-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OfO73mSYfnFvjIrB2QbBy1BCZeGjm/S/wx2S0nAM3xGw3Cdi6T5/65j0T5jgrh6g ooGSuAU+YmiHWXcHRFXxRA== 0000950123-99-005317.txt : 19990603 0000950123-99-005317.hdr.sgml : 19990603 ACCESSION NUMBER: 0000950123-99-005317 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990602 EFFECTIVENESS DATE: 19990602 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FSC SEMICONDUCTOR CORP CENTRAL INDEX KEY: 0001036960 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 043363001 STATE OF INCORPORATION: DE FISCAL YEAR END: 0525 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: SEC FILE NUMBER: 333-35347 FILM NUMBER: 99639257 BUSINESS ADDRESS: STREET 1: 333 WESTERN AVENUE STREET 2: MAIL STOP 01 00 CITY: SOUTH PORTLAND STATE: MA ZIP: 04106 BUSINESS PHONE: 2077758100 MAIL ADDRESS: STREET 1: 333 WESTERN AVENUE STREET 2: MAIL STOP 01 00 CITY: SOUTH PORTLAND STATE: ME ZIP: 04106 S-8 POS 1 AMENDMENT TO FORM S-8 1 As filed with the Securities and Exchange Commission on June 2, 1999 Registration No. 333-35347 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 FSC SEMICONDUCTOR CORPORATION (Exact Name of Issuer as specified in its charter) Delaware 04-3363001 (State or other jurisdiction of (IRS Employer incorporation or organization) Identification No.) 333 Western Avenue Mail Stop 01-00 South Portland, Maine 04106 (Address of Principal Executive (Zip Code) Offices) STOCK OPTION PLAN (Full title of the plan) David J. Champoux Pierce Atwood One Monument Square Portland, Maine 04101 (Name and address of agent for service) (207) 791-1100 (Telephone number, including area code, of agent for service) ================================================================================ CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Minimum Title of Securities Amount to Offering Price Offering Price Amount of to be Registered be Registered Per Share Per Share Registration Fee - ---------------- ------------- --------- --------- ---------------- Class A Common Stock 6,084,000 shares $10.00(1) $10.00(1) $17,947.80(2) par value $.01 per share
- -------------------- (1) Estimated solely for the purpose of calculating the registration fee, and based upon the exercise price of the options granted to date (and the fact that book value of such shares is negative at present), in accordance with Rules 457(c) and 457(h) of the Securities Act of 1933. (2) Payable due to the increase in the number of shares registered and in the current exercise price. 2 INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference The following documents, which are filed with the Securities and Exchange Commission (the "Commission"), are incorporated in this Registration Statement by reference: (1) The Registrant's latest annual report filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (2) All other reports filed pursuant to Sections 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document referred to in (1) above. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all shares of Class A Common Stock offered hereby have been sold or which deregisters all shares of Class A Common Stock then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the respective dates of filing of such documents. Item 4. Description of Securities The Registrant's authorized capital stock consists of 80,000,000 shares of Class A Common Stock, $.01 par value ("Common Stock"), 80,000,000 shares of Class B Common Stock, $.01 par value ("Class B Common Stock") and 70,000 shares of 12% Series A Cumulative Compounding Preferred Stock ("Preferred Stock"), $1,000 per share stated value. Dividends may be paid to the holders of the Common Stock and Class B Common Stock when and if declared by the Board of Directors out of funds legally available therefor, and after payment of cumulative dividends on outstanding Preferred Stock, if any. Under the terms of its existing indebtedness, the Registrant and its subsidiaries are subject to substantial restrictions on their ability to pay dividends on Common Stock and Class B Common Stock, and management does not anticipate any such dividend payments in the foreseeable future. Also, the Registrant may not pay any dividend upon (except for a dividend payable in Junior Stock, as defined below), or redeem or otherwise acquire shares of, capital stock junior to the Preferred Stock (including the Common Stock and Class B Common Stock) ("Junior Stock") unless all cumulative dividends on the Preferred Stock have been paid in full. Upon liquidation, dissolution or winding up of the Registrant, holders of Preferred Stock will be entitled to receive out of the legally available assets of the Registrant, before any amount shall be paid to holders of Junior Stock, an amount equal to $1,000 per share of Preferred Stock, plus all accrued and unpaid dividends to the date of final distribution. If such available assets are insufficient to pay the holders of the outstanding shares of Preferred II-1 3 Stock in full, such assets, or the proceeds thereof, will be distributed ratably among