earlier to occur of the termination of this Agreement
pursuant to Article VIII and the Effective Time,
neither Agere nor LSI shall, nor shall either of them cause or
permit any of their respective Subsidiaries to, do any of the
following:
(a) propose to adopt any amendments to or amend its
certificate of incorporation or bylaws or comparable
organizational documents, provided that the organizational
documents of Subsidiaries may be amended in a way that is not
material;
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(b) authorize for issuance, issue, sell, deliver or agree
or commit to issue, sell or deliver (whether through the
issuance or granting of options, warrants, other equity-based
(whether payable in cash, securities or other property or any
combination of the foregoing) commitments, subscriptions, rights
to purchase or otherwise) any of its securities or any
securities of any of its Subsidiaries, except for (i) the
issuance and sale of shares of common stock pursuant to stock
options or restricted stock units outstanding prior to the date
hereof, (ii) grants of purchase rights under an employee
stock purchase or other similar plan, and (iii) grants to
newly hired employees of stock options to purchase common stock
granted in the ordinary course of business consistent with past
practice, with a per share exercise price that is no less than
the then-current market price of a share of common stock and not
subject to any accelerated vesting or other provision that would
be triggered solely as a result of the consummation of the
transactions contemplated hereby.
(c) acquire or redeem, directly or indirectly, or amend any
of its securities or any securities of any of its Subsidiaries;
provided, however, that nothing in this
paragraph (c) shall prohibit Agere or LSI from
dissolving
and/or
merging into any of its Subsidiaries certain other Subsidiaries
that are not material to it and its Subsidiaries, taken as a
whole;
(d) other than cash dividends made by any of its direct or
indirect wholly owned Subsidiaries to itself or one of its
Subsidiaries, split, combine or reclassify any shares of capital
stock, declare, set aside or pay any dividend or other
distribution (whether in cash, shares or property or any
combination thereof) in respect of any shares of capital stock,
or make any other actual, constructive or deemed distribution in
respect of the shares of capital stock; provided,
however, that nothing in this paragraph (d) shall
prohibit Agere or LSI from dissolving
and/or
merging into any of its Subsidiaries certain other Subsidiaries
that are not material to it and its Subsidiaries, taken as a
whole;
(e) propose or adopt a plan of complete or partial
liquidation, dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization of it or any of its
Subsidiaries (other than the transactions contemplated hereby);
provided, however, that nothing in this
paragraph (e) shall prohibit Agere or LSI from
dissolving
and/or
merging into any of its Subsidiaries certain other Subsidiaries
that are not material to it and its Subsidiaries, taken as a
whole;
(f) (i) incur or assume any long-term or short-term
debt or issue any debt securities, except for (A) letters
of credit issued in the ordinary course of business consistent
with past practice, (B) short-term debt incurred to fund
operations of the business or for cash management purposes, in
each case in the ordinary course of business consistent with
past practice, (C) loans or advances to direct or indirect
wholly owned Subsidiaries in the ordinary course of business
consistent with past practices, and (D) with respect only
to existing indebtedness having a maturity date occurring after
the date of this Agreement but prior to the Effective Time, to
refinance, extend or renew the maturity of any existing
indebtedness in an amount not to exceed such existing
indebtedness, provided that such refinancing or extension
is at prevailing market interest rates and otherwise on terms
not materially less favorable in the aggregate than the existing
indebtedness being so refinanced, renewed or extended,
(ii) other than in the ordinary course of business, assume,
guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for any material
obligations of any other Person except obligations of any of
their respective direct or indirect wholly owned Subsidiaries,
(iii) make any material loans, advances or capital
contributions to or investments in any other Person or
(iv) mortgage or pledge any of its or its
Subsidiaries assets, tangible or intangible, or create or
suffer to exist any Lien thereupon, except (A) pursuant to,
or as permitted under the indebtedness described in (i),
(B) as incurred in the ordinary course of business
consistent with past practices, or (C) any rights granted
to any licensee of any Agere Intellectual Property Right entered
into in the ordinary course of business consistent with past
practice;
(g) except as may be required by applicable Legal
Requirements, or to satisfy contractual obligations existing on
the date hereof; (i) enter into, adopt, amend (including to
provide for the acceleration of vesting), modify or terminate
any bonus, profit sharing, compensation, severance, termination,
option, appreciation right, performance unit, stock equivalent,
share purchase agreement, pension, retirement, deferred
compensation, employment, severance or other employee benefit
agreement, trust, plan, fund or other arrangement for the
compensation, benefit or welfare of any consultant, director,
officer or employee in any manner or increase
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in any material manner the compensation or fringe benefits of
any consultant, director, officer or employee, or (ii) pay
any special bonus, remuneration or benefit to any director,
officer or employee not required by any plan or arrangement as
in effect as of the date hereof; provided, however, that
this paragraph (g) shall not prevent either company or
any of their respective Subsidiaries (A) from entering into
employment agreements, offer letters or retention agreements
with non-officer employees in the ordinary course of business
consistent with past practices, or (B) from increasing
annual compensation of non-officer employees
and/or from
providing for or amending bonus arrangements for non-officer
employees in the ordinary course of compensation reviews (to the
extent that such compensation increases and new or amended bonus
arrangements are consistent with past practice and do not result
in a material increase in benefits or compensation expense);
(h) forgive any loans to any of its employees, officers or
directors or any employees, officers or directors of any of its
Subsidiaries, or any of its Affiliates;
(i) make any deposits or contributions of cash or other
property to or take any other action to fund or in any other way
secure the payment of compensation or benefits under any of its
Employee Benefit Plans or any Employee Benefit Plans of any of
its Subsidiaries, other than deposits and contributions that are
required pursuant to the terms of any such Employee Benefit
Plans or any Contracts subject to any such Employee Benefit
Plans in effect as of the date hereof or as required by
applicable Legal Requirements;
(j) enter into, amend, or extend any collective bargaining
agreement;
(k) acquire, sell, lease, license or dispose of any
material property or assets in any single transaction or series
of related transactions, except for (i) transactions
pursuant to existing Contracts, (ii) transactions in the
ordinary course of business consistent with past practice, or
(iii) transactions not in excess of $10,000,000
individually, or $40,000,000 in the aggregate;
(l) except as may be required to remain in compliance with
applicable Legal Requirements or GAAP, make any change in any of
the accounting principles or practices used by it;
(m) make or change any material Tax election, adopt or
change any Tax accounting method, settle or compromise any
material Tax liability, or consent to the extension or waiver of
the limitations period applicable to a material Tax claim or
assessment;
(n) enter into any Contract that would be an Agere Material
Contract or an LSI Material Contract, as the case may be, or
amend in any material respect any Agere Material Contract or LSI
Material Contract, as the case may be, or grant any release or
relinquishment of any material rights under any Agere Material
Contract or LSI Material Contract, as the case may be;
(o) grant any exclusive rights with respect to any of its
material Intellectual Property Rights or the material
Intellectual Property Rights of any of its Subsidiaries, divest
any of its material Intellectual Property Rights or the material
Intellectual Property Rights of any of its Subsidiaries, or
materially modify the standard warranty terms for Agere Products
or LSI Products, as the case may be, or services or materially
amend or modify any product or service warranty;
(p) acquire (by merger, consolidation or acquisition of
stock or assets) any other Person or any equity interest therein;
(q) authorize, incur or commit to incur any new capital
expenditure(s) which in the aggregate exceed $40,000,000;
provided, however, that the foregoing shall not limit any
maintenance capital expenditures or capital expenditures
required pursuant to existing Contracts;
(r) settle or compromise any pending or threatened Legal
Proceeding or pay, discharge or satisfy or agree to pay,
discharge or satisfy any Liability, other than the settlement,
compromise, payment, discharge or satisfaction of Legal
Proceedings and Liabilities (i) reflected or reserved
against in full in the balance sheet included in the Agere
Balance Sheet or the LSI Balance Sheet, as the case may be,
(ii) covered by existing insurance policies,
(iii) settled since the respective dates thereof in the
ordinary course of business consistent with past practice,
including licensing and other settlements arising out of
Ageres Intellectual Property Business or
(iv) otherwise less than $500,000 individually and
$5,000,000 in the aggregate;
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(s) except as required by applicable Legal Requirements or
GAAP, revalue in any material respect any of its properties or
assets, including writing-off notes or accounts receivable other
than in the ordinary course of business consistent with past
practice;
(t) except as required by applicable Legal Requirements,
convene any regular or special meeting (or any adjournment or
postponement thereof) of its stockholders; or
(u) enter into a Contract to do any of the foregoing or
knowingly take any action which is reasonably expected to result
in any of the conditions to the consummation of the transactions
contemplated hereby not being satisfied, or knowingly take any
action which would materially impair its ability to consummate
the transactions contemplated by this Agreement in accordance
with the terms hereof or materially delay such consummation.
5.3 Supplemental Indenture
At the Closing, Agere shall execute and deliver to The Bank of
New York, as trustee (BONY) under the
Indenture, dated as of June 19, 2002, between Agere and
BONY, as supplemented by that Supplemental Indenture No. 1,
dated as of May 27, 2005 between Agere and BONY
(collectively, the Indenture) relating
to the Agere Subordinated Notes, a supplemental indenture
effective as of the Closing complying with the requirements of
the Indenture, in form and substance satisfactory to LSI.
ARTICLE VI
ADDITIONAL
AGREEMENTS
6.1 No Solicitation.
(a) Immediately following the execution and delivery of
this Agreement, each of Agere and LSI shall immediately cease
and cause to be terminated, and will cause their respective
officers, directors, employees, Subsidiaries, controlled
affiliates, investment bankers, attorneys and other advisors or
representatives to cease, any and all existing activities,
discussions or negotiations with any Persons conducted
heretofore with respect to any Acquisition Proposal relating to
Agere and LSI, respectively, and each of Agere and LSI shall
promptly request that all confidential information with respect
thereto furnished by or on behalf of Agere or LSI, as the case
may be, be returned or destroyed.
(b) At all times during the period commencing with the
execution and delivery of this Agreement and continuing until
the earlier to occur of the termination of this Agreement
pursuant to Article VIII and the Effective Time,
neither Agere nor LSI shall, nor shall either of them authorize
or permit any of its directors, officers or other employees,
Subsidiaries or controlled Affiliates, or any investment banker,
attorney or other advisor or representative retained by any of
them to, directly or indirectly:
(i) solicit, initiate, knowingly encourage or facilitate,
or induce the making, submission or announcement of, an
Acquisition Proposal relating to Agere or LSI, respectively;
(ii) furnish to any Person (other than the other party
hereto or any designees of such other party) any non-public
information relating to it or any of its Subsidiaries, or afford
access to its business, properties, assets, books or records or
the business, properties, assets, books or records of any of its
Subsidiaries (other than to the other party hereto or any
designees of such other party) in a manner intended to assist or
facilitate any inquiries or the making of any proposal that
constitutes or would reasonably be expected to lead to an
Acquisition Proposal relating to Agere or LSI, respectively, or
take any other action intended to assist or facilitate any
inquiries or the making of any proposal that constitutes or
could lead to an Acquisition Proposal relating to Agere or LSI,
respectively;
(iii) participate or engage in discussions or negotiations
with any Person (other than the other party hereto) with respect
to an Acquisition Proposal relating to Agere or LSI,
respectively;
(iv) approve, endorse or recommend an Acquisition Proposal
relating to Agere or LSI, respectively;
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(v) enter into any letter of intent, memorandum of
understanding or other Contract contemplating or otherwise
relating to an Acquisition Transaction relating to Agere or LSI,
respectively;
(vi) terminate, amend or expressly waive any rights under
any standstill or other similar Contract between it
or any of its Subsidiaries and any Person (other than the other
party hereto); or
(vii) propose publicly or agree to any of the foregoing
with respect to an Acquisition Proposal relating to Agere or
LSI, respectively.
provided, however, that notwithstanding the foregoing, at
any time prior to the receipt of the Requisite Agere Stockholder
Approval in the case of Agere, or receipt of the Requisite LSI
Stockholder Approval in the case of LSI, each of Agere or LSI
may, directly or indirectly through advisors, agents or other
intermediaries, subject to compliance with the provisions of
this Section 6.1, (A) engage or participate in
discussions or negotiations with any Person that has made (and
not withdrawn) a bona fide, Acquisition Proposal for such
party in writing that such partys board of directors
reasonably determines in good faith (after consultation with a
financial advisor of nationally recognized standing and its
outside legal counsel) constitutes or is reasonably likely to
lead to a Superior Proposal in respect of such party,
and/or
(B) furnish to any Person that has made (and not withdrawn)
a bona fide, Acquisition Proposal for such party in
writing that such partys board of directors reasonably
determines in good faith (after consultation with a financial
advisor of nationally recognized standing and its outside legal
counsel) constitutes or is reasonably likely to lead to a
Superior Proposal in respect of such party any non-public
information relating to such party or any of its Subsidiaries
pursuant to a confidentiality agreement the terms of which are
no less favorable to such party than those contained in the
Confidentiality Agreement, provided that in the case of any
action taken pursuant to the foregoing clauses (A) or
(B), (1) the board of directors of the party proposing to
take such action reasonably determines in good faith (after
consultation with outside legal counsel) that that the failure
to take such action would reasonably be expected to be a breach
of its fiduciary duties under Delaware Law, (2) at least
forty-eight (48) hours prior to engaging or participating
in any such discussions or negotiations with, or furnishing any
non-public information to, such Person, the party proposing to
take such action gives the other party hereto written notice of
the identity of such Person and the material terms and
conditions of such Acquisition Proposal (unless such Acquisition
Proposal is in written form, in which case the party proposing
to take such action shall give the other party hereto a copy of
all written materials comprising or relating thereto) and of
such partys intention to engage or participate in
discussions or negotiations with, or furnish non-public
information to, such Person, and (3) contemporaneously with
furnishing any non-public information to such Person, the party
proposing to take such action furnishes such non-public
information to the other party hereto (to the extent such
information has not been previously furnished to such other
party).
(c) Without limiting the generality of the foregoing, each
of Agere and LSI acknowledge and hereby agree that any breach or
violation of the restrictions set forth in this
Section 6.1 by any directors, officers or other
employees, Subsidiaries or controlled Affiliates, or any
investment banker, attorney or other advisor or representative
retained by any of them shall be deemed to be a breach of this
Section 6.1 by such party.
(d) In addition to the obligations of Agere and LSI set
forth in Section 6.1(a) and
Section 6.1(b), each of Agere and LSI shall
promptly, and in all cases within twenty four (24) hours of
its receipt, advise the other party hereto orally and in writing
of (i) any Acquisition Proposal it receives or
(ii) any request for information it receives that would
reasonably be expected to lead to an Acquisition Proposal the
material terms and conditions of such Acquisition Proposal or
request (including copies of all written materials comprising or
relating thereto), and the identity of the Person or group
making any such Acquisition Proposal or request.
