Conditions of the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the Issuers herein, to the accuracy, in all material respects, of the statements of officers of the Issuers made pursuant to the provisions hereof, to the performance, in all material respects, by the Issuers of its obligations hereunder and to the following additional conditions precedent: (a) The Purchasers shall have received a letter, dated the date of this Agreement, of Ernst & Young LLP confirming that they are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder ("Rules and Regulations") and to the effect that: (i) in their opinion the financial statements examined by them and included in the Offering Documents comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules and Regulations; (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that: (A) at a specified date not more than three business days prior to the date of this Agreement, there was any change in the capital stock or any increase in short-term indebtedness or long-term debt of the Company and its consolidated subsidiaries or, at such date, there was any decrease in consolidated net current assets or net assets, as compared with amounts shown on the latest balance sheet included in the Offering Documents; or (B) for the period from the closing date of the latest income statement included in the Offering Documents to a specified date not more than three business days prior to the date of this Agreement, there were any decreases, as compared with the corresponding period of the previous year, in consolidated net sales, net operating income consolidated, net income or in the ratio of earnings to fixed charges; except in all cases set forth in clauses (A) and (B) above for changes, increases or decreases which are described in such letter; (iii) in their opinion, with respect to the unaudited pro forma condensed consolidated balance sheet as of July 2, 1999, and the unaudited pro forma condensed consolidated statements of income for the year ended July 2, 1999 included in the Offering Documents, (A) the assumptions of each of the Issuer's management provide a reasonable basis for presenting the significant effects directly attributable to the transactions described in the introductory information to these unaudited pro forma condensed consolidated financial statements, (B) the related pro forma adjustments give appropriate effect to those assumptions and (C) the pro forma column reflects the proper application of those adjustments to the historical financial statement amounts in these pro forma condensed consolidated financial statements; and (iv) on the basis of a reading of the pro forma condensed consolidated financial statements referred to in 6(a)(iii) above and inquiries of officials of the Issuers who have responsibility for financial and accounting matters about whether these unaudited pro forma condensed consolidated financial statements comply as to form in all material respects with the applicable accounting requirements of rule 11-02 of Regulation S-X, nothing came to their attention that caused them to believe that these unaudited pro forma condensed consolidated financial statements included in the Offering Documents do not comply as to form in all material respects with the applicable accounting requirements of rule 11-02 of Regulation S-X, (v) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Documents to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Issuers and its subsidiaries subject to the internal controls of the Issuers' accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. (b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii)(A) any change, or any development or event involving a prospective change, in the business, assets, operations, properties, financial condition, liabilities or prospects of the Issuers and their subsidiaries taken as a whole which, in the reasonable judgment of CSFBC, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (B) any downgrading in the rating of any debt securities of either Issuer by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act) or any public announcement that any such organization has under surveillance or review its rating of any debt securities of either Issuer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (C) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of either Issuer on any exchange or in the over-the-counter market; (D) any banking moratorium declared by U.S. Federal or New York authorities; or (E) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of CSFBC, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities. (c) Concurrently with or prior to the issue and sale of the Offered Securities by the Issuers, the Transactions shall be consummated on terms that conform in all material respects to the description thereof in the Offering Documents and the Initial Purchasers shall have received true and correct copies of all documents pertaining thereto and evidence reasonably satisfactory to the Initial Purchasers of the consummation thereof. (d) Concurrently with or prior to the issuance and sale of the Offered Securities by the Issuers, the Company and Intersil Holding shall have entered into the Credit Agreement and the initial borrowings thereunder shall have occurred. The Initial Purchasers shall have received conformed counterparts thereof and all other documents and agreements entered into and received thereunder in connection with the closing of the Credit Agreement. There shall exist at and as of the Closing Date (after giving effect to the transactions contemplated by this Agreement and the Transactions) no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under the Credit Agreement or any other Transaction Document. (e) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Dechert Price & ▇▇▇▇▇▇, counsel for the Issuers and the Guarantors, to the effect that: (i) each of the Issuers has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with corporate power and corporate authority to own its properties and conduct its business as described in the Offering Circular; and each of the Issuers is duly qualified to do business as a foreign corporation and is in good standing in the jurisdictions listed in such opinion; (ii) each of the Company's domestic subsidiaries has been duly incorporated or formed and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, with corporate or limited liability company power and authority to own its properties and conduct its business as described in the Offering Circular; and each is duly qualified to do business as a foreign corporation and is in good standing in the jurisdictions listed in such opinion; (iii) all of the issued and outstanding capital stock of the Issuers and the Subsidiary Guarantors that are corporations has been duly authorized and validly issued and is fully paid and nonassessable and conforms in all material respects to the description thereof in the Offering Circular; (iv) insofar as is known to such counsel, to the extent the Offering Circular contains summaries of statutes, legal proceedings or agreements to which any of Intersil Holding, the Company or any of its subsidiaries is a party (or provisions thereof) referred to therein, such statements are true and correct in all material respects; (v) the Issuers and the Subsidiary Guarantors have duly authorized the execution, delivery and performance of the Offered Securities, Operative Documents and the consummation of the transactions contemplated thereby; (vi) the Operative Documents constitute valid and legally binding obligations of the Issuers and the Subsidiary Guarantors, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, general equitable principles and the discretion of courts in granting equitable remedies and except that any rights to indemnity and contribution may be limited or prohibited by Federal and state securities laws and public policy considerations; the Offered Securities have been duly authorized and executed by the Issuers and conform in all material respects to the description thereof in the Offering Circular; (vii) each of the