such holders. Under the Certificate of Incorporation of the Registrant, a holder of Common Stock or Class B Common Stock may convert any or all of his shares into an equal number of shares of the other class of common stock; provided that in the case of a conversion from Class B Common Stock, which is nonvoting, into Common Stock, which is voting, the holder of shares to be converted would be permitted under applicable law to hold the total number of shares of Common Stock which would be held after giving effect to the conversion. The Common Stock and the Class B Common Stock are not entitled to any preemptive or other subscription rights and do not have any redemption or sinking fund provisions. Holders of Common Stock are entitled to one vote per share held of record on all matters submitted to a vote of stockholders. Except as required by law, the holders of Class B Common Stock will have no voting rights. Voting in the election of directors is not cumulative. Holders of Preferred Stock have limited voting rights. Upon liquidation, the holders of Common Stock and Class B Common Stock are entitled to share ratably in the entire net assets of the Registrant remaining available for distribution to stockholders after payment of all amounts payable on liquidation in respect of outstanding shares of Preferred Stock, if any. All outstanding shares of Common Stock and Class B Common Stock are, and the shares offered hereby will be, validly issued, fully paid and nonassessable. The persons and entities who become stockholders of the Registrant in connection with its formation are parties to a Securities Purchase and Holders Agreement (the "Stockholders' Agreement") containing certain agreements among such stockholders with respect to the capital stock and corporate governance of the Registrant. The following is a summary description of the principal terms of the Stockholders' Agreement, a copy of which is available upon request to the Registrant. Pursuant to the Stockholders' Agreement, the Board of Directors of the Registrant will be composed at all times of seven directors as follows: Kirk P. Pond (so long as he continues to own shares of Common Stock, Class B Common Stock or Preferred Stock); Joseph R. Martin (so long as he continues to own shares of Common Stock, Class B Common Stock or Preferred Stock); the President of the Registrant if either of Messrs. Pond or Martin is no longer serving on the Board of Directors; if National Semiconductor Corporation so chooses, so long as National Semiconductor Corporation continues to own shares of Common Stock or Preferred Stock, one individual designated by National Semiconductor Corporation, provided that such person shall initially be either Brian L. Halla or Donald Macleod (until the earlier of March 11, 1999 or the date upon which such person ceases to be an executive officer of National Semiconductor Corporation) and thereafter shall be an executive officer of National Semiconductor Corporation reasonably acceptable to the remaining directors; two individuals designated by Sterling Capital Holdings, LLC ("Sterling"); and the remaining directors such independent directors as shall be designated by II-2 4 Sterling (to the extent permitted by applicable law as determined by Sterling in its sole discretion), subject to the right of the Chief Executive Officer of the Registrant to veto the election of any such independent director, provided, that in the event that Sterling concludes that it is unable to designate, or elects not to designate for any reason, one or more of such independent directors or the election of any such independent director is not approved by the holders of a majority of the outstanding shares of Common Stock, such directorship(s) shall not be filled by the remaining members of the Registrant's Board of Directors but shall remain vacant until the election of a director designated by Sterling to fill such vacancy in accordance with the Stockholders' Agreement. The Stockholders' Agreement contains certain provisions which, with certain exceptions, restrict the ability of the parties thereto to transfer any Common Stock, Class B Common Stock or Preferred Stock except pursuant to the terms of the Stockholders' Agreement. If holders of more than 50% of the Common Stock and Class B Common Stock (voting together) approve the sale of the Registrant (an "Approved Sale"), each of such parties has agreed to consent to such sale and, if such sale includes the sale of stock, each of such parties has agreed to sell all of such stockholder's Common Stock, Class B Common Stock and Preferred Stock on the terms and conditions approved by holders of a majority of the Common Stock and Class B Common Stock then outstanding (voting together). In the event the Registrant proposes to issue and sell (other than in a public offering pursuant to a registration statement) any shares of Common Stock or Class B Common Stock or any securities containing options or rights to acquire any shares of Common Stock or Class B Common Stock or any securities