(e) Each of Agere and LSI shall keep the other party hereto
reasonably informed on a current basis of the status of any
discussions with respect to any Acquisition Proposal and the
material terms and conditions (including all amendments or
proposed amendments) of any Acquisition Proposal, request or
inquiry it receives. In addition to the foregoing, each of Agere
and LSI shall provide the other party hereto with reasonably
prompt notice of a meeting of its board of directors (or any
committee thereof) at which its board of directors (or any
committee thereof) is reasonably expected to consider an
Acquisition Proposal it has received, and shall inform the other
party as promptly as practicable of any material change in the
price, structure, form of consideration or other material terms
and conditions of the Acquisition Proposal.
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6.2 Board Recommendations.
(a) Subject to the terms of Section 6.2(b),
(i) the Agere Board shall recommend that the Agere
Stockholders adopt this Agreement in accordance with the
applicable provisions of Delaware Law (the
Agere Board Recommendation), and
(ii) the LSI Board shall recommend that the LSI
Stockholders approve the issuance of shares of LSI Common Stock
in the Merger in accordance with the applicable rules of the
NYSE (the LSI Board Recommendation).
(b) Subject to the terms of this
Section 6.2(b), (x) neither the Agere Board nor
any committee thereof shall withhold, withdraw, amend or modify
in a manner adverse to LSI, or publicly propose to withhold,
withdraw, amend, modify, qualify or condition in a manner
adverse to LSI, the Agere Board Recommendation (an
Agere Board Recommendation Change), and
(y) neither the LSI Board nor any committee thereof shall
withhold, withdraw, amend, modify, qualify or condition in a
manner adverse to Agere, or publicly propose to withhold,
withdraw, amend or modify in a manner adverse to Agere, the LSI
Board Recommendation (an LSI Board Recommendation
Change);
provided, however, that notwithstanding the foregoing, at
any time prior to the receipt of the Requisite Agere Stockholder
Approval in the case of Agere, or receipt of the Requisite LSI
Stockholder Approval in the case of LSI, the Agere Board may
effect an Agere Board Recommendation Change and the LSI Board
may effect a LSI Board Recommendation Change, in either case if
and only if either:
(i) (A) the party proposing to take such action has
received an Acquisition Proposal relating to it that constitutes
a Superior Proposal other than as a result of a breach or
violation of the terms of Section 6.1,
(B) neither the party proposing to take such action nor any
of its representatives shall have breached or violated the
provisions of Section 6.1 in connection with such
Acquisition Proposal, (C) prior to effecting such Agere
Board Recommendation Change or the LSI Board Recommendation
Change, as the case may be, the party proposing to take such
action shall have given the other party hereto at least five
(5) days notice thereof and the opportunity to meet and
discuss in good faith a modification of the terms and conditions
of this Agreement so that the transactions contemplated hereby
may be effected and (D) the other party hereto shall not
have made, within five (5) days after receipt of such
partys written notice of its intention to effect an Agere
Board Recommendation Change or an LSI Board Recommendation
Change, as the case may be, a counter-offer or proposal that the
board of directors of the party proposing to take such action
reasonably determines in good faith, after consultation with a
financial advisor of nationally recognized standing and its
outside legal counsel, is at least as favorable to its
stockholders as such Superior Proposal and (E) after such
discussions, the board of directors of the party proposing to
take such action reasonably determines in good faith (after
consultation with its outside legal counsel and after
considering in good faith any counter-offer or proposal made by
the other party hereto pursuant to the immediately preceding
clause (D)) that the failure to effect such Agere Board
Recommendation Change or an LSI Board Recommendation Change, as
the case may be, would reasonably be expected to be a breach of
its fiduciary duties under Delaware Law; or
(ii) (A) prior to effecting the Agere Board
Recommendation Change or the LSI Board Recommendation Change, as
the case may be, the party proposing to take such action shall
have given the other party hereto at least five (5) days
notice thereof and the opportunity to meet and discuss in good
faith the purported basis for the proposed Agere Board
Recommendation Change or the LSI Board Recommendation Change, as
the case may be, the other partys reaction thereto and any
possible modification of the terms and conditions of this
Agreement in response thereto so that the transactions
contemplated hereby may be effected, and (B) after such
discussions, the board of directors of the party proposing to
take such action reasonably determines in good faith (after
consultation with outside legal counsel) that the failure to
effect such Agere Board Recommendation Change or LSI Board
Recommendation Change, as the case may be, would reasonably be
expected to be a breach of its fiduciary duties under Delaware
Law.
Each of Agere and LSI acknowledge and hereby agree that any
Agere Board Recommendation Change or LSI Board Recommendation
Change effected (or proposed to be effected) in response to or
in connection with a Superior Proposal may be made pursuant to
the immediately preceding clause (i) only, and may not be
made pursuant to the immediately preceding clause (ii) and
any Agere Board Recommendation Change or LSI Board
Recommendation Change, as the case may be, may only be made
pursuant to this Section 6.2(b).
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(c) Nothing in this Agreement shall prohibit the Agere
Board or the LSI Board from taking and disclosing to the Agere
Stockholders or the LSI Stockholders, respectively, a position
contemplated by
Rule 14e-2(a)
under the Exchange Act or complying with the provisions of
Rule 14d-9
promulgated under the Exchange Act, or with fiduciary duties
under applicable law; provided, however, that
neither Agere (with respect to statements made by the Agere
Board) nor LSI (with respect to statements made by the LSI
Board) pursuant to
Rule 14e-2(a)
under the Exchange Act or
Rule 14(d)-9
under the Exchange Act or as required by fiduciary duties shall
make disclosures that would amount to an Agere Board
Recommendation Change or an LSI Board Recommendation Change,
other than pursuant to Section 6.2(b).
(d) Nothing set forth in this Section 6.2 shall
(i) permit either party hereto to terminate this Agreement,
(ii) affect any other obligation of the parties hereto
under this Agreement, (iii) limit the obligation of either
party hereto to duly call, give notice of, convene and hold its
respective Merger Stockholder Meeting, (iv) relieve either
party hereto of its obligation to submit to a vote of its
stockholders the Agere Stockholder Proposal or the LSI
Stockholder Proposal, as applicable, at its respective Merger
Stockholder Meeting, or (v) permit either party hereto to
submit for a vote of its respective stockholders at or prior to
its respective Merger Stockholder Meeting any Acquisition
Proposal other than the Agere Voting Proposal and the LSI Voting
Proposal, as applicable.
6.3 Merger Stockholder Meetings.
(a) Each of Agere and LSI, acting through its board of
directors, shall take all actions in accordance with applicable
Legal Requirements, applicable rules of the NYSE, the Agere
Certificate of Incorporation and the Agere Bylaws in the case of
Agere, and the LSI Certificate of Incorporation and the LSI
Bylaws in the case of LSI, to duly call, give notice of, convene
and hold as promptly as practicable, and in any event within
forty-five (45) days after the declaration of effectiveness
of the Registration Statement, a meeting of its stockholders
(the Agere Stockholder Meeting in the case of
Agere, and the LSI Stockholder Meeting in the
case of LSI, and together, the Merger Stockholder
Meetings) for the purpose of considering and voting
upon the approval of the Agere Voting Proposal in the case of
Agere and the LSI Voting Proposal in the case of LSI. Unless the
board of directors of either party hereto shall effect an Agere
Board Recommendation Change in the case of Agere or an LSI Board
Recommendation Change in the case of LSI, in each case pursuant
to and in accordance with Section 6.2(b), each of
Agere and LSI shall use its reasonable best efforts to solicit
from its stockholders proxies in favor of the Agere Voting
Proposal in the case of Agere and the LSI Voting Proposal in the
case of LSI, and to secure the Requisite Agere Stockholder
Approval in the case of Agere and the Requisite LSI Stockholder
Approval in the case of LSI. Each of Agere and LSI shall use its
reasonable best efforts to ensure that all proxies solicited in
connection with its Merger Stockholder Meeting are solicited in
compliance with the DGCL, the rules of the NYSE, the Agere
Certificate of Incorporation and the Agere Bylaws in the case of
Agere, and the LSI Certificate of Incorporation and the LSI
Bylaws in the case of LSI, and all other applicable Legal
Requirements.
(b) Each of Agere and LSI shall use its reasonable best
efforts to call, give notice of, convene and hold their
respective Merger Stockholder Meetings on the same day and at
the same time. Notwithstanding anything to the contrary set
forth in this Agreement, each of Agere or LSI, after
consultation with the other party hereto, may (but shall not be
required to) adjourn or postpone its respective Merger
Stockholder Meeting if (and solely to the extent necessary to
ensure that) (i) any required supplement or amendment to
the Joint Proxy Statement/Prospectus is provided to its
respective stockholders, (ii) as of the time for which the
applicable Merger Stockholder Meeting is originally scheduled
(as set forth in the Joint Proxy Statement/Prospectus), there
are insufficient shares of Agere Common Stock in the case of
Agere, or LSI Common Stock in the case of LSI, represented
(either in person or by proxy) at the respective Merger
Stockholder meeting to constitute a quorum necessary to conduct
the business of the respective Merger Stockholder Meeting, or
(iii) the other party hereto has adjourned or postponed its
Merger Stockholder Meeting for any of the foregoing reasons.
(c) Following the Merger Stockholder Meetings and at or
prior to the Closing, each of Agere and LSI shall deliver to the
corporate secretary of the other party hereto a certificate
setting forth the voting results from the respective Merger
Stockholder Meeting.
(d) Agere shall submit the Agere Voting Proposal to the
Agere Stockholders at the Agere Stockholders Meeting for the
purpose of acting upon such proposal, and LSI shall submit the
LSI Voting Proposal to the LSI Stockholders at the LSI
Stockholders Meeting for the purpose of acting upon such
proposal, in each case whether or not (i) the Agere
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Board or the LSI Board, as the case may be, at any time
subsequent to the date of this Agreement shall effect an Agere
Board Recommendation Change in the case of Agere or an LSI Board
Recommendation Change in the case of LSI, or (ii) any
actual, potential or purported Acquisition Proposal or Superior
Proposal has been commenced, disclosed, announced or submitted
to the Agere Board in the case of Agere or the LSI Board in the
case of LSI.
6.4 Registration Statement; Joint Proxy
Statement/Prospectus;
Regulation M-A
Filings.
(a) As promptly as practicable after the execution and
delivery of this Agreement, LSI and Agere shall prepare, and LSI
shall file with the SEC, a Registration Statement on
Form S-4
in connection with the issuance of shares of LSI Common Stock in
the Merger (as may be amended or supplemented from time to time,
the Registration Statement). The Registration
Statement shall include (i) a prospectus for the issuance
of shares of LSI Common Stock in the Merger, (ii) a proxy
statement of LSI for use in connection with the solicitation of
proxies for the LSI Voting Proposal to be considered at the LSI
Stockholder Meeting and (iii) a proxy statement of Agere
for use in connection with the solicitation of proxies for the
Agere Voting Proposal to be considered at the Agere Stockholder
Meeting (as may be amended or supplemented from time to time,
the Joint Proxy Statement/Prospectus). Each
of LSI and Agere shall use its reasonable best efforts to have
the Registration Statement declared effective by the SEC under
the Securities Act as promptly as practicable after such filing
with the SEC. Without limiting the generality of the foregoing,
each of Agere and LSI shall, and shall cause its respective
representatives to, fully cooperate with the other party hereto
and its respective representatives in the preparation of the
Registration Statement and the Joint Proxy Statement/Prospectus,
and shall furnish the other party hereto with all information
concerning it and its Affiliates as the other party hereto may
deem reasonably necessary or advisable in connection with the
preparation of the Registration Statement and the Joint Proxy
Statement/Prospectus, and any amendment or supplement thereto,
and each of LSI and Agere shall provide the other party hereto
with a reasonable opportunity to review and comment thereon. As
promptly as practicable after the Registration Statement is
declared effective by the SEC, LSI and Agere shall cause the
Joint Proxy Statement/Prospectus to be mailed to their
respective stockholders.
(b) Except as otherwise set forth in this Agreement, no
amendment or supplement (including by incorporation by
reference) to the Joint Proxy Statement/Prospectus or the
Registration Statement shall be made without the approval of LSI
and Agere, which approval shall not be unreasonably withheld or
delayed; provided that LSI, in connection with an LSI
Board Recommendation Change, and Agere, in connection with an
Agere Board Recommendation Change, may amend or supplement the
proxy statement for LSI, the proxy statement for Agere or the
Registration Statement (including by incorporation by reference)
pursuant to a Qualifying Amendment to effect such change, and in
such event, the right of approval set forth in this
Section 6.4(b) shall apply only with respect to such
information relating to the other party or its business,
financial condition or results of operations, and shall be
subject to the right of each party to have its Board of
Directors deliberations and conclusions be accurately
described. A Qualifying Amendment means an
amendment or supplement to the proxy statement for LSI, the
proxy statement for Agere or the Registration Statement
(including by incorporation by reference) to the extent it
contains (i) an LSI Board Recommendation Change or an Agere
Board Recommendation Change (as the case may be), (ii) a
statement of the reasons of the Board of Directors of LSI or
Agere (as the case may be) for making such LSI Board
Recommendation Change or Agere Board Recommendation Change (as
the case may be) and (iii) additional information
reasonably related to the foregoing.
(c) The Registration Statement and the Proxy
Statement/Prospectus shall comply in all material respects as to
form and substance with the requirements of the Securities Act
and the Exchange Act. Without limiting the generality of the
foregoing, the information supplied or to be supplied by either
party hereto for inclusion or incorporation by reference in the
Registration Statement shall not, at the time the Registration
Statement is filed with the SEC or declared effective by the SEC
or at the Effective Time, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The information supplied or to be supplied
by either party hereto for inclusion or incorporation by
reference in the Joint Proxy Statement/Prospectus shall not, on
the date the Joint Proxy Statement/Prospectus (or any amendment
thereof or supplement thereto) is first mailed to stockholders,
at the time of each of the Merger Stockholder Meetings, or as of
the Effective Time, contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
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not misleading. The information supplied or to be supplied by or
on behalf of either party hereto for inclusion in any filing
pursuant to Rule 165 and Rule 425 under the Securities
Act or
Rule 14a-12
under the Exchange Act (each, a
Regulation M-A
Filing) shall not, at the time any such
Regulation M-A
Filing is filed with the SEC, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. Without limiting the generality of the
foregoing, prior to the Effective Time (i) Agere and LSI
shall notify each other as promptly as practicable upon becoming
aware of any event or circumstance which should be described in
an amendment of, or supplement to, the Registration Statement,
Joint Proxy Statement/Prospectus or any
Regulation M-A
Filing so that any such document would not include any
misstatement of material fact or omit to state any material fact
necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading, and as
promptly as practicable thereafter, an appropriate amendment or
supplement describing such information shall be promptly filed
with the SEC and, to the extent required by applicable Legal
Requirements or the SEC, disseminated to the stockholders of
Agere and/or
LSI. Agere and LSI shall each notify the other as promptly as
practicable after the receipt by it of any written or oral
comments of the SEC or its staff on, or of any written or oral
request by the SEC or its staff for amendments or supplements
to, the Registration Statement, the Joint Proxy
Statement/Prospectus or any
Regulation M-A
Filing, and shall promptly supply the other with copies of all
correspondence between it or any of its representatives and the
SEC or its staff with respect to any of the foregoing filings.