convertible into Common Stock or Class B Common Stock to Sterling or its corporate affiliates, the Registrant must first offer to the parties thereto a pro rata portion of such shares. Such preemptive rights will not be applicable to the issuance of shares of Common Stock or Class B Common Stock upon the conversion of shares of one class of common stock into shares of the other class. THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF OPTIONS GRANTED UNDER THE PLAN WILL GENERALLY CONSTITUTE NEWLY ISSUED SECURITIES FOR WHICH THERE IS CURRENTLY NO ACTIVE TRADING MARKET. IF SUCH SHARES ARE TRADED AFTER THEIR INITIAL ISSUANCE, THEY MAY TRADE AT A DISCOUNT FROM THE EXERCISE PRICE UNDER SUCH OPTIONS, DEPENDING UPON THE MARKET FOR SIMILAR SECURITIES AND OTHER FACTORS, INCLUDING GENERAL ECONOMIC AND INDUSTRY CONDITIONS AND THE FINANCIAL CONDITION OF, PERFORMANCE OF AND PROSPECTS FOR THE COMPANY AND ITS SUBSIDIARIES. THE COMPANY HAS FILED WITH THE COMMISSION A REGISTRATION STATEMENT ON FORM S-1 WITH RESPECT TO AN OFFERING OF ITS CLASS A COMMON STOCK; HOWEVER, THERE CAN BE NO ASSURANCE THAT SUCH OFFERING WILL BE CONSUMMATED OR THAT THE CLASS A COMMON STOCK WILL BE LISTED FOR TRADING ON ANY SECURITIES EXCHANGE OR RECEIVE APPROVAL FOR QUOTATION THROUGH ANY AUTOMATED QUOTATION SYSTEM. THERE CAN BE NO ASSURANCE THAT AN ACTIVE TRADING MARKET WILL DEVELOP FOR THE COMMON STOCK. IF A TRADING MARKET DOES NOT DEVELOP OR IS NOT MAINTAINED, HOLDERS OF COMMON STOCK MAY EXPERIENCE DIFFICULTY IN RESELLING SUCH SHARES OR MAY BE UNABLE TO SELL THEM AT ALL. II-3 5 Affiliates of the Registrant may not reoffer or resell Common Stock acquired pursuant to the exercise of options under the Plan except: (1) pursuant to an effective registration statement covering such resale or reoffer, (2) in a transaction which meets all the requirements of Rule 144 of the Commission except paragraph (d) thereof, or (3) pursuant to any other applicable exemption from registration. An affiliate is a person who directly or indirectly controls, is controlled by, or under common control with the Registrant. Optionees are advised to consult with counsel before effecting reoffers or resales of Common Stock acquired pursuant to the exercise of options under the Plan. Management is not aware of any arrangement which could at a subsequent date result in a change in control of the Registrant. Item 5. Interests of Named Experts and Counsel Not applicable. Item 6. Indemnification Section 145 of the Delaware General Corporation Law provides in relevant part that a corporation may indemnify 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 (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person's conduct was unlawful. In addition, Section 145 provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation 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 by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue, or matter as to which such person shall have been II-4 6 adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper. Section 145 further provides that nothing in the above-described provisions shall be deemed exclusive of any other rights to indemnification or advancement of expenses to which any person may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise. The Bylaws of the Registrant provide for the indemnification of 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 (a "proceeding") by reason of the fact that such person is or was a director or officer of the Registrant or a constituent corporation absorbed in a consolidation or merger, or is or was serving at the request of the Registrant or a constituent corporation absorbed in a consolidation or merger, as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or is or was a director or officer of the Registrant serving at its request as an administrator, trustee or other fiduciary of one or more of the employee benefit plans of the Registrant or other enterprise, against expenses (including attorneys' fees), liability and loss actually and reasonably incurred or suffered by such person in connection with such proceeding, whether or not the indemnified liability arises or arose from any threatened, pending or completed proceeding by or in the right of the Registrant, except to the extent that such indemnification is prohibited by applicable law. The Bylaws of the Registrant also provide that such indemnification shall not be deemed exclusive of any other rights to which those indemnified may be entitled as a matter of law or under any by-law, agreement, vote of stockholders or otherwise. Section 102(b)(7) of the Delaware General Corporation Law provides that a corporation may in its certificate of incorporation eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director except for liability: for any breach of the director's duty of loyalty to the corporation or its stockholders; for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; under Section 174 of the Delaware General Corporation Law (pertaining to certain prohibited acts including unlawful