(d) Agere and LSI shall make any necessary filings with
respect to the Merger under the Securities Act and the Exchange
Act and the rules and regulations thereunder. In addition, LSI
shall use reasonable best efforts to take all actions required
under any applicable federal or state securities or Blue Sky
Laws in connection with the issuance of shares of LSI Common
Stock in the Merger.
6.5 Rights Plans.
(a) At all times during the period commencing with the
execution and delivery of this Agreement and continuing until
the earlier to occur of the termination of this Agreement
pursuant to Article VIII and the Effective Time,
Agere and the Agere Board shall not amend or modify, or take any
other action with regard to the Agere Rights Plan in any manner,
or take any other action so as to render the Agere Rights Plan
applicable to LSI, Merger Sub or any of their Affiliates. At all
times during the period commencing with the execution and
delivery of this Agreement and continuing until the earlier to
occur of the termination of this Agreement pursuant to
Article VIII and the Effective Time, Agere and the
Agere Board shall not take any action so as to (i) render
the Agere Rights Plan inapplicable to any person other than LSI,
Merger Sub or any of their Affiliates or any transaction other
than transactions contemplated by this Agreement,
(ii) permit any Person other than LSI, Merger Sub or any of
their Affiliates who would otherwise be an Acquiring Person
within the meaning of the Agere Rights Plan not to be an
Acquiring Person thereunder, (iii) provide that a
Distribution Date or a Shares Acquisition Date (as such
terms are defined in the Agere Rights Plan) or similar event
shall not occur by reason of the execution of any Contract other
than this Agreement or the consummation of any transaction other
than the transactions contemplated hereby or (iv) except as
specifically contemplated by this Agreement and the Agere Rights
Plan Amendment, otherwise affect the rights of holders of Rights
(as such term is defined in the Agere Rights Plan) under the
Agere Rights Plan.
(b) At all times during the period commencing with the
execution and delivery of this Agreement and continuing until
the earlier to occur of the termination of this Agreement
pursuant to Article VIII and the Effective Time, LSI
and the LSI Board shall not amend or modify, or take any other
action with regard to the LSI Rights Plan in any manner, or take
any other action so as to render the LSI Rights Plan applicable
to Agere or any of its Affiliates. At all times during the
period commencing with the execution and delivery of this
Agreement and continuing until the earlier to occur of the
termination of this Agreement pursuant to
Article VIII and the Effective Time, LSI and the LSI
Board shall not take any action so as to (i) render the LSI
Rights Plan inapplicable to any person other than Agere or any
of its Affiliates or any transaction other than transactions
contemplated by this Agreement, (ii) permit any Person
other than Agere or any of its Affiliates who would otherwise be
an Acquiring Person within the meaning of the LSI Rights Plan
not to be an Acquiring Person thereunder, (iii) provide
that a Distribution Date or a Shares Acquisition Date (as
such terms are defined in the LSI Rights Plan) or similar event
shall not occur by reason of the execution of any Contract other
than this Agreement or the consummation of any
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transaction other than the transactions contemplated hereby or
(iv) otherwise affect the rights of holders of Rights (as
such term is defined in the LSI Rights Plan) under the LSI
Rights Plan.
6.6 Efforts to Complete Merger; Regulatory
Filings.
(a) Upon the terms and subject to the conditions set forth
in this Agreement, each of LSI, Merger Sub and Agere shall use
its reasonable best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and
cooperate with the other party hereto in doing, all things
reasonably necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement, including using
reasonable best efforts to:
(i) cause the conditions to the Merger set forth in
Article VII to be satisfied or fulfilled;
(ii) obtain all necessary or appropriate consents, waivers
and approvals under any Contracts to which Agere or any of its
Subsidiaries is a party in connection with this Agreement and
the consummation of the transactions contemplated hereby so as
to maintain and preserve the benefits under such Contracts
following the consummation of the transactions contemplated by
this Agreement;
(iii) obtain all necessary actions or non-actions, waivers,
consents, approvals, Orders and authorizations from Governmental
Authorities, seek the expiration or termination of any
applicable waiting periods under applicable Legal Requirements,
and make all necessary registrations, declarations and filings
with Governmental Authorities;
(iv) seek to have vacated or otherwise lifted or removed
any Order that has been issued or granted which is in effect and
has the effect of making any of the transactions contemplated by
this Agreement illegal in any jurisdiction in which LSI or Agere
have substantial business or operations or which has the effect
of prohibiting, preventing or otherwise restraining the
consummation of the transactions contemplated by this Agreement
in any jurisdiction in which LSI or Agere have substantial
business or operations; and
(v) execute or deliver any additional instruments
reasonably necessary to consummate the transactions contemplated
by, and to fully carry out the purposes of, this Agreement.
(b) Without limiting the generality of the foregoing
provisions of Section 6.6(a) and to the extent
required by applicable Legal Requirements, as soon as
practicable following the execution and delivery of this
Agreement, each of LSI and Agere shall file with the FTC and the
Antitrust Division of the DOJ a Notification and Report Form
relating to this Agreement and the transactions contemplated
hereby as required by the HSR Act, and each of LSI
and/or Agere
shall file comparable pre-merger or post-merger notification
filings, forms and submissions with any foreign Governmental
Authority that may be required by the merger notification or
control laws and regulations (Antitrust Laws)
of any foreign jurisdiction in which LSI or Agere have
substantial business or operations or in which LSI and Agere
mutually agree to make such filing. Each of LSI and Agere shall
promptly (i) cooperate and coordinate with the other in the
making of such filings, (ii) supply the other with any
information that may be required in order to effectuate such
filings and (iii) supply any additional information that
reasonably may be required or requested by the FTC, the DOJ or
the competition or merger control authorities of any other
jurisdiction and that LSI and Agere reasonably deem necessary
and/or
appropriate. Each party hereto shall (i) promptly inform
the other party hereto of any communication from any
Governmental Authority regarding any of the transactions
contemplated by this Agreement; (ii) if practicable, permit
the other party the opportunity to review in advance all the
information relating to LSI and its Subsidiaries or Agere and
its Subsidiaries, as the case may be, that appears in any filing
made with, or written materials submitted to, any third party
and/or any
Governmental Authority in connection with the Merger and the
other transactions contemplated by this Agreement and
incorporate the other partys reasonable comments;
(iii) not participate in any substantive meeting or
discussion with any Governmental Authority in respect of any
filing, investigation, or inquiry concerning this Agreement or
the Merger unless it consults with the other party in advance,
and, to the extent permitted by such Governmental Authority,
gives the other party the opportunity to attend; and
(iv) furnish the other party with copies of all
correspondences, filings, and written communications between
them and their Subsidiaries and representatives, on the one
hand, and any Governmental Authority or its respective staff, on
the other hand, with respect to this Agreement and the Merger,
except that any materials concerning valuation of the
transaction or internal financial information may be redacted.
If any party hereto or Affiliate thereof receives a request for
additional information or documentary material from
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any such Governmental Authority with respect to the transactions
contemplated by this Agreement, then such party shall use
reasonable best efforts to make, or cause to be made, as soon as
reasonably practicable and after consultation with the other
party, an appropriate response in compliance with such request.
Notwithstanding the foregoing, each of LSI and Agere may, as
each deem advisable and necessary, reasonably designate any
competitively sensitive material provided to the other under
this Section 6.6 as counsel only and, in such
event, such material and the information contained therein shall
be given only to the outside legal counsel of the recipient and
shall not be disclosed by such counsel to non-legal directors,
officers, employees or other advisors or representatives of the
recipient unless express permission is obtained in advance from
the source of the materials or its legal counsel.
(c) Notwithstanding anything to the contrary set forth in
this Agreement, nothing in this Agreement shall be deemed to
require LSI or Agere or any Subsidiary thereof to agree to any
divestiture by itself or any of its Affiliates of shares of
capital stock or of any business, assets or property, or the
imposition of any limitation on the ability of any of them to
conduct their business or to own or exercise control of such
assets, properties and stock, in each case in a manner that
would be reasonably expected to have a material adverse effect
on business, operations, financial condition or results of
operations of the combined business of LSI and Agere after
giving effect to the consummation of the transactions
contemplated hereby.
6.7 Access; Notice and Consultation;
Confidentiality.
(a) At all times during the period commencing with the
execution and delivery of this Agreement and continuing until
the earlier to occur of the termination of this Agreement
pursuant to Article VIII and the Effective Time,
upon reasonable notice and subject to applicable Legal
Requirement relating to the exchange of information, each of LSI
and Agere shall, and shall cause its Subsidiaries to, afford to
the officers, employees, accountants, counsel and other
representatives of the other party hereto, reasonable access,
during normal business hours, to all of its personnel,
properties, facilities, contracts, books, records and other
information concerning its business, properties and personnel as
the other may reasonably request.
(b) At all times during the period commencing with the
execution and delivery of this Agreement and continuing until
the earlier to occur of the termination of this Agreement
pursuant to Article VIII and the Effective Time,
each of LSI and Agere shall, and shall cause its Subsidiaries
to, make available to the other party hereto a copy of each
report, schedule, proxy or information statement, registration
statement and other document to be filed by it during such
period pursuant to the requirements of federal securities laws
or federal or state laws a reasonable period of time prior to
the filing of such reports, schedules, proxy or information
statements, registration statements and other documents.
(c) At all times during the period commencing with the
execution and delivery of this Agreement and continuing until
the earlier to occur of the termination of this Agreement
pursuant to Article VIII and the Effective Time,
each of LSI and Agere shall give prompt notice to the other
party hereto upon becoming aware that any representation or
warranty made by it in this Agreement has become untrue or
inaccurate in any material respect, or of any failure of such
party to comply with or satisfy in any material respect any
covenant, condition or agreement to be complied with or
satisfied by it under this Agreement.
(d) At all times during the period commencing with the
execution and delivery of this Agreement and continuing until
the earlier to occur of the termination of this Agreement
pursuant to Article VIII and the Effective Time,
each of LSI and Agere shall give prompt notice to the other
party hereto of (i) any notice or other communication
received by it from any Governmental Authority in connection
with the transactions contemplated by this Agreement,
(ii) any notice or other communication received by it from
any Person, subsequent to the date of this Agreement and prior
to the Effective Time, alleging any material breach of or
material default under any Agere Material Contract or LSI
Material Contract, as the case may be, to which such party or
any of its Subsidiaries is a party or (iii) any notice or
other communication received by such party or any of its
Subsidiaries from any Person, subsequent to the date of this
Agreement and prior to the Effective Time, alleging that the
consent of such Person is or may be required in connection with
the transactions contemplated by this Agreement.
(e) At all times during the period commencing with the
execution and delivery of this Agreement and continuing until
the earlier to occur of the termination of this Agreement
pursuant to Article VIII and the Effective
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Time each of LSI and Agere shall promptly advise the other party
hereto orally and in writing of any litigation commenced after
the date hereof against such party or any of its directors by
any of its current or former stockholders (on their own behalf
or on behalf of the company) relating to this Agreement or the
transactions contemplated hereby and shall keep the other party
hereto reasonably informed regarding any such litigation. Each
of LSI and Agere shall give the other party hereto the
opportunity to consult with such party regarding the defense or
settlement of any such stockholder litigation and shall consider
the other partys views with respect to such stockholder
litigation.
(f) At all times during the period commencing with the
execution and delivery of this Agreement and continuing until
the earlier to occur of the termination of this Agreement
pursuant to Article VIII and the Effective Time,
each of LSI and Agere shall cause one or more of its designated
representatives to confer on a regular and frequent basis with
representatives of the other party hereto and report the general
status of the ongoing operations of such party and its
Subsidiaries. Each of LSI and Agere shall promptly notify the
other party hereto of any material change in the normal course
of business or in the operation of the properties of such party
or any of its Subsidiaries and of any governmental complaints,
investigations or hearings (or communications indicating that
the same may be contemplated), or the institution or the threat
of significant litigation involving such party or any of its
Subsidiaries, and will keep the other party hereto fully
informed of such events.
(g) Notwithstanding anything to the contrary set forth
herein, neither LSI nor Agere nor any of their respective
Subsidiaries shall be required to provide access to, or to
disclose information, where such access or disclosure would
jeopardize the attorney-client privilege of such party or its
Subsidiaries or contravene any Legal Requirement, fiduciary duty
or Contract entered into prior to the date of this Agreement.
The parties shall use their reasonable best efforts to make
appropriate substitute arrangements to permit reasonable
disclosure under circumstances in which the restrictions of the
preceding sentence apply. Notwithstanding anything to the
contrary set forth herein, no information obtained pursuant to
the access granted or notification provided pursuant to this
Section 6.7 shall be deemed to (i) amend or
otherwise modify in any respect any representation or warranty
of the party providing such access or notice, (ii) impair
or otherwise prejudice in any manner rights of the party
receiving such access or notice to rely upon the conditions to
the obligations of such party to consummate the transactions
contemplated by this Agreement, or (iii) impair or
otherwise limit the remedies available to the party receiving
such access or notice.
(h) All information acquired pursuant to the access granted
or notice provided pursuant to this Section 6.7
shall be subject to the provisions of the Mutual Nondisclosure
Agreement, dated August 21, 2006, between LSI and Agere
(the Confidentiality Agreement), which shall
continue in full force and effect from and after the execution
and delivery of this Agreement in accordance with its terms.
6.8 Public
Announcements. Each of LSI and Agere shall
consult with the other party hereto before issuing any press
release or making any public announcement or statement with
respect to this Agreement or the transactions contemplated
hereby, and shall not issue any such press release or make any
such public announcement or statement without the prior written
consent of the other party hereto, which consent shall not be
unreasonably withheld, delayed or conditioned; provided,
however, that a party may, without the prior consent of the
other party hereto, issue any such press release or make any
such public announcement or statement as may be required by
Legal Requirement or the rules and regulations of the NYSE if it
first notifies and consults with the other party hereto prior to
issuing any such press release or making any such public
announcement or statement; and provided further, however,
that no such prior notice or consultation shall be required in
connection with any disclosure or other action expressly
permitted pursuant to Section 6.2(b).
6.9 Agere ESPP. Prior to the
Effective Time, Agere shall take all necessary and appropriate
actions so that all outstanding purchase rights under the Agere
ESPP shall automatically be exercised, in accordance with the
terms of the Agere ESPP, immediately prior to the Effective
Time. Prior to the Effective Time, Agere shall take all
necessary and appropriate actions so that the Agere ESPP shall
terminate with such purchase, and no further purchase rights
shall be granted under the Agere ESPP.
6.10 Agere Stock
Awards. Prior to the Effective Time, Agere
shall take all necessary and appropriate actions to allow for
the treatment of Agere Stock Awards in connection with the
Merger as provided in Section 2.7, including
(i) obtaining any consents from, and delivering any notices
to, holders of Agere Stock Awards, (ii) amending the terms
of its equity incentive plans or arrangements, to give effect to
the provisions of
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Section 2.7, and (iii) taking all actions
necessary to ensure that LSI is entitled to exercise any
repurchase option or other right with respect to the Common
Stock Consideration payable in exchange for Agere Restricted
Stock.