payment of dividends or unlawful purchase or redemption of the corporation's capital stock); or for any transaction from which the director derived an improper personal benefit. The Certificate of Incorporation of the Registrant contains a provision so limiting the personal liability of directors of the Registrant. Item 7. Exemption from Registration Claimed. Not applicable. II-5 7 Item 8. Exhibits The Exhibit Index immediately preceding the exhibits is incorporated herein by reference. II-6 8 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of South Portland, State of Maine, on the 1st day of June, 1999. FSC SEMICONDUCTOR CORPORATION By: /s/ KIRK P. POND ----------------------------------- Kirk P. Pond President and Chief Executive Officer II-7 9 Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated. Signature Title Date s/ * President, Chief Executive June 1, 1999 - ------------------------------ Officer and Director Kirk P. Pond s/ * Executive Vice President, June 1, 1999 - ------------------------------ Chief Financial Officer Joseph R. Martin and Director s/ * Director June 1, 1999 - ------------------------------ Richard M. Cashin, Jr. Director - ------------------------------ Brian L. Halla s/ * Director June 1, 1999 - ------------------------------ William N. Stout s/ * Director June 1, 1999 - ------------------------------- Paul C. Schorr, IV - ---------------------- * By Kirk P. Pond, Attorney-in-Fact 10 Exhibit Index Exhibit Number Description - ------ ----------- 4.1(2) Certificate of Incorporation of the Registrant 4.2(2) Bylaws of the Registrant 4.3(3) Certificate of Amendment to Certificate of Incorporation of the Registrant 4.4(1) Amended and Restated Stock Option Plan, effective as of January 5, 1998, as amended through May 17, 1999 5.1(1) Opinion of Pierce Atwood 23.1(1) Consent of Pierce Atwood (included in Exhibit 5.1) 23.2(1) Consent of KPMG LLP 24.1(4) Power of Attorney - ---------- (1) Filed herewith. (2) Incorporated herein by reference from the Registrant's Registration Statement on Form S-4 (File No. 333-26897). (3) Incorporated by reference from the Registrant's Registration statement on Form S-8 (File No. 333-58603). (4) Previously filed. II-9 EX-4.4 2 AMENDED AND RESTATED STOCK OPTION PLAN 1 Exhibit 4.4 FSC SEMICONDUCTOR CORPORATION AMENDED AND RESTATED STOCK OPTION PLAN 1. TITLE OF PLAN The title of this Plan is the FSC Semiconductor Corporation Stock Option Plan, hereinafter referred to as the "Plan". 2. PURPOSE FSC Semiconductor established the FSC Semiconductor Corporation Stock Option Plan effective as of March 10, 1997. This document is an amendment and complete restatement of the Plan, effective January 5, 1998. The Plan is intended to align the interests of eligible key employees of FSC Semiconductor Corporation (hereinafter called the "Corporation") and its subsidiaries (as hereinafter defined) with the interests of the stockholders of the Corporation and to provide incentives for such employees to exert maximum efforts for the success of the Corporation. By extending to key employees the opportunity to acquire proprietary interests in the Corporation and to participate in its success, the Plan may be expected to benefit the Corporation and its stockholders by making it possible for the Corporation to attract and retain the best available talent and by rewarding key management and technical personnel for their part in increasing the value of the Corporation's shares. It is further intended that options granted pursuant to this Plan may be incentive stock options under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), or may be options which are not incentive stock options (hereafter called "non-qualified stock options"). 3. STOCK SUBJECT TO THE PLAN There will be reserved for issue upon the exercise of options granted under the Plan 6,084,000 shares of the Corporation's Class A Common Stock, par value $.01 per share, subject to adjustment as provided in Paragraph 8, which may be unissued shares, reacquired shares, or shares bought on the market. If any option, which shall have been granted, shall expire or terminate for any reason without having been exercised in full, the unpurchased shares shall again become available for the purposes of the Plan (unless the Plan shall have been terminated). 