6.11 Registration Statements for Assumed
Options and Other Awards. As soon a
practicable following the Effective Time, but in no event later
than five (5) days following the Effective Time, LSI shall
file a registration statement under the Securities Act on
Form S-8,
Form S-3
or another appropriate form (and use its reasonable best efforts
to maintain the effectiveness thereof and maintain the current
status of the prospectuses contained therein) relating to shares
of LSI Common Stock issuable with respect to the Assumed
Options, Assumed Units and the Common Stock Consideration
payable in exchange for Agere Restricted Stock, and shall use
its reasonable best efforts to cause such registration statement
to remain in effect for so long as such Assumed Options or
Assumed Units shall remain outstanding.
6.12 Agere 401(k)
Plans. Prior to Closing, LSI and Agere shall
cooperate in good faith with respect to the appropriate
treatment following the Closing of any plans of Agere and its
ERISA Affiliates intended to include Code Section 401(k)
arrangements (the Agere 401(k) Plans) in
order to effectuate orderly transition in respect of such plans
and minimize any adverse effect on participating employees with
respect to any such transition.
(b) If, as a result of the determination arrived at by LSI
in accordance with Section 6.12(a), LSI provides
written notice to Agere requesting termination of one or more
Agere 401(k) Plans prior to Closing, then, effective as of the
day immediately preceding the Closing Date, the Agere Board
shall adopt a resolution effective immediately prior to Closing,
which resolution shall terminate any such Agere 401(k) Plan.
Agere shall provide LSI with evidence that such Atlas 401(k)
Plan(s) have been terminated (effective as of the day
immediately preceding the Closing Date) pursuant to resolutions
of the Agere Board (any Agere 401(k) Plans so terminated,
Agere Terminating Plans). As soon as
administratively practicable following the Effective Time, all
participants in the Agere Terminating Plans shall become
participants in the comparable 401(k) arrangements of LSI and
LSI shall establish or designate a comparable 401(k) Plan
arrangement of LSI to receive any rollover distributions from
such Agere Terminating Plans, including rollover of any
outstanding loans held by participants of such plans.
6.13 Agere Employee Benefits.
(a) Except as may be required by collective bargaining
agreements or agreements with labor unions, trade unions, labor
organizations or works councils or Legal Requirements for a
period of at least two (2) years following the Effective
Time, but in no event later than such time as an Agere Employee
(as defined below) ceases to be employed by or provide services
to Agere or its Subsidiaries or the Surviving Corporation, LSI
shall, or shall cause the Surviving Corporation to, provide each
employee of Agere or its Subsidiaries as of the Effective Time
(the Agere Employees) compensation (in the
aggregate), and health, welfare and pension benefits (but not
including equity awards) that are substantially equivalent, in
the aggregate, to those provided to such Agere Employees
immediately prior to the date hereof (that, with respect to
benefits, were paid pursuant to written policies or programs).
Nothing herein requires or obligates LSI to offer or contribute
LSI securities or maintain a LSI stock fund under any 401(k) or
pension plan arrangement or retain any employees for any period
of time beyond that required by applicable employment, labor or
works council agreements or by applicable Legal Requirements.
(b) From and after the Effective Time, and to the extent
permitted by applicable Legal Requirements, LSI shall, or shall
cause the Surviving Corporation to, recognize the prior service
with Agere or its Subsidiaries of each Agere Employee in
connection with all employee benefit plans, programs or policies
(including vacation and severance, but excluding the sabbatical
program) of LSI or its Affiliates in which Agere Employees are
eligible to participate following the Effective Time for
purposes of eligibility and vesting and determination of level
of benefits (but not for purposes of benefit accruals or benefit
amounts under any defined benefit pension plan or to the extent
that such recognition would result in duplication of benefits).
From and after the Effective Time, LSI shall, or shall cause the
Surviving Corporation to, (i) cause any pre-existing
conditions or limitations and eligibility waiting periods (to
the extent that such waiting periods would be inapplicable,
taking into account service with Agere) under any group health
plans of LSI or its affiliates to be waived with respect to
Agere Employees and their eligible dependents, and
(ii) provide each Agere Employee with credit for any
deductibles paid under any Agere Employee Plan that provides
medical, dental or vision benefits in the plan year in effect as
of the Closing Date in satisfying any applicable deductible or
out of pocket requirements under any medical, dental or vision
plans of LSI or the
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Surviving Corporation that such employees are eligible to
participate in after the Effective Time to the same extent that
such expenses were recognized under the comparable Agere
Employee Plan.
(c) The provisions of this Section 6.13(a) and
(b) are not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder, and nothing
herein shall be deemed to amend any Employee Benefit Plan to
reflect the terms of this Section 6.13(a) and (b).
(d) Without limiting the generality of the foregoing, as of
the Effective Time, LSI shall, or shall cause the Surviving
Corporation to, honor in accordance with their terms all
employment, change in control, severance and other compensation
and benefits agreements and arrangements existing prior to the
execution of this Agreement which are between Agere or any of
its Subsidiaries and any director, officer or employee thereof
and set forth in Section 6.13 of the Agere
Disclosure Letter (each an Agere Executive
Agreement), and to refrain from amending or
terminating any such agreement or arrangement for a period of at
least two (2) years following the Effective Date, except
such amendments as may be necessary to avoid the imposition of a
tax under Section 409A of the Code; provided that, nothing
herein shall prevent LSI from amending any such agreement or
plan thereafter in accordance with its terms. LSI hereby agrees
that the occurrence of the Closing shall constitute a
Change in Control for purposes of any Agere
Executive Agreement and all Agere Employee Plans and related
trusts set forth in Section 6.13 of the Agere
Disclosure Letter.
6.14 Directors and Officers
Indemnification and Insurance.
(a) After the Effective Time, LSI shall, and shall cause
the Surviving Corporation to, indemnify and hold harmless the
individuals who on or prior to the Effective Time were officers,
directors and employees of Agere or its Subsidiaries or were
serving at the request of Agere as an officer, director or
employee of any other corporation, partnership or joint venture,
trust, employee benefit plan or other enterprise with respect to
all acts or omission by them in their capacities as such or
taken at the request of Agere or any of its Subsidiaries at any
time prior to the Effective Time to the fullest extent permitted
by law (including with respect to advancement of expenses).
(b) For a period of six (6) years after the Effective
Time, LSI shall, and shall cause the Surviving Corporation and
its Subsidiaries to maintain in effect, honor and fulfill in all
respects the obligations of Agere and its Subsidiaries under any
and all indemnification agreements in effect immediately prior
to the Effective Time between Agere or any of its Subsidiaries
and any of its current or former directors and officers and any
person who becomes a director or officer of Agere or any of its
Subsidiaries prior to the Effective Time (the
Indemnified Parties) and shall not amend,
terminate or otherwise modify any such agreements. In addition,
for a period of six (6) years following the Effective Time,
LSI shall, and shall cause the Surviving Corporation and its
Subsidiaries to, cause the certificate of incorporation and
bylaws (and other similar organizational documents) of the
Surviving Corporation and its Subsidiaries to contain provisions
with respect to indemnification and exculpation that are at
least as favorable as the indemnification and exculpation
provisions contained in the certificate of incorporation and
bylaws (or other similar organizational documents) of Agere and
its Subsidiaries immediately prior to the Effective Time, and
during such six-year period, such provisions shall not be
amended, repealed or otherwise modified in any respect, except
as required by Legal Requirement.
(c) For a period of six (6) years following the
Effective Time, LSI and the Surviving Corporation shall cause to
be maintained in effect the existing policy of Ageres
directors and officers liability insurance (the
D&O Policy) covering claims arising from
facts or events that occurred at or prior to the Effective Time
(including for acts or omissions occurring in connection with
this Agreement and the consummation of the transactions
contemplated hereby to the extent that such acts or omissions
are covered by the D&O Policy) and covering each Indemnified
Party who is covered as of the Effective Time by the D&O
Policy on terms with respect to coverage and amounts that are no
less favorable than those terms in effect on the date hereof;
provided, however, that in no event shall LSI or the
Surviving Corporation be required to expend in any one year an
amount in excess of 225% of the current annual premium paid by
Agere (which annual premium is set forth on
Section 6.14(c) of the Agere Disclosure Letter) for
such insurance (such 225% amount, the Maximum Annual
Premium); and provided further, however, that
if the annual premiums of such insurance coverage exceed such
amount, LSI and the Surviving Corporation shall be obligated to
obtain a policy with the greatest coverage available for a cost
not exceeding the Maximum Annual Premium. Prior to the Effective
Time, notwithstanding anything to the contrary in this
Agreement, in lieu of its obligations under the first sentence
of this Section 6.14(c), LSI may purchase a six-year
tail prepaid policy on
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the D&O Policy on terms and conditions no less advantageous
than the D&O Policy, and in the event that LSI shall
purchase such a tail policy prior to the Effective
Time, LSI and the Surviving Corporation shall maintain such
tail policy in full force and effect and continue to
honor their respective obligations thereunder, in lieu of all
other obligations of LSI and the Surviving Corporation under the
first sentence of this Section 6.14(c) for so long
as such tail policy shall be maintained in full
force and effect.
(d) The obligations under this Section 6.14
shall not be terminated, amended or otherwise modified in such a
manner as to adversely affect any Indemnified Party (or any
other person who is a beneficiary under the D&O Policy or
the tail policy referred to in
Section 6.14(c) (and their heirs and
representatives)) without the prior written consent of such
affected Indemnified Party or other person who is a beneficiary
under the D&O Policy or the tail policy referred
to in Section 6.14(c) (and their heirs and
representatives). Each of the Indemnified Parties or other
persons who are beneficiaries under the D&O Policy or the
tail policy referred to in
Section 6.14(c) (and their heirs and
representatives) are intended to be third party beneficiaries of
this Section 6.14, with full rights of enforcement
as if a party thereto. The rights of the Indemnified Parties
(and other persons who are beneficiaries under the D&O
Policy or the tail policy referred to in
Section 6.14(c) (and their heirs and
representatives)) under this Section 6.14 shall be
in addition to, and not in substitution for, any other rights
that such persons may have under the certificate or articles of
incorporation, bylaws or other equivalent organizational
documents, any and all indemnification agreements of or entered
into by Agere or any of its Subsidiaries, or applicable Legal
Requirement (whether at law or in equity). LSI shall pay all
reasonable expenses that may be incurred by the Indemnified
Parties in enforcing the indemnity and other obligations
provided in this Section 6.14, provided that such
Indemnified Party is successful in enforcing any such claim.
(e) In the event that LSI, the Surviving Corporation or any
of their Subsidiaries (or any of their respective successors or
assigns) shall consolidate or merge with any other person and
shall not be the continuing or surviving corporation or entity
in such consolidation or merger, or transfers at least fifty
percent (50%) of its properties and assets to any other person,
then in each case proper provision shall be made so that the
continuing or surviving corporation or entity (or its successors
or assigns, if applicable), or transferee of such assets, as the
case may be, shall assume the obligations set forth in this
Section 6.14.
6.15 Listing of LSI
Shares. LSI shall use its reasonable best
efforts to have authorized for listing on the NYSE prior to the
Effective Time, upon official notice of issuance, the shares of
LSI Common Stock issuable in the Merger pursuant to this
Agreement, the shares of LSI Common Stock issuable upon the
exercise of all Assumed Options and the shares of LSI Common
Stock issuable in respect of all Assumed Units.
6.16 Takeover Statutes. If
any Takeover Statute is or may become applicable to the Merger
or any of the other transactions contemplated by this Agreement,
Agere and the Agere Board shall promptly grant such approvals
and take such lawful actions as are necessary so that such
transactions may be consummated as promptly as practicable on
the terms contemplated by this Agreement or the transactions
contemplated hereby, as the case may be, and otherwise take such
lawful actions to eliminate or minimize the effects of such
statute, and any regulations promulgated thereunder, on such
transactions.
6.17 Section 16 Matters.
(a) The LSI Board, or a committee thereof consisting of
non-employee directors (as such term is defined for purposes of
Rule 16b-3(d)
under the Exchange Act), shall adopt a resolution in advance of
the Effective Time providing that the receipt by Agere Insiders
of LSI Common Stock in exchange for shares of Agere Common
Stock, and of options to purchase LSI Common Stock upon
assumption and conversion of the Agere Stock Awards, in each
case pursuant to the transactions contemplated hereby and to the
extent such securities are listed in the Section 16
Information (as defined below), is intended to be exempt
pursuant to
Rule 16b-3
under the Exchange Act. In addition, the Agere Board, or a
committee thereof consisting of non-employee directors (as such
term is defined for purposes of
Rule 16b-3(d)
under the Exchange Act), shall adopt a resolution in advance of
the Effective Time providing that the disposition by Agere
Insiders of Agere Common Stock in exchange for shares of LSI
Common Stock, and the disposition of their Agere Stock Awards
which will be deemed to occur upon the assumption of those
options and their resulting conversion into options to purchase
LSI Common Stock, in each case pursuant to the transactions
contemplated hereby and to the extent such securities are listed
in the Section 16 Information, are also intended to be
exempt pursuant to
Rule 16b-3
under the Exchange Act.
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(b) For purposes of this Agreement,
Section 16 Information means information
regarding Agere Insiders and (i) the number of shares of
Agere Common Stock or other Agere equity securities deemed to be
beneficially owned by each such Agere Insider and expected to be
exchanged for LSI Common Stock and (ii) the number of
shares of Agere Common Stock, together with the applicable
exercise price per share, subject to each Agere Stock Award held
by Agere Insider which is to be assumed and converted into
options to purchase LSI Common Stock, in each case, in
connection with the Merger, which shall be provided by Agere to
LSI within ten (10) Business Days after the date of this
Agreement.
(c) For purposes of this Agreement, Agere
Insiders means those officers and directors of Agere
who are subject to the reporting requirements of
Section 16(a) of the Exchange Act as listed in the
Section 16 Information.
6.18 Affiliate Agreements; Restrictive
Legends. Agere shall use its reasonable best
efforts to cause each person who is at the time of the Agere
Stockholder Meeting an affiliate for purposes of
Rule 145 under the Securities Act to deliver to LSI a
written agreement substantially in the form attached as
Exhibit A hereto (each, an Affiliate
Agreement) on or prior to the Effective Time. LSI
shall be entitled to place appropriate legends on the
certificates evidencing any shares of LSI Common Stock to be
received by Rule 145 affiliates of Agere in the
Merger reflecting the restrictions set forth in Rule 145
promulgated under the Securities Act and to issue appropriate
stop transfer instructions to the transfer agent for LSI Common
Stock, provided that such legends or stop transfer instructions
shall be removed upon the request of any holder of shares of LSI
Common Stock issued in the Merger if such holders shares
are no longer subject to Rule 145.
6.19 Tax Matters.
(a) None of LSI, Merger Sub or Agere shall, and they shall
not permit any of their respective Subsidiaries to, take any
action prior to or following the Effective Time that would
reasonably be expected to cause the Merger to fail to qualify as
a reorganization within the meaning of Section 368(a) of
the Code.
(b) Each of LSI and Agere shall use its reasonable best
efforts to obtain the Tax opinions described in
Section 7.1(g) (collectively, the Tax
Opinions). Officers of LSI, Merger Sub and Agere shall
execute and deliver to Wilson Sonsini Goodrich &
Rosati, Professional Corporation, counsel to LSI, and Skadden
Arps, Slate, Meagher & Flom, LLP, counsel to Agere,
certificates containing customary representations at such time
or times as may be reasonably requested by such law firms,
including the effective date of the Registration and the
Effective Time, in connection with their respective deliveries
of opinions with respect to the Tax treatment of the Merger.
6.20 FIRPTA Certificate. On
or prior to the Closing Date, Agere shall deliver to LSI a
properly executed statement in a form reasonably acceptable to
LSI for purposes of satisfying LSIs obligations under
Treasury
Regulation Section 1.1445-2(c)(3).
6.21 Obligations of Merger
Sub. LSI shall take all action necessary to
cause Merger Sub and the Surviving Corporation to perform their
respective obligations under this Agreement and to consummate
the transactions contemplated hereby upon the terms and subject
to the conditions set forth in this Agreement.
6.22 LSI Name. At the
Effective Time, LSI shall retain the name LSI Logic
Corporation.
6.23 LSI Facilities. At the
Effective Time, the headquarters and principal executive offices
of LSI and Agere as a combined company shall remain in Milpitas,
California. LSI shall, and shall cause the Surviving Corporation
to, maintain Ageres Allentown, Pennsylvania facilities as
a key location for the combined companys development
activities. The provisions of this Section 6.24 are
not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
6.24 LSI Board. The LSI
Board shall take all action necessary such that, effective as of
the Effective Time, the LSI Board shall consist of nine
(9) directors, six (6) of whom shall be designated by
the LSI Board and three (3) of whom shall be designated by
the Agere Board.
6.25 LSI Chairman and
CEO. The LSI Board shall take all action
necessary such that, effective as of the Effective Time, the
Chairman of the LSI Board shall be James H. Keyes, and the Chief
Executive Officer of LSI shall be Abhijit Y. Talwalkar.
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ARTICLE VII
CONDITIONS
TO THE MERGER
7.1 Conditions to Obligation of Each Party to
Effect the Merger. The respective obligations
of LSI, Merger Sub and Agere to consummate the transactions
contemplated by this Agreement shall be subject to the
satisfaction or waiver (where permissible under applicable Legal
Requirements), at or prior to the Effective Time, of each of the
following conditions:
(a) Effectiveness of the Registration
Statement. The Registration Statement shall
have been declared effective by the SEC under the Securities
Act. No stop order suspending the effectiveness of the
Registration Statement shall have been issued by the SEC and no
proceedings for that purpose and no similar proceeding in
respect of the Joint Proxy Statement/Prospectus shall have been
initiated or threatened in writing by the SEC.
(b) Requisite Stockholder
Approval. The Requisite Agere Stockholder
Approval and the Requisite LSI Stockholder Approval shall have
been obtained.
(c) Antitrust
Approvals. (i) All waiting periods (and
all extensions thereof) applicable to the consummation of the
Merger under the HSR Act shall have terminated or expired,
(ii) the European Commission shall have issued a decision
under Article 6(1)(b) or 8(1) or 8(2) of the EC Merger
Regulation (or shall have been deemed to have done so under
Article 10(6) thereof) declaring the transactions
contemplated hereby compatible with the EC common market, and
(iii) all antitrust and competition approvals, consents
(other than those specified in (i) and (ii)) have been
received and all antitrust or competition notices or filings
have been made other than those notices, approvals and consents,
the failure of which to obtain or make would not result in a
material adverse effect on LSI, Agere and their Subsidiaries,
taken as a whole, following the Effective Time.
(d) No Prohibitive Legal
Requirements. No Governmental Authority of
competent jurisdiction shall have enacted, issued, promulgated,
entered, enforced or deemed applicable to the Merger any Legal
Requirement that is in effect and has the effect of making the
Merger illegal in any jurisdiction in which LSI or Agere have
substantial business or operations or which has the effect of
prohibiting, preventing or otherwise restraining the
consummation of the Merger in any jurisdiction in which LSI or
Agere have substantial business or operations.
(e) No Prohibitive Orders. No
Governmental Authority of competent jurisdiction shall have
issued or granted any Order (whether temporary, preliminary or
permanent) that has the effect of making the Merger illegal in
any jurisdiction in which LSI or Agere have substantial business
or operations or which has the effect of prohibiting, preventing
or otherwise restraining the consummation of the Merger.
(f) NYSE Listing. The shares of
LSI Common Stock issuable in the Merger, the shares of LSI
Common Stock issuable upon the exercise of all Assumed Options
and the shares of LSI Common Stock issuable in respect of all
Assumed Units, shall have been authorized for listing on the
NYSE upon official notice of issuance.
(g) Tax Opinions. LSI shall have
received an opinion of Wilson Sonsini Goodrich &
Rosati, Professional Corporation, and Agere shall have received
an opinion of Skadden, Arps, Slate, Meagher & Flom LLP,
each dated as of the Effective Time and each to the effect that
the Merger will qualify as a reorganization within the meaning
of Section 368(a) of the Code. The issuance of such
opinions shall be conditioned upon the receipt by such counsel
of customary representation letters from each of LSI, Merger Sub
and Agere, in each case, in form and substance reasonably
satisfactory to such counsel. Each such representation letter
shall be dated on or before the date of such opinion and shall
not have been withdrawn or modified in any material respect.
7.2 Additional Conditions to Obligations of LSI
and Merger Sub. The obligations of LSI and
Merger Sub to consummate the transactions contemplated by this
Agreement are also subject to the satisfaction or waiver, on or
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prior to the Effective Time, of each the following additional
conditions (each of which conditions may be waived solely by LSI
and Merger Sub in their sole discretion):
(a) Representations and
Warranties. The representations and
warranties of Agere set forth in this Agreement (i) shall
have been true and correct as of the date of this Agreement and
(ii) shall be true and correct on and as of the Closing
Date with the same force and effect as if made on and as of such
date, except, in the case of the foregoing clauses (i) and
(ii), (A) for any failure to be so true and correct which
has not had and would not reasonably be expected to have,
individually or in the aggregate, an Agere Material Adverse
Effect, (B) for changes contemplated by this Agreement and
(C) for those representations and warranties which address
matters only as of a particular date (which representations
shall have been true and correct as of such particular date,
except for any failure to be so true and correct which has not
had and would not reasonably be expected to have, individually
or in the aggregate, an Agere Material Adverse Effect);
provided, however, that for purposes of determining the
accuracy of the representations and warranties of Agere set
forth in the Agreement for purposes of this
Section 7.2(a), (1) all Agere Material
Adverse Effect and materiality qualifications and other
qualifications based on the word material or similar
phrases contained in such representations and warranties shall
be disregarded (it being understood and hereby agreed that
(x) the phrase similar phrases as used in this
proviso shall not be deemed to include any dollar thresholds
contained in any such representations and warranties,
(y) the representation and warranty set forth in
clause (i) of Section 3.10 shall not be
disregarded pursuant to the terms of this proviso, (2) any
update of or modification to the Agere Disclosure Letter made or
purported to have been made after the date hereof shall be
disregarded; and LSI shall have received a certificate signed
for and on behalf of Agere by an authorized executive officer of
Agere to the foregoing effect, and (3) the representations
and warranties set forth in Section 3.4(a) shall be true in
all material respects as of the date specified in such
representation and warranty.
(b) Agreements and
Covenants. Agere shall have performed or
complied in all material respects with all agreements and
covenants required by this Agreement to be performed or complied
with by it at or prior to the Closing Date; and LSI and Merger
Sub shall have received a certificate signed by the chief
executive officer and the chief financial officer of Agere to
such effect.
(c) No Agere Material Adverse
Effect. Since the date hereof, there shall
not have occurred any Agere Material Adverse Effect that is
continuing.
7.3 Additional Conditions to Obligation of
Agere. The obligation of Agere to consummate
the transactions contemplated by this Agreement is also subject
to the satisfaction or waiver, at or prior to the Closing Date,
of each of the following additional conditions (each of which
conditions may be waived solely by Agere in its sole discretion):
(a) Representations and
Warranties. The representations and
warranties of LSI and Merger Sub set forth in this Agreement
(i) shall have been true and correct as of the date of this
Agreement and (ii) shall be true and correct on and as of
the Closing Date with the same force and effect as if made on
and as of such date, except, in the case of the foregoing
clauses (i) and (ii), (A) for any failure to be so
true and correct which has not had and would not reasonably be
expected to have, individually or in the aggregate, an LSI
Material Adverse Effect, (B) for changes contemplated by
this Agreement and (C) for those representations and
warranties which address matters only as of a particular date
(which representations shall have been true and correct as of
such particular date, except for any failure to be so true and
correct which has not had and would not reasonably be expected
to have, individually or in the aggregate, an LSI Material
Adverse Effect); provided, however, that for purposes of
determining the accuracy of the representations and warranties
of Agere set forth in the Agreement for purposes of this
Section 7.3(a), (1) all LSI Material
Adverse Effect and materiality qualifications and other
qualifications based on the word material or similar
phrases contained in such representations and warranties shall
be disregarded (it being understood and hereby agreed that
(x) the phrase similar phrases as used in this
proviso shall not be deemed to include any dollar thresholds
contained in any such representations and warranties,
(y) the representation and warranty set forth in
clause (i) of Section 4.10 shall not be
disregarded pursuant to the terms of this proviso, (2) any
update of or modification to the LSI Disclosure Letter made or
purported to have been made after the date hereof shall be
disregarded; and Agere shall have received a certificate signed
for and on behalf of LSI and Merger Sub by an authorized
executive
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officer of LSI and Merger Sub to the foregoing effect, and
(3) the representations and warranties set forth in
Section 4.4(a) shall be true in all material respects as of
the date specified in such representation and warranty.
(b) Agreements and Covenants. LSI
and Merger Sub shall have performed or complied in all material
respects with all agreements and covenants required by this
Agreement to be performed or complied with by them at or prior
to the Closing Date; and Agere shall have received a certificate
signed by the chief executive officer and the chief financial
officer of LSI to such effect.
(c) No LSI Material Adverse
Effect. Since the date hereof, there shall
not have occurred any LSI Material Adverse Effect that is
continuing.
ARTICLE VIII
TERMINATION
8.1 Termination. Notwithstanding
the prior receipt of the Requisite Agere Stockholder Approval
and/or the
Requisite LSI Stockholder Approval, this Agreement may be
terminated and the Merger may be abandoned at any time prior to
the Effective Time (it being agreed that the party hereto
terminating this Agreement pursuant to this
Section 8.1 shall give prompt written notice of such
termination to the other party hereto):
(a) by mutual written consent duly authorized by the Agere
Board and the LSI Board;
(b) by either LSI or Agere if any Governmental Authority of
competent jurisdiction shall have (i) enacted, issued,
promulgated, entered, enforced or deemed applicable to the
Merger any Legal Requirement that is in effect and has the
effect of making the consummation of the Merger illegal in any
jurisdiction in which LSI or Agere have substantial business or
operations, or which has the effect of prohibiting, preventing
or otherwise restraining the consummation of the Merger in any
jurisdiction in which LSI or Agere have substantial business or
operations or (ii) issued or granted any Order that is in
effect and has the effect of making the Merger illegal in any
jurisdiction in which LSI or Agere have substantial business or
operations or which has the effect of prohibiting, preventing or
otherwise restraining the Merger in any jurisdiction in which
LSI or Agere have substantial business or operations, and such
Order has become final and non-appealable, provided that the
party seeking to terminate this Agreement pursuant to this
Section 8.1(b) shall have complied with its
obligations under Section 6.6 to have any such Order
vacated or lifted or removed;
(c) by either LSI or Agere if the Merger shall have not
been consummated by May 15, 2007 (the Initial
Termination Date); provided, however, that in
the event a condition to the Merger set forth in
Section 7.1(c) shall not have been satisfied on or
prior to the Initial Termination Date and all of the other
conditions to the consummation of the transactions contemplated
hereby set forth in Article VII shall have been
satisfied on or prior to the Initial Termination Date (other
than those conditions that by their terms contemplate
satisfaction at the Closing, provided that such conditions are
then capable of being satisfied at such time), either LSI or
Agere may elect to extend the Initial Termination Date, by
written notice to the other party hereto prior to or on the
Initial Termination Date, until August 31, 2007 (the
Extended Termination Date); and provided
further, however, that the right to terminate this Agreement
pursuant to this Section 8.1(c) shall not be
available to any party hereto whose action or failure to fulfill
any covenant or obligation under this Agreement has been the
proximate cause of or resulted in any of the conditions to the
consummation of the transactions contemplated hereby set forth
in Article VII having failed to be satisfied or
fulfilled on or prior to the Initial Termination Date or the
Extended Termination Date, as applicable, and such action or
failure to fulfill any covenant or obligation constitutes a
material breach of this Agreement;
(d) by either LSI or Agere if (i) the Requisite LSI
Stockholder Approval shall not have been obtained at the LSI
Stockholder Meeting (or any adjournment or postponement thereof)
at which a vote was taken on the LSI Voting Proposal, or
(ii) if the Requisite Agere Stockholder Approval shall not
have been obtained at the Agere Stockholder Meeting (or any
adjournment or postponement thereof) at which a vote was taken
on the Agere Voting Proposal;
(e) by either LSI or Agere (provided it is not then in
material breach of any of its agreements or other covenants
under this Agreement) in the event of (i) a breach of any
covenant or agreement set forth in this
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Agreement by the other party hereto or (ii) any inaccuracy
in the representations and warranties of the other party hereto
set forth in this Agreement when made or at any time prior to
the Effective Time, in either case such that the conditions to
the consummation of the transactions contemplated hereby set
forth in Section 7.2(a) or
Section 7.2(b) in the case of LSI, or
Section 7.3(a) or Section 7.3(b) in the
case of Agere, would not be satisfied as of the time of such
breach or as of the time such representation and warranty became
inaccurate; provided, however, that notwithstanding the
foregoing, in the event that any such breach or inaccuracy is
curable through the exercise of commercially reasonable efforts
by the party committing such breach or making such inaccurate
representations and warranties, then the party seeking to
terminate this Agreement pursuant to this
Section 8.1(e) shall not be permitted to terminate
this Agreement pursuant to this Section 8.1(e) until
the expiration of a forty five (45) calendar day period
after delivery of written notice of such breach or inaccuracy to
the party committing such breach or making such inaccurate
representations and warranties (it being understood that the
party seeking to terminate this Agreement pursuant to this
Section 8.1(e) may not terminate this Agreement
pursuant to this Section 8.1(e) if such breach or
inaccuracy is cured by the other party hereto within such forty
five (45) calendar day period); or
(f) by either LSI or Agere in the event that a Triggering
Event shall have occurred with respect to the other party
hereto, whether promptly after the Triggering Event giving rise
to either partys right to terminate this Agreement
pursuant to Section 8.1(f) or at any time
thereafter. For all purposes of and under this Agreement, a
Triggering Event shall be deemed to have
occurred with respect to LSI or Agere if, prior to the Effective
Time, any of the following shall have occurred with respect to
such party: (i) such party shall have failed to duly call,
give notice of, convene and hold the Agere Stockholder Meeting
or LSI Stockholder Meeting, as applicable, or such party shall
have failed to take a vote on the Agere Voting Proposal or the
LSI Voting Proposal, as applicable, at its respective Merger
Stockholder Meeting, all in accordance with
Section 6.3; (ii) the Agere Board or any
committee thereof shall have for any reason effected an Agere
Board Recommendation Change in the case of Agere, or the LSI
Board shall have effected an LSI Board Recommendation Change in
the case of LSI; (iii) Agere shall have failed to include
the Agere Board Recommendation in the Joint Proxy
Statement/Prospectus in the case of Agere, or LSI shall have
failed to include the LSI Board Recommendation in the Joint
Proxy Statement/Prospectus in the case of LSI; (iv) the
Agere Board or any committee thereof shall have for any reason
approved, or recommended that the Agere Stockholders approve,
any Acquisition Proposal or Acquisition Transaction other than
the transactions contemplated by this Agreement (whether or not
a Superior Proposal) in the case of Agere, or the LSI Board or
any committee thereof shall have for any reason approved, or
recommended that the LSI Stockholders approve, any Acquisition
Proposal or Acquisition Transaction other than the transactions
contemplated by this Agreement (whether or not a Superior
Proposal) in the case of LSI; (v) except for a
confidentiality agreement expressly permitted by
Section 6.1, such party shall have entered into a
letter of intent, memorandum of understanding or other Contract
accepting any Acquisition Proposal or Acquisition Transaction
(whether or not a Superior Proposal); or (vi) an
Acquisition Proposal (whether or not a Superior Proposal) shall
have been made in respect of such party by a Person unaffiliated
with the other party hereto and, within ten (10) Business
Days after notice of such Acquisition Proposal is first
published, sent or given to such partys stockholders, and,
if requested by the other party hereto, such party shall not
have sent to its stockholders, pursuant to
Rule 14e-2
under the Exchange Act, a statement unconditionally reaffirming
the Agere Board Recommendation in the case of Agere, or the LSI
Board Recommendation in the case of LSI, and unconditionally
recommending that the its stockholders reject such Acquisition
Proposal and not tender any shares of its capital stock into
such Acquisition Proposal if made in the form of a tender or
exchange offer.