4. ADMINISTRATION (a) The Plan shall be administered by a committee of the Board of Directors of the Corporation (the "Committee"), consisting of two or more members of the Board of Directors. The Committee shall be constituted to permit the Plan to comply with (i) Rule 16b3 promulgated 1 2 under the Securities Exchange Act of 1934 ("Exchange Act") and any successor rule and (ii) IRS regulations issued under Section 162(m) of the Code. (b) The Committee shall have the plenary power, subject to and within the limits of the express provisions of the Plan: (i) To determine from time to time which of the eligible persons shall be granted options under the Plan; the time or times (during the term of the option) within which all or portions of each option may be exercised and the number of shares for which an option or options shall be granted to each of them. (ii) To construe and interpret the Plan and options granted under it, and to establish, amend, and revoke rules and regulations for its administration. The Committee, in the exercise of this power, shall generally determine all questions of policy and expediency that may arise, may correct any defect, or supply any omission or reconcile any inconsistency in the Plan or in any option agreement in a manner and to the extent it shall deem necessary or expedient to make the Plan fully effective. (iii) To prescribe the terms and provisions of each option granted (which need not be identical). (iv) To determine whether options granted shall be incentive stock options or non-qualified stock options. (v) To determine whether options granted shall be transferable without consideration to immediate family members or family trusts for the benefit of optionee's immediate family members. As used herein, "immediate family" means parents, spouses and children. (c) The Committee shall not have the authority to grant new options in exchange for the cancellation of stock options previously granted under the Plan or under any other stock option plan of the Corporation. 5. ELIGIBILITY Options may be granted only to regular salaried officers and key employees of the Corporation and its subsidiaries. The term "subsidiary" corporation shall mean any corporation in which the Corporation controls, directly or indirectly, fifty percent (50%) or more of the combined voting power of all classes of stock. A director of the Corporation shall not be eligible for the benefits of the Plan unless such person also is a regular salaried employee of the Corporation and/or of any subsidiary. 2 3 6. TERMS OF OPTION AND OPTION AGREEMENTS Each option shall be evidenced by a written Stock Option Agreement which shall expressly identify the options as incentive stock options or as non-qualified stock options, and be in such form and contain such provisions as the Committee shall from time to time deem appropriate; provided, however, that the grant of a non-qualified option pursuant to this Plan shall in no way be construed to be an alternative to the right of an employee to purchase stock pursuant to any incentive stock option heretofore or hereafter granted to an employee pursuant to any stock option plans now in existence or hereafter adopted by the Corporation. The terms of the option agreements need not be identical, but each option agreement shall include, by appropriate language, or be subject to, the substance of all of the applicable following provisions: (a) The purchase price under each option granted shall be as determined by the Committee but, in the case of incentive stock options, shall in no instance be less than 100% of fair market value on the date of grant. The fair market value on the date of grant shall be determined by the Committee; provided, however, that (i) if the Common Stock is admitted to quotation on the National Association of Securities Dealers Automated Quotation System on the date the option is granted, fair market value shall not be less than the average of the highest bid and lowest asked prices of the Common Stock on such System on such date or the last date preceding such date on which a sale was reported, or (ii) if the Common Stock is admitted to trading on a national securities exchange on the date the option is granted, fair market value shall not be less than the last sale price reported for the Common Stock on such exchange on such date or, if there was no sale on such date, the last date preceding such date on which a sale was reported. (b) The maximum term of any incentive stock option shall be ten years from the date it was granted. (c) The maximum term of any non-qualified stock option shall be ten years and one day from the date it was granted. (d) An option may not be exercised to any extent, either by the person to whom it was granted or by the grantee's transferee, or by any person after the grantee's death, unless the person to whom the option was granted has remained in the continuous employ of the Corporation, or of a subsidiary, for not less than six months from the date when the option was granted. Otherwise, each option shall be exercisable as determined by the Committee. (e) The Corporation, during the terms of options granted under the Plan, at all times will keep available the number of shares of stock required to satisfy such options. (f) The Corporation will seek to obtain from each regulatory commission or agency having jurisdiction such authority as may be required to issue and sell shares of stock to satisfy such options. Inability of the Corporation to obtain from any such regulatory commission or agency authority which counsel for the Corporation deems necessary for the lawful issuance and 3 4 sale of its stock to satisfy such options shall relieve the Corporation from any liability for failure to issue and sell stock to satisfy such options pending