8.2 Effect of
Termination. In the event of the termination
of this Agreement pursuant to Section 8.1, this
Agreement shall forthwith become void and there shall be no
liability on the part of any party hereto or any of its
directors, officers, affiliates or stockholders except
(i) that the provisions of this Section 8.2,
Section 8.3 and Article IX shall survive
any termination of this Agreement and (ii) nothing herein
shall relieve any party from liability for any willful breach of
this Agreement. The Confidentiality Agreement shall survive
termination of this Agreement as provided therein.
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8.3 Fees and Expenses.
(a) General. Except as set forth
in this Section 8.3, all fees and expenses (as
defined below) incurred in connection with this Agreement and
the transactions contemplated hereby (including all fees and
expenses incurred in connection with the preparation, printing
and filing, as applicable, of the Registration Statement
(including any preliminary materials related thereto and all
amendments and supplements thereto, as well as any financial
statements and schedules thereto), the Joint Proxy
Statement/Prospectus (including any preliminary materials
related thereto and all amendments and supplements thereto, as
well as any financial statements and schedules thereto), and
filings by LSI and Agere under the HSR Act, the EC Merger
Regulation or any similar filing requirement of any Governmental
Authority applicable to this Agreement and the transactions
contemplated hereby) shall be paid by the party incurring such
Expenses, whether or not the transactions contemplated hereby
are consummated.
(b) Agere Payments.
(i) Agere shall pay to LSI a fee equal to $120,000,000 (the
Termination Fee Amount), by wire
transfer of immediately available funds to an account or
accounts designated in writing by LSI, within one Business Day
after demand by LSI, in the event that (A) either LSI or
Agere terminate this Agreement pursuant to
Section 8.1(d)(ii) (or after the Agere Stockholder
Meeting has been held and a vote taken on the Agere Voting
Proposal and there has been a failure to obtain the Requisite
Agere Stockholder Approval, and this Agreement thereby becomes
terminable pursuant to Section 8.1(d)(ii) as a
result, Agere terminates this Agreement for another reason)
(B) following the execution and delivery of this Agreement
and prior to the Agere Stockholder Meeting (or any adjournment
or postponement thereof) at which a vote is taken on the Agere
Stockholder Proposal, an Acquisition Proposal in respect of
Agere shall have been made to Agere or the Agere Board, or shall
have been directly communicated or otherwise made known to Agere
Stockholders, or shall have been publicly announced or shall
have become publicly known, or any Person shall have publicly
announced an intention (whether or not conditional and whether
or not withdrawn) to make an Acquisition Proposal in respect of
Agere, and (C) within twelve (12) months following the
termination of this Agreement, either an Acquisition Transaction
in respect of Agere (whether or not the Acquisition Transaction
referenced in the preceding clause (B)) is consummated or Agere
enters into a letter of intent, memorandum of understanding or
other Contract providing for an Acquisition Transaction in
respect of Agere (whether or not the Acquisition Transaction
referenced in the preceding clause (B) is consummated).
(ii) Agere shall pay to LSI a fee equal to the Termination
Fee Amount, by wire transfer of immediately available funds to
an account or accounts designated in writing by LSI, within one
Business Day after demand by LSI, in the event that (A) LSI
terminates this Agreement pursuant to Section 8.1(e)
as a result of a knowing or intentional breach intended to
facilitate, assist or otherwise benefit an Acquisition Proposal
or the Person making an Acquisition Proposal (or after a breach
occurs, and this Agreement thereby becomes terminable pursuant
to Section 8.1(e) as a result, Agere terminates this
Agreement for another reason), (B) following the execution
and delivery of this Agreement and prior to the breach forming
the basis of such termination, an Acquisition Proposal in
respect of Agere shall have been made to Agere or the Agere
Board, or shall have been directly communicated or otherwise
made known to Agere Stockholders, or shall have been publicly
announced or shall have become publicly known, or any Person
shall have publicly announced an intention (whether or not
conditional and whether or not withdrawn) to make an Acquisition
Proposal in respect of Agere, and (C) within twelve
(12) months following the termination of this Agreement,
either an Acquisition Transaction in respect of Agere (whether
or not the Acquisition Transaction referenced in the preceding
clause (B)) is consummated or Agere enters into a letter of
intent, memorandum of understanding or other Contract providing
for an Acquisition Transaction in respect of Agere (whether or
not the Acquisition Transaction referenced in the preceding
clause (B) is consummated).
(iii) Agere shall pay to LSI a fee equal to the Termination
Fee Amount, by wire transfer of immediately available funds to
an account or accounts designated in writing by LSI within one
Business Day after demand by LSI, in the event that LSI
terminates this Agreement pursuant to Section 8.1(f)
(or after a Triggering Event occurs with respect to Agere, and
this Agreement thereby becomes terminable pursuant to
Section 8.1(f) as a result, Agere terminates this
Agreement for another reason) (it being understood and hereby
agreed that the failure to terminate this Agreement pursuant to
Section 8.1(f) promptly following a Triggering Event
shall not prejudice or otherwise limit or impair such
partys ability to terminate this Agreement pursuant to
Section 8.1(f) at any subsequent point in time and
collect the fee contemplated by this
Section 8.3(b)(iii)).
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(iv) In no event shall Agere be required to pay the
Termination Fee pursuant to this Section 8.3(b) on
more than one occasion.
(c) LSI Payments.
(i) LSI shall pay to Agere a fee equal to the Termination
Fee Amount, by wire transfer of immediately available funds to
an account or accounts designated in writing by Agere, within
one Business Day after demand by Agere, in the event that
(A) either Agere or LSI terminate this Agreement pursuant
to Section 8.1(d)(i) (or after the LSI Stockholder
Meeting has been held and a vote taken on the LSI Voting
Proposal and there has been a failure to obtain the Requisite
LSI Stockholder Approval, and this Agreement thereby becomes
terminable pursuant to Section 8.1(d)(i) as a
result, LSI terminates this Agreement for another reason)
(B) following the execution and delivery of this Agreement
and prior to the LSI Stockholder Meeting (or any adjournment or
postponement thereof) at which a vote is taken on the LSI Voting
Proposal, an Acquisition Proposal in respect of LSI shall have
been made to LSI or the LSI Board, or shall have been directly
communicated or otherwise made known to LSI Stockholders, or
shall have been publicly announced or shall have become publicly
known, or any Person shall have publicly announced an intention
(whether or not conditional and whether or not withdrawn) to
make an Acquisition Proposal in respect of LSI, and
(C) within twelve (12) months following the
termination of this Agreement, either an Acquisition Transaction
in respect of LSI (whether or not the Acquisition Transaction
referenced in the preceding clause (B)) is consummated or
LSI enters into a letter of intent, memorandum of understanding
or other Contract providing for an Acquisition Transaction in
respect of LSI (whether or not the Acquisition Transaction
referenced in the preceding clause (B) is consummated).
(ii) LSI shall pay to Agere a fee equal to the Termination
Fee Amount, by wire transfer of immediately available funds to
an account or accounts designated in writing by Agere, within
one Business Day after demand by Agere, in the event that
(A) Agere terminates this Agreement pursuant to
Section 8.1(e) as a result of a knowing or
intentional breach intended to facilitate, assist or otherwise
benefit an Acquisition Proposal or the Person making an
Acquisition Proposal (or after a breach occurs, and this
Agreement thereby becomes terminable pursuant to
Section 8.1(e) as a result, LSI terminates this
Agreement for another reason), (B) following the execution
and delivery of this Agreement and prior to the breach forming
the basis of such termination, an Acquisition Proposal in
respect of LSI shall have been made to LSI or the LSI Board, or
shall have been directly communicated or otherwise made known to
LSI Stockholders, or shall have been publicly announced or shall
have become publicly known, or any Person shall have publicly
announced an intention (whether or not conditional and whether
or not withdrawn) to make an Acquisition Proposal in respect of
LSI, and (C) within twelve (12) months following the
termination of this Agreement, either an Acquisition Transaction
in respect of LSI (whether or not the Acquisition Transaction
referenced in the preceding clause (B)) is consummated or
LSI enters into a letter of intent, memorandum of understanding
or other Contract providing for an Acquisition Transaction in
respect of LSI (whether or not the Acquisition Transaction
referenced in the preceding clause (B) is consummated).
(iii) LSI shall pay to Agere a fee equal to the Termination
Fee Amount, by wire transfer of immediately available funds to
an account or accounts designated in writing by Agere within one
Business Day after demand by Agere, in the event that Agere
terminates this Agreement pursuant to Section 8.1(f)
(or after a Triggering Event occurs with respect to LSI, and
this Agreement thereby becomes terminable pursuant to
Section 8.1(f) as a result, LSI terminates this
Agreement for another reason) (it being understood and hereby
agreed that the failure to terminate this Agreement pursuant to
Section 8.1(f) promptly following a Triggering Event
shall not prejudice or otherwise limit or impair such
partys ability to terminate this Agreement pursuant to
Section 8.1(f) at any subsequent point in time and
collect the fee contemplated by this
Section 8.3(c)(iii)).
(iv) In no event shall LSI be required to pay the
Termination Fee pursuant to this Section 8.3(c)(iv)
on more than one occasion.
(d) Enforcement. Each of LSI and
Agere hereby acknowledge and agree that the covenants and
agreements set forth in this Section 8.3 are an
integral part of the transactions contemplated by this Agreement
and, without these covenants and agreements, the parties hereto
would not have entered into this Agreement. Accordingly, if
either LSI or Agere shall fail to pay in a timely manner the
amounts due pursuant to Section 8.3(b), and, in
order to obtain such payment, the other party hereto shall make
a claim that results in a judgment against the non-paying party,
the non-paying party shall pay to the claimant its reasonable
costs and expenses (including its reasonable
A-61
attorneys fees and expenses) incurred in connection with
such suit, together with interest on the amounts set forth in
Section 8.3(b) or Section 8.3(c), as the
case may be, at the prime rate of Citibank N.A. in effect on the
date such payment was required to be made. Payment of the fees
described in Section 8.3(b) or
Section 8.3(c), as the case may be, shall not be in
lieu of, or replacement or substitution for, damages incurred in
the event of any willful breach of this Agreement.
ARTICLE IX
GENERAL
PROVISIONS
9.1 Nonsurvival of Representations, Warranties,
Covenants and Agreements. None of the
representations, warranties, covenants or agreements set forth
in this Agreement or in any certificate or instrument delivered
pursuant hereto shall survive the Effective Time, except for any
covenants or other agreements that expressly contemplate
performance after the Effective Time, each of which shall
survive the Effective Time in accordance with their respective
terms. The Confidentiality Agreement shall survive the execution
and delivery of this Agreement or the termination of this
Agreement in accordance with the provisions of this Agreement,
as the case may be, pursuant to its terms and conditions.
9.2 Notices. All notices and
other communications given or made pursuant hereto shall be in
writing and shall be deemed to have been duly given or made if
and when delivered personally or by overnight courier to the
parties at the following addresses or sent by electronic
transmission, with confirmation received, to the telecopy
numbers specified below (or at such other address or telecopy
number for a party as shall be specified by like notice):
(a) If to LSI or Merger Sub:
LSI Logic Corporation
1621 Barber Lane, M/S D-106
Milpitas, California
95035-7458
Attention: General Counsel
Facsimile No.:
(408) 433-6896
With a copy (which shall not constitute notice) to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California
94304-1050
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Attention:
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Larry W. Sonsini, Esq.
Matthew Sonsini, Esq.
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Facsimile No.:
(650) 493-6811
and:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
One Market Street
Spear Tower, Suite 3300
San Francisco, California 94105
Attention: Michael S. Ringler, Esq.
Facsimile No.:
(415) 947-2099
(b) If to Agere:
Agere Systems Inc.
1110 American Parkway N.E.
Allentown, Pennsylvania 18109
Attention: Jean Rankin, General Counsel
Facsimile No.:
(610) 712-4030
A-62
With a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
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Attention:
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Stephen F. Arcano, Esq.
Ann Beth Stebbins, Esq.
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Facsimile No.:
(212) 735-2000
Any such notice or communication shall be deemed to have been
delivered and received (i) in the case of personal
delivery, on the date of such delivery, (ii) in the case of
facsimile, on the date sent if confirmation of receipt is
received and such notice is also promptly mailed by registered
or certified mail (return receipt requested), (iii) in the
case of a nationally-recognized overnight courier in
circumstances under which such courier guarantees next business
day delivery, on the next business day after the date when sent
and (iv) in the case of mailing, on the third (3rd)
business day following that on which the piece of mail
containing such communication is posted.
9.3 Amendment. Subject to
applicable Legal Requirements and the other provisions of this
Agreement, this Agreement may be amended by the parties hereto
by action taken by their respective boards of directors at any
time prior to the Effective Time by execution of an instrument
in writing signed on behalf of each of LSI, Merger Sub and
Agere; provided, however, that, after the adoption of
this Agreement by the Agere Stockholders or the issuance of LSI
Common Stock by the LSI Stockholders, no amendment may be made
to this Agreement that requires further approval by such
stockholders under applicable Legal Requirements.
9.4 Extension; Waiver. At
any time and from time to time prior to the Effective Time, any
party or parties hereto may, to the extent legally allowed and
except as otherwise set forth herein, (a) extend the time
for the performance of any of the obligations or other acts of
the other party or parties hereto, as applicable, (b) waive
any inaccuracies in the representations and warranties made to
such party or parties hereto contained herein or in any document
delivered pursuant hereto and (c) waive compliance with any
of the agreements or conditions for the benefit of such party or
parties hereto contained herein. Any agreement on the part of a
party or parties hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on
behalf of such party or parties, as applicable. Any delay in
exercising any right under this Agreement shall not constitute a
waiver of such right.
9.5 Severability. If any
term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any Legal Requirement, or public
policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as
the economic or legal substance of the transactions contemplated
hereby is not affected in any manner adverse to any party. Upon
such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the fullest extent possible.
9.6 Entire Agreement. This
Agreement (including the documents and instruments referred to
herein, including the Confidentiality Agreement) constitutes the
entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof.
9.7 No Third Party
Beneficiaries. Nothing in this Agreement is
intended to confer upon any person other than the parties hereto
any rights or remedies hereunder, other than (i) the
Indemnified Parties intended to be third party beneficiaries the
provisions of Section 6.14, who shall have the right
to enforce such provisions directly, (ii) the rights of
Agere Stockholders to the Merger consideration in accordance
with Article II upon consummation of the Merger, and
(iii) the rights of directors, officers and employees who
are covered by an Agere Executive Agreement to pursue damages as
a result of a breach by LSI of Section 6.13(d).
9.8 Assignment. This
Agreement shall not be assigned by operation of law or
otherwise, except that LSI and Merger Sub may assign all or any
of their rights hereunder to any wholly owned subsidiary
thereof; provided, however, that no such assignment
pursuant to this Section 9.8 shall relieve LSI of its
obligations hereunder.
A-63
9.9 Failure or Indulgence Not Waiver; Remedies
Cumulative. No failure or delay on the part
of any party hereto in the exercise of any right hereunder shall
impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or
agreement herein, nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or
of any other right. All rights and remedies existing under this
Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
9.10 Governing Law. This
Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of Delaware, without regard
to the conflict of law provisions thereof.
9.11 Consent to
Jurisdiction. Each of the parties hereto
irrevocably consents to the exclusive jurisdiction and venue of
any state court located within New Castle County, State of
Delaware in connection with any matter based upon or arising out
of this Agreement or the transactions contemplated hereby,
agrees that process may be served upon them in any manner
authorized by the laws of the State of Delaware for such persons
and waives and covenants not to assert or plead any objection
which they might otherwise have to such jurisdiction, venue and
process. Each party hereto hereby agrees not to commence any
legal proceedings relating to or arising out of this Agreement
or the transactions contemplated hereby in any jurisdiction or
courts other than as provided herein.
9.12 Waiver of Jury
Trial. EACH OF LSI, MERGER SUB AND AGERE
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HERBY OR THE ACTIONS OF LSI,
MERGER SUB OR AGERE IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.
9.13 Specific
Performance. The parties agree that
irreparable damage would occur and that the parties would not
have any adequate remedy at law in the event that any of the
provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this
Agreement, this being in addition to any other remedy to which
they are entitled at law or in equity.
9.14 Counterparts. This
Agreement may be executed in two or more counterparts, and by
the different parties hereto in separate counterparts, each of
which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank]
A-64
IN WITNESS WHEREOF, LSI, Merger Sub and Agere have caused this
Agreement to be executed as of the date first written above by
their respective officers thereunto duly authorized.
LSI LOGIC CORPORATION
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By:
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/s/ Abhijit Y. Talwalkar
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Name: Abhijit Y. Talwalkar
Title: President & Chief Executive Officer
ATLAS ACQUISITION CORP.
Name: Bryon Look
Title: President
AGERE SYSTEMS INC.
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By:
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/s/ Richard L. Clemmer
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Name: Richard L. Clemmer
Title: CEO
A-65
ANNEX B
December 3,
2006
Board of Directors
LSI Logic Corporation
1621 Barber Lane
Milpitas, CA 95035
Members of the Board:
We understand that Agere Systems, Inc. (Agere or the
Company), LSI Logic Corporation (LSI)
and Atlas Acquisition Corp., a wholly owned subsidiary of LSI
(Merger Sub), propose to enter into an Agreement and
Plan of Merger, substantially in the form of the draft dated
December 3, 2006 (the Merger Agreement), which
provides, among other things, for the merger
(Merger) of Merger Sub with and into the Company.
Pursuant to the Merger, Agere will become a wholly owned
subsidiary of LSI and each outstanding share of common stock,
par value $0.01 per share, of Agere (the Agere Common
Stock), other than shares held by LSI, Merger Sub or the
Company, or by any direct or indirect wholly owned subsidiary of
LSI, Merger Sub or the Company, will be converted into the right
to receive 2.16 (the Exchange Ratio) shares of
common stock, par value $0.01 per share, of LSI (the
LSI Common Stock). The terms and conditions of the
Merger are more fully set forth in the Merger Agreement.
You have asked for our opinion as to whether the Exchange Ratio
pursuant to the Merger Agreement is fair from a financial point
of view to LSI.
For purposes of the opinion set forth herein, we have:
i) reviewed certain publicly available financial statements
and other business and financial information of LSI and Agere,
respectively;
ii) reviewed certain internal financial statements and
other financial and operating data concerning LSI and Agere,
respectively, prepared by the managements of LSI and Agere,
respectively;
iii) reviewed certain financial projections concerning LSI
and Agere, respectively, prepared by the managements of LSI and
Agere, respectively;
iv) discussed the past and current operations and financial
condition and the prospects of LSI and Agere, respectively, with
senior executives of LSI and Agere, respectively;
v) discussed certain strategic, financial and operational
benefits anticipated from the Merger with the managements of LSI
and Agere, respectively;
vi) reviewed the pro forma financial impact of the Merger
on LSIs earnings per share, consolidated capitalization
and financial ratios;
vii) reviewed the reported prices and trading activity for
LSI Common Stock and Agere Common Stock, respectively;
viii) compared the financial performance of LSI and Agere,
respectively, and the prices and trading activity of LSI Common
Stock and Agere Common Stock, respectively, with that of certain
other publicly-traded companies comparable with LSI and Agere,
respectively, and their securities;
ix) reviewed the financial terms, to the extent publicly
available, of certain comparable acquisition transactions;
x) participated in discussions and negotiations among
representatives of LSI and Agere and their financial and legal
advisors;
xi) reviewed the Merger Agreement and certain related
documents; and
xii) performed such other analyses and considered such
other factors as we have deemed appropriate.
B-1
We have assumed and relied upon without independent verification
the accuracy and completeness of the information reviewed by us
for the purposes of this opinion. With respect to the internal
financial projections, including information relating to the
strategic, financial and operational benefits anticipated from
the Merger and assessments regarding the prospects of LSI and
Agere, we have assumed that they have been reasonably prepared
on bases reflecting the best currently available estimates and
judgments of the future financial performance of LSI and Agere,
respectively. We have relied upon, without independent
verification, the assessment by the managements of LSI and Agere
of: (i) the strategic, financial and other benefits
expected to result from the Merger; (ii) the timing and
risks associated with the integration of LSI and Agere;
(iii) their ability to retain key employees of LSI and
Agere, respectively and (iv) the validity of, and risks
associated with, LSIs and Ageres existing and future
intellectual property, products, services and business models.
In addition, we have assumed that the Merger will be consummated
in accordance with the terms set forth in the Merger Agreement
without any waiver, amendment or delay of any terms or
conditions, including, among other things, the Merger will be
treated as a tax-free reorganization pursuant to the Internal
Revenue Code of 1986, as amended. We have also assumed that in
connection with the receipt of all the necessary regulatory
approvals for the proposed Merger, no restrictions will be
imposed or delays will result that would have a material adverse
affect on the contemplated benefits expected to be derived in
the proposed Merger. We are not legal, tax, regulatory or
actuarial advisors. We are financial advisors only and have
relied upon, without independent verification, the assessment of
LSI and its legal, tax, regulatory and actuarial advisors with
respect to such matters.
We have not made any independent valuation or appraisal of the
assets or liabilities of LSI and Agere, nor have we been
furnished with any such appraisals. Our opinion is necessarily
based on financial, economic, market and other conditions as in
effect on, and the information made available to us as of, the
date hereof. Events occurring after the date hereof may affect
this opinion and the assumptions used in preparing it, and we do
not assume any obligation to update, revise or reaffirm this
opinion.
We have acted as financial advisor to the Board of Directors of
LSI in connection with this transaction and will receive a fee
for our services, a substantial portion of which is contingent
upon the closing of the Merger. In the past, Morgan
Stanley & Co. Incorporated (Morgan Stanley)
and its affiliates have provided financial advisory and
financing services for LSI and the Company and have received
fees in connection with such services. In the ordinary course of
our trading, brokerage, investment management and financing
activities, Morgan Stanley or its affiliates may at any time
hold long or short positions, and may trade or otherwise effect
transactions, for our own account or the accounts of customers,
in debt or equity securities or senior loans of LSI, Agere or
any other company or any currency or commodity that may be
involved in this transaction.
It is understood that this letter is for the information of the
Board of Directors of LSI and may not be used for any other
purpose without our prior written consent, except that a copy of
this opinion in its entirety and a description thereof approved
by us may be included in any filing LSI is required to make with
the Securities and Exchange Commission in connection with this
transaction if such inclusion is required by applicable law. In
addition, this opinion does not in any manner address the prices
at which LSI Common Stock will trade following consummation of
the Merger and Morgan Stanley expresses no opinion or
recommendation as to how the shareholders of LSI and Agere
should vote at the shareholders meetings to be held in
connection with the Merger.
Based on and subject to the foregoing, we are of the opinion on
the date hereof that the Exchange Ratio pursuant to the Merger
Agreement is fair from a financial point of view to LSI.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
Michael F. Wyatt
Managing Director
B-2
Annex C
Goldman,
Sachs and Co. 555 California St. San Francisco, California
94104
Tel: 415-393-7500
PERSONAL AND CONFIDENTIAL
December 3, 2006
Board of Directors
Agere Systems Inc.
1110 American Parkway N.E.
Allentown, PA 18109
Ladies and Gentlemen:
You have requested our opinion as to the fairness from a
financial point of view to the holders of the outstanding shares
of common stock, par value $0.01 per share (the
Shares), of Agere Systems Inc. (the
Company) of the exchange ratio of 2.16 shares
of common stock, par value $0.01 per share (the LSI
Common Stock), of LSI Logic Corporation (LSI)
to be received for each Share (the Exchange Ratio)
pursuant to the Agreement and Plan of Merger, dated as of
December 3, 2006 (the Agreement), among LSI,
Atlas Acquisition Corp., a wholly owned subsidiary of LSI, and
the Company.
Goldman, Sachs & Co. and its affiliates, as part of
their investment banking business, are continually engaged in
performing financial analyses with respect to businesses and
their securities in connection with mergers and acquisitions,
negotiated underwritings, competitive biddings, secondary
distributions of listed and unlisted securities, private
placements and other transactions as well as for estate,
corporate and other purposes. We have acted as financial advisor
to the Company in connection with, and have participated in
certain of the negotiations leading to, the transaction
contemplated by the Agreement (the Transaction). We
expect to receive fees for our services in connection with the
Transaction, all of which are contingent upon consummation of
the Transaction, and the Company has agreed to reimburse our
expenses and indemnify us against certain liabilities arising
out of our engagement. In addition, we have provided certain
investment banking services to the Company from time to time,
including having acted as an agent in connection with the
Companys reverse stock split in February 2005 and the
Companys share repurchase program in November and December
of 2005. We also may provide investment banking services to the
Company and LSI in the future.
In connection with the above-described investment banking
services we have received, and may receive, compensation.
Goldman, Sachs & Co. is a full service securities firm
engaged, either directly or through its affiliates, in
securities trading, investment management, financial planning
and benefits counseling, risk management, hedging, financing and
brokerage activities for both companies and individuals. In the
ordinary course of these activities, Goldman, Sachs &
Co. and its affiliates may provide such services to the Company,
LSI and their respective affiliates, may actively trade the debt
and equity securities (or related derivative securities) of the
Company and LSI for their own account and for the accounts of
their customers and may at any time hold long and short
positions of such securities.
In connection with this opinion, we have reviewed, among other
things, the Agreement; annual reports to stockholders and Annual
Reports on
Form 10-K
of the Company and LSI for the five fiscal years ended
September 30, 2006 and December 31, 2005,
respectively; certain interim reports to stockholders and
Quarterly Reports on
Form 10-Q
of the Company and LSI; certain other communications from the
Company and LSI to their respective stockholders; certain
research analyst estimates of the future financial performance
of the Company and LSI; and certain internal financial analyses
and forecasts for LSI prepared by its management, as reviewed
and approved for use in connection with this opinion by the
management of the Company, certain internal financial analyses
and forecasts for the Company prepared by its management and
certain cost savings and operating
C-1
Board of Directors
Agere Systems Inc.
December 3, 2006
Page Two
synergies projected by the managements of the Company and LSI to
result from the Transaction. We also have held discussions with
members of the senior managements of the Company and LSI
regarding their assessment of the strategic rationale for, and
the potential benefits of, the Transaction and the past and
current business operations, financial condition and future
prospects of their respective companies. In addition, we have
reviewed the reported price and trading activity for the Shares
and LSI Common Stock, compared certain financial and stock
market information for the Company and LSI with similar
information for certain other companies the securities of which
are publicly traded, reviewed the financial terms of certain
recent business combinations in the semiconductor industry
specifically and in other industries generally and performed
such other studies and analyses, and considered such other
factors, as we considered appropriate.
We have relied upon the accuracy and completeness of all of the
financial, accounting, legal, tax and other information
discussed with or reviewed by us and have assumed such accuracy
and completeness for purposes of rendering this opinion. In
addition, we have not made an independent evaluation or
appraisal of the assets and liabilities (including any
contingent, derivative or off-balance-sheet assets and
liabilities) of the Company, LSI or any of their respective
subsidiaries and we have not been furnished with any such
evaluation or appraisal. We have assumed that all governmental,
regulatory or other consents and approvals necessary for the
consummation of the Transaction will be obtained without any
adverse effect on the Company or LSI or on the expected benefits
of the Transaction in any way meaningful to our analysis.
Our opinion does not address the underlying business decision of
the Company to engage in the Transaction nor are we expressing
any opinion as to the prices at which shares of LSI Common Stock
will trade at any time. Our opinion is necessarily based on
economic, monetary, market and other conditions as in effect on,
and the information made available to us as of, the date hereof.