the time when such authority is obtained or is obtainable. (g) Neither a person to whom an option is granted nor his or her transferee, legal representative, heir, legatee, or distributee, shall be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares subject to such option unless and until he or she has exercised his or her option pursuant to the terms thereof. (h) In order to be exempt under Section 16 of the Exchange Act and qualify as an incentive stock option, the option may not be transferable except by will or by the laws of descent or distribution, and during the lifetime of the person to whom the option is granted he or she alone may exercise it. (i) An option shall terminate and may not be exercised if the person to whom it is granted ceases to be continuously employed by the Corporation, or by a subsidiary of the Corporation, except (subject nevertheless to the last sentence of this subparagraph (i)): (1) if the grantee's continuous employment is terminated for any reason other than (i) retirement, (ii) permanent disability, or (iii) death, the grantee or the grantee's transferee may exercise the option to the extent that the grantee was entitled to exercise such option at the date of such termination at any time within a period of three (3) months following the date of such termination, or if the grantee shall die within the period of three (3) months following the date of such termination without having exercised such option, the option may be exercised within a period of one year following the grantee's death by the grantee's transferee or the person or persons to whom the grantee's rights under the option pass by will or by the laws of descent or distribution but only to the extent exercisable at the date of such termination; (2) if the grantee's continuous employment is terminated by (i) retirement, (ii) permanent disability, or (iii) death, the option may be exercised in accordance with its terms and conditions at any time within a period of five (5) years following the date of such termination by the grantee or the grantee's transferee, or in the event of the grantee's death, by the persons to whom the grantee's rights under the option shall pass by will or by the laws of descent or distribution; (3) if the grantee's continuous employment is terminated and within a period of ninety (90) days thereafter the grantee is recalled to the active payroll, the Committee may reinstate any portion of the option previously granted but not exercised. Nothing contained in this subparagraph (i) is intended to extend the stated term of the option and in no event may an option be exercised by anyone after the expiration of its stated term. (j) Option agreements evidencing incentive stock options shall contain such terms and provisions as may be necessary to render them incentive stock options pursuant to Section 422 of the Code and the income tax regulations thereunder, as the same or any successor statute or regulations may at the time be in effect. (k) Nothing in this Plan or in any option granted hereunder shall confer on any optionee any right to continue in the employ of the Corporation or any of its subsidiaries, or to 4 5 interfere in any way with the right of the Corporation or any of its subsidiaries to terminate his or her employment at any time. 7. TIME OF GRANTING OPTION The Committee shall determine the date on which options are granted under the Plan. All options granted must be approved at a meeting of the Committee by a majority of the members of the Committee. If an option agreement is not executed by an employee and returned to the Corporation on or prior to ninety (90) days after the date the option is granted (or such earlier date as the Committee may specify), such option shall terminate. 8. ADJUSTMENT IN NUMBER OF SHARES AND IN OPTION PRICE In the event there is any change in the shares of the Corporation through the declaration of stock dividends or a stock split-up, or through recapitalization resulting in share split-ups, or combinations or exchanges of shares, or otherwise, the number of shares available for option, as well as the shares subject to any option and the option price thereof, shall be appropriately adjusted by the Committee. 9. PAYMENT OF PURCHASE PRICE AND WITHHOLDING TAXES (a) The purchase price for all shares purchased pursuant to options exercised must be either paid in full in cash, or paid in full, with the consent of the Committee, in Common Stock of the Corporation valued at fair market value on the date of exercise or a combination of cash and Common Stock. Fair market value on the date of exercise shall be determined in the same manner as provided in Section 6(a) hereof. (b) The Committee may permit the payment of all or part of the applicable withholding taxes due upon exercise of an option, up to the highest marginal rates then in effect, by the withholding of shares otherwise issuable upon exercise of the option. Option shares withheld in payment of such taxes shall be valued at the fair market value of the Corporation's Common Stock on the date of exercise as provided in Section 6(a) hereof. 