Our advisory services and the opinion expressed herein are
provided for the information and assistance of the Board of
Directors of the Company in connection with its consideration of
the Transaction and such opinion does not constitute a
recommendation as to how any holder of Shares should vote with
respect to such Transaction.
Based upon and subject to the foregoing, it is our opinion that,
as of the date hereof, the Exchange Ratio pursuant to the
Agreement is fair from a financial point of view to the holders
of Shares.
Very truly yours,
(GOLDMAN, SACHS & CO.)
C-1
APPENDIX
1
AGERE SYSTEMS INC. SHORT TERM INCENTIVE PLAN
SECTION 1. PURPOSE. The purpose of the Agere Systems Inc. Short Term Incentive Plan
(the Plan) is to provide Officers of Agere Systems Inc. (the Company) and its affiliates with
incentive compensation based upon the level of achievement of financial and other performance
criteria. The Plan will enhance the ability of the Company and its affiliates to attract
individuals of exceptional managerial talent upon whom, in large measure, the sustained progress,
growth and profitability of the Company depends.
SECTION 2. DEFINITIONS. As used in the Plan, the following terms shall have the
meanings set forth below:
(a) Award means a cash payment.
(b) Board means the Board of Directors of the Company.
(c) Code means the Internal Revenue Code of 1986, as amended from time to time and any
successor thereto.
(d) Committee means the Compensation Committee of the Board (or any successor committee).
(e) Covered Employee means a covered employee within the meaning of Section 162(m) of the
Code.
(f) Measurement Period means a period of time selected by the Committee for which Net Income
will be measured for purposes of Section 5.
(5) Net Income means the net income before taxes of the Company as determined under
generally accepted accounting principles, excluding (a) extraordinary items; (b) cumulative effects
of changes in accounting principles; (c) securities gains and losses; (d) amortization or write-off
of goodwill, acquired intangibles and purchased in-process research and development; and (e)
nonrecurring items including, but not limited to, gains or losses on asset dispositions and sales
of divisions, business units or subsidiaries, restructuring and separation charges, and gains and
losses from qualified benefit plan curtailments and settlements.
(h) Officer means any employee of the Company or any affiliate holding a position above the
executive (E Band) level or any salary grade level that the Committee determines, in its sole
discretion, is the equivalent thereof.
(i) Outside Directors means those members of the Board who are outside directors within
the meaning of Section 162(m) of the Code.
1
Agere systems Inc. Short Term Incentive Plan
(j) Participant means any person selected by the Committee to participate in the Plan.
(k) Performance Period means a period of time selected by the Committee to which an Award
relates.
(l) Person means any individual, corporation, partnership, association, joint-stock company,
trust, unincorporated organization, or government or political subdivision thereof.
(m) Target Award means an Award level that may be paid if certain performance criteria are
achieved.
SECTION 3. ELIGIBILITY. Persons employed by the Company or any of its affiliates
during a Performance Period in active service at an Officer level for all or any part of the
Performance Period are eligible to be Participants under the Plan for such Performance Period
(whether or not so employed or living at the date an Award is made) and may be considered by the
Committee for an Award. An Officer is not rendered ineligible to be a Participant by reason of
being a member of the Board.
SECTION 4. AWARDS-GENERAL. The Committee will establish Target Awards for
Participants at the beginning of each Performance Period and the performance criteria to be
applicable to Awards for such Performance Period. The performance criteria utilized by the
Committee may be based on individual performance, earnings per share, other Company and business
unit financial objectives, customer satisfaction indicators, operational efficiency measures, and
other measurable objectives tied to the Companys success or such other criteria as the Committee
shall determine. Awards will be made by the Committee following the end of each Performance
Period. Awards shall be paid after the end of the Performance Period. The Award amount with
respect to a Participant shall be determined in the sole discretion of the Committee, or, in the
case of an Award to a Participant who is not a Covered Employee, in the sole discretion of the
Committee or such person or committee empowered by the Committee or Board. The determination of
the Award amount for each Participant shall be made at the end of each Performance Period and may
be less than (including no Award) or, in the case of a Participant who is not a Covered Employee,
greater than the Target Award.
SECTION 5. AWARDS TO COVERED EMPLOYEES.
(a) If the Committee determines at the time a Target Award is established for a Participant
that such Participant is, or may be as of the end of the tax year for which the Company would claim
a tax deduction in connection with such Award, a Covered Employee, then the Committee may provide
that this Section 5 is applicable to such Award under such terms as the Committee shall determine.
(b) If an Award is subject to this Section 5, then the payment of cash pursuant thereto shall
be subject to the Company having a level of Net Income for the applicable Measurement
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Agere systems Inc. Short Term Incentive Plan
Period set by the Committee within the time prescribed by Section 162(m) of the Code or the
regulations thereunder in order for the level to be considered pre-established. The Committee
may, in its discretion, reduce the amount of such an Award at any time prior to payment based on
such criteria as it shall determine, including but not limited to individual merit and the
attainment of specified levels of one or any combination of the following: net cash provided by
operating activities or other cash flow-based measure, earnings per share from continuing
operations, operating income, revenues, gross margin, return on operating assets, return on equity,
economic value added, stock price appreciation, total shareowner return (measured in terms of stock
price appreciation and dividend growth), or cost control, of the Company or the affiliate or
division of the Company for or within which the Participant is primarily employed.
(c) Notwithstanding any contrary provision of this Plan, the Committee may not adjust upwards
the amount payable pursuant to any Award subject to this Section 5, nor may it waive the
achievement of the Net Income requirement contained in Section 5(b), except in the case of the
death or disability of the Participant.
(d) Prior to the payment of any Award subject to this Section 5, the Committee shall certify
in writing that the Net Income requirement applicable to such Award was met.
(e) The Committee shall have the power to impose such other restrictions on Awards subject to
this Section 5 as it may deem necessary or appropriate to ensure that such Awards satisfy all
requirements for performance-based compensation within the meaning of Section 162(m)(4)(C) of the
Code, the regulations promulgated thereunder, and any successors thereto.
SECTION 6. OTHER CONDITIONS.
(a) No person shall have any claim to an Award under the Plan and there is no obligation for
uniformity of treatment of Participants under the Plan. Awards under the Plan may not be assigned
or alienated.
(b) Neither the Plan nor any action taken hereunder shall be construed as giving to any
Participant the right to be retained in the employ of the Company or any affiliate.
(c) The Company or any affiliate shall have the right to deduct from any Award to be paid
under the Plan any federal, state or local taxes required by law to be withheld with respect to
such payment.
(d) Awards under the Plan will, to the extent provided therein, be included in base
compensation or covered compensation under the retirement programs of the company for purposes of
determining pensions, retirement and death related benefits.
(e) Notwithstanding any contrary provision of the Plan, the maximum amount which may be paid
to a Participant in any fiscal year is $9 million.
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Agere systems Inc. Short Term Incentive Plan
SECTION 7. DESIGNATION OF BENEFICIARIES. A Participant may, if the Committee permits,
designate a beneficiary or beneficiaries to receive all or part of the Award which may be made to
the Participant, or may be payable, after such Participants death. A designation of beneficiary
shall be made in accordance with procedures specified by the Company and may be replaced by a new
designation or may be revoked by the Participant at any time. In case of the Participants death,
an Award with respect to which a designation of beneficiary has been made (to the extent it is
valid and enforceable under applicable law) shall be paid to the designated beneficiary or
beneficiaries. Any Award granted or payable to a Participant who is deceased and not subject to
such a designation shall be distributed to the Participants estate. If there shall be any
question as to the legal right of any beneficiary to receive an Award under the Plan, the amount in
question may be paid to the estate of the Participant, in which event the Company or its affiliates
shall have no further liability to anyone with respect to such amount.
SECTION 8. PLAN ADMINISTRATION.
(a) The Committee shall have full discretionary power to administer and interpret the Plan and
to establish rules for its administration (including the power to delegate authority to others to
act for and on behalf of the Committee) subject to such resolutions, not inconsistent with the
Plan, as may be adopted by the Board, except that the Committee (or any subcommittee thereof) shall
have the exclusive authority to exercise any such power with respect to Awards to which Section 5
is applicable. In making any determinations under or referred to in the Plan, the Committee (and
its delegates, if any) shall be entitled to rely on opinions, reports or statements of employees of
the Company and its affiliates and of counsel, public accountants and other professional or expert
persons.
(b) The Plan shall be governed by the laws of the State of Delaware and applicable Federal
law.
SECTION 9. MODIFICATION OR TERMINATION OF PLAN. The Board may modify or terminate the
Plan at any time, effective at such date as the Board may determine.
4
AGERE SYSTEMS INC.
1110
AMERICAN PARKWAY NE
ROOM
12K-301
ALLENTOWN, PA 18109
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VOTE BY INTERNET www.proxyvote.com
To vote over the Internet, go to the website
address shown above. Have your proxy card in hand
when you access the website and follow the
instructions to vote. |
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VOTE BY PHONE 1-800-690-6903
To vote by phone, call the toll-free number shown
above using a touch-tone telephone. Have your
proxy card in hand when you call and follow the
instructions provided. |
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VOTE BY MAIL
To vote by mail, mark, sign and date the proxy
card below and return it in the postage-paid
envelope we have provided or send it to Agere
Systems Inc., c/o ADP, 51 Mercedes Way, Edgewood,
NY 11717. |
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The Internet and telephone voting facilities will
close at 11:59 P.M. Eastern Daylight Time on March 28, 2007. If you vote over the Internet
or by telephone, you do not need to return your
proxy card. |
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ELECTRONIC DELIVERY OF FUTURE
STOCKHOLDER COMMUNICATIONS
If you would like to reduce the costs incurred by
Agere Systems in mailing proxy materials, you can
consent to accessing all future proxy statements,
proxy cards and annual reports over the Internet.
To sign up for electronic access, please follow
the instructions above to vote using the Internet
and, when prompted, indicate that you agree to
access stockholder communications over the
Internet in future years. |
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TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
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RICSA1
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KEEP THIS PORTION FOR YOUR RECORDS |
DETACH AND RETURN THIS PORTION ONLY
THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
AGERE SYSTEMS INC.
THE BOARD OF DIRECTORS RECOMMENDS A
VOTE FOR ALL ITEMS.
Election of Directors
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To elect as Directors the nominees listed below whose terms are
described in the proxy statement/prospectus.
01) Richard L. Clemmer 02) Michael J. Mancuso 03) Kari-Pekka Wilska |
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nominee(s), mark For All Except and write the
number(s) of the nominee(s) on the line below.
Merger
and Directors Proposals
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To adopt the Merger Agreement,
dated as of December 3, 2006, with LSI Logic
Corporation and Atlas Acquisition Corp.
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To re-approve our Short Term Incentive Plan.
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To ratify the Audit Committees selection of our
independent registered public accounting firm.
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For address changes and/or comments, please check this box
and write them on the back where indicated. |
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Yes
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Please indicate if you plan to attend this meeting. |
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Please sign exactly as your name(s) appear(s) hereon. If held jointly, all owners must
sign. Trustees, administrators, etc., should include title and authority.
Corporations should provide full name of corporation and title of authorized officer signing the proxy.
Signature [PLEASE SIGN WITHIN BOX] Date
Signature (Joint Owners) Date
SAMPLE
ADMISSION TICKET
AGERE SYSTEMS INC.
2007 ANNUAL MEETING OF STOCKHOLDERS
Edward
Nash Theater
Raritan Valley Community College
Rt. 28W and
Lamington Road
North Branch, New Jersey
08876
THIS ADMISSION TICKET ADMITS ONLY THE NAMED STOCKHOLDER AND A
GUEST.
Directions:
FROM THE
NORTH
Take
Interstate 287 SOUTH to Interstate 78 WEST.
Proceed on 78 WEST for approximately 3 miles and get off at Exit 26 (Lamington/North Branch). At the traffic
light at the end of the off ramp make a left onto Rattlesnake (County Road 665) which turns into Lamington Road.
Take Lamington Road for approximately 3 miles. At the traffic light make a left onto Easton Turnpike (County Road 614).
At the next traffic light (Orr Drive) make a left into the main entrance to the College. Follow signs to parking lot #5.
Shuttle buses will take you to the entrance of the Edward Nash Theater.
FROM
THE SOUTH
Take Interstate 287 NORTH to the Route 22 WEST exit.
After approximately 7 miles (just before the 5th light), exit at Raritan Valley College Drive (Orr Drive). At the end
of Orr Drive is a traffic light. Proceed straight to enter the College. Follow signs to parking lot #5. Shuttle buses will take you to
the entrance of the Edward Nash Theater.
FROM THE EAST
Take Interstate 78 WEST and get off at Exit 26 (Lamington/North Branch).
At the traffic light at the end of the off ramp make a left onto Rattlesnake (County Road 665) which turns into Lamington Road.
Take Lamington Road for approximately 3 miles. At the traffic light make a left onto Easton Turnpike (County Road 614). At the next
traffic light (Orr Drive) make a left into the main entrance to the College. Follow signs to parking lot #5. Shuttle buses will take
you to the entrance of the Edward Nash Theater.
FROM THE
WEST
Take Interstate 78 EAST and get off at Exit 26 (Lamington/North Branch).
Turn right at the light onto Lamington Road (County Road 665). Take Lamington Road for approximately 3 miles. At the traffic light make
a left onto Easton Turnpike (County Road 614). At the next traffic light (Orr Drive) make a left into the main entrance to the College.
Follow signs to parking lot #5. Shuttle buses will take you to the entrance of the Edward Nash Theater.
NOTE: If you plan on attending the Annual Meeting in person, please bring, in addition to this
admission ticket, a proper form of identification. Video, still photography and recording devices
are not permitted at the Annual Meeting. For the safety of attendees, all handbags and briefcases
are subject to inspection. Your cooperation is appreciated.
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PROXY |
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2007 ANNUAL MEETING OF
STOCKHOLDERS March 29, 2007 9 a.m., Eastern Daylight
Time |
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THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS
FOR USE AT THE 2007 ANNUAL MEETING OF
STOCKHOLDERS.
The shares of common stock of Agere Systems Inc. you are entitled to vote at the 2007 Annual
Meeting of Stockholders will be voted as you specify.
By signing this proxy, you revoke all prior proxies and appoint Richard L. Clemmer, Peter Kelly and
Jean F. Rankin, and each of them, with full power of substitution, to vote all shares you are
entitled to vote on the matters shown on the other side, as directed in this proxy and, in their
discretion, on any other matters which may come before the Annual Meeting and all postponements and
adjournments.
THIS PROXY, WHEN PROPERLY EXECUTED, WILL
BE VOTED AS DIRECTED OR, IF NO DIRECTION IS GIVEN, WILL BE
VOTED FOR ALL NOMINEES AND FOR ITEMS 1, 3 and 4.
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Address Changes or Comments:
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(If you noted any address changes or comments above, please mark the corresponding box on the reverse side.)
PLEASE COMPLETE, SIGN AND DATE THIS PROXY ON THE OTHER SIDE AND RETURN IT IN THE ACCOMPANYING ENVELOPE.