10. CHANGE IN CONTROL In the event the Corporation is merged into or acquired by another entity in a transaction involving a change in control, the Committee shall have the complete authority and discretion, but not the obligation, to accelerate the vesting of any outstanding options granted hereunder. The Committee may also ask the Board of Directors to negotiate, as part of any agreement involving a sale or merger of the Corporation, a sale of substantially all the Corporation's assets or similar transaction, terms providing protection for employees holding options under the Plan. 5 6 11. AMENDMENT, SUSPENSION, OR TERMINATION OF THE PLAN (a) The Board may amend, modify, suspend or terminate the Plan for the purpose of meeting or addressing any changes in legal requirements or for any other purpose permitted by law. The Board will seek stockholder approval of an amendment if determined to be required by or advisable under regulations of the Securities and Exchange Commission or the Internal Revenue Service, the rules of any stock exchange on which the Corporation's stock is listed, or other applicable law or regulation. (b) The Plan shall continue in effect until all shares available for issuance under the Plan have been issued. An option may not be granted while the Plan is suspended or after it is terminated. (c) The rights and obligations under any options granted while the Plan is in effect shall not be altered or impaired by amendment, suspension or termination of the Plan, except with the consent of the person to whom the option was granted or the grantee's transferee or the person to whom rights under an option shall have passed by will or by the laws of descent and distribution. 12. EFFECTIVE DATE The Plan was originally established effective on March 10, 1997, as a result of the reorganization of the three Fairchild divisions of National Semiconductor Corporation (the Discrete, Logic and Memory divisions) and was approval by the stockholders of the Corporation within twelve (12) months after said date. This amendment and complete restatement of the Plan is effective January 5, 1998 (as further amended on May 14, 1999) and applies to any option grant made on or after that date. 6 EX-5.1 3 OPINION OF PIERCE ATWOOD 1 Exhibits 5.1 and 23.1 June 1, 1999 FSC Semiconductor Corporation 333 Western Avenue South Portland, Maine 04106 Re: Stock Option Plan Dear Sirs: We have assisted in the preparation of Amendment No. 1 to its Registration Statement on Form S-8 (File No. 333-35347) (as so amended, the "Registration Statement") to be filed with the Securities and Exchange Commission relating to 6,084,000 shares of Class A Common Stock, par value $.01 per share (the "Shares"), of FSC Semiconductor Corporation, a Delaware corporation (the "Company"), issuable upon exercise of options granted or to be granted under the Company's Stock Option Plan (the "Plan"). We have examined and relied upon the Company's Certificate of Incorporation and Bylaws and originals, or copies certified to our satisfaction, of all pertinent records of the meetings of the directors and stockholders of the Company, the Registration Statement and such other documents relating to the Company as we have deemed relevant for the purposes of this opinion. In our examination of the foregoing documents, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as certified or photostatic copies. Based on and subject to the foregoing, we are of the opinion that the Company has duly authorized for issuance the Shares covered by the Registration Statement issued or to be issued under the Plan, as described in the Registration Statement, and the Shares, when issued in accordance with the terms of the Plan, will be legally issued, fully paid and non-assessable. We hereby consent to the filing of this opinion with the Securities and Exchange Commission in connection with the Registration Statement. Very truly yours, Pierce Atwood EX-23.2 4 CONSENT OF KPMG LLP 1 Exhibit 23.2 The Board of Directors FSC Semiconductor Corporation: We consent to the inclusion of our reports dated June 16, 1998, except as to Note 19, which is as of July 20, 1998, with respect to the consolidated balance sheets of FSC Semiconductor Corporation as of May 31, 1998 and May 25, 1997, and the related consolidated and combined statements of operations and stockholders' equity (deficit) for each of the years in the three-year period ended May 31, 1998, and the related consolidated statement of cash flows for the year ended May 31, 1998, and the related schedule, which reports are incorporated by reference in this Registration Statement on Form S-8. As discussed in Note 18 in the financial statements, the Company changed its method of accounting for business process reengineering costs in 1998 to adopt the provisions of the Emerging Issues Task Force Issue 97-13, "Accounting for Business Process Reengineering Costs." KPMG LLP Boston, Massachusetts May 27, 1999 -----END PRIVACY-ENHANCED MESSAGE-----