Guaranties has been duly authorized and executed by the respective Guarantor, and, assuming the Notes have been duly authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, the Offered Notes constitute valid and legally binding obligations of the Company and each of the Guarantors, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, general equitable principles and the discretion of the courts in granting equitable remedies; (viii) the Warrants delivered on the Closing Date (as defined herein) are convertible into shares of Class A common stock of Intersil Holding in accordance with the term of the Warrant Agreement; the shares of Class A common stock of Intersil Holding initially issuable upon exercise of the Warrants have been duly authorized and reserved for issuance upon such exercise and, when issued upon such exercise, will be validly issued, fully paid and nonassessable; the outstanding shares of Class A common stock of Intersil Holding have been duly authorized and validly issued, are fully paid and nonassessable and conform in all material respects to the description thereof contained in the Offering Circular; and the stockholders of Intersil Holding have no preemptive rights with respect to the Warrants or the shares of Class A common stock, except as disclosed in the Offering Circular; (ix) assuming the accuracy of the representation and warranty of the Issuers and the Subsidiary Guarantors contained in Section 2(y) of this Agreement and the accuracy of the representations and warranties of the Initial Purchasers contained in Section 4 of this Agreement, no consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the performance by any of the Issuers or Subsidiary Guarantors of its obligations under the Operative Documents or in connection with the issuance and sale of the Offered Notes Securities by the Issuers and the issuance of the Guaranties by the Guarantors, except such as have been obtained or made or as may be required under the Securities Act or the Exchange Act and the rules and regulations of the Commission thereunder with respect to the Registration Rights Agreement and the transactions contemplated thereunder and such as may be required by state securities or blue sky laws in connection with the offer and sale of the Offered Securities; (x) the execution, delivery and performance, of the Operative Documents and the Transaction Documents by Sterling, Intersil Holding, the Company and the Subsidiary Guarantors (to the extent a party thereto) and the issuance and sale of the Offered Securities by the Issuers and compliance with the terms and provisions of the foregoing will not (A) result in a breach or violation of any of the terms and provisions of (1) any material New York or Federal statute, rule or regulation applicable to any of Intersil Holding, the Company or any Subsidiary Guarantor or (2) any order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over any of Intersil Holding, the Company, any Subsidiary Guarantor or any of their properties and which order is known to such counsel, or, (B) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any Transaction Documents listed in such opinion, or (C) result in a violation of the charter or by-laws of Intersil Holding, the Company or any Subsidiary Guarantor; (xi) other than those already obtained or applied for, no consent, approval, authorization or order of, or filing with, any New York or Federal government agency or body or any New York or Federal court is required in connection with the consummation of the transactions contemplated by the Transaction Documents by ▇▇▇▇▇▇▇▇, the Issuers or any of the Subsidiary Guarantors except for such consents, approvals, authorizations, orders or filings the failure of which to obtain or make would not result in a Material Adverse Effect; (xii) each of the Transaction Documents has been duly authorized by each of Sterling, the Issuers and the Subsidiary Guarantors (to the extent a party thereto) and will, when duly executed, constitute a valid and legally binding obligation of each of Sterling, the Issuers and the Subsidiary Guarantors (to the extent a party thereto) and is enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally, general equitable principles and the discretion of the courts in granting equitable remedies; (xiii) except as disclosed in the Offering Documents, insofar as is known to such counsel, there are no actions, suits or proceedings threatened or pending against Intersil Holding, the Company or any of its subsidiaries or any of their respective properties that if determined adversely to Intersil Holding, the Company or any such subsidiary would be reasonably likely to have a Material Adverse Effect; (xiv) neither of the Issuers nor any of the Subsidiary Guarantors is an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or a closed-end investment company required to be registered, but not registered, thereunder; and neither of the Issuers nor any of the Subsidiary Guarantors is or, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Documents
Appears in 1 contract
Sources: Purchase Agreement (Intersil Corp)
Conditions of the Obligations of the Initial Purchasers. The obligations of the several Initial Purchasers to purchase and pay for the Offered Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties on the part of the Issuers hereinCompany herein (as though made on such Closing Date), to the accuracy, in all material respects, accuracy of the statements of Company officers of the Issuers made pursuant to the provisions hereof, to the performance, in all material respects, performance by the Issuers Company of its obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers Representatives shall have received a letter, addressed to the Initial Purchasers, dated the date of this Agreementhereof, of Ernst & Young PricewaterhouseCoopers LLP confirming that they are an independent registered public accountants accounting firm within the meaning of the Securities Act and the applicable published rules and regulations thereunder ("Rules and Regulations") Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements examined incorporated by them and included reference in the Offering Documents Memorandum comply as to form in all material respects with the applicable accounting requirements sections of the Securities Act and the related published Rules and RegulationsRegulation S-X;
(ii) on they have read the basis of a reading minutes of the latest available interim financial statements 2010 meetings of the Companystockholders, inquiries the Board of Directors, Nominating and Corporate Governance Committee, Audit Committee, and Special Committee of the Board of Directors of the Company and its subsidiaries as set forth in the minute books at March 24, 2010, and have been advised by the officials of the Company that the minutes of all such meetings through that date were set forth therein (except for such minutes as set forth therein which were not approved in final form, for which they received drafts, and which drafts officials of the Company represented include all substantive actions taken at such meeting), and have carried out other procedures to March 24, 2010 (their work not having extended to March 25, 2010), but the foregoing procedures do not constitute an audit made in accordance with standards of the PCAOB and would not necessarily reveal matters of significance with respect to the comments in the following paragraph (iv), so they make no representations as to the sufficiency of the foregoing procedures for the purposes of those receiving the letter;
(iii) they have inquired of certain officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
whether (A) at a specified date not more than three business days prior to the date of this AgreementMarch 24, 2010 there was any change in the capital stock or any increase in short-term indebtedness or long-term debt of the Company and its subsidiaries consolidated subsidiaries or, at such date, there was any decrease in consolidated net current assets or net assets, as compared with amounts shown on in the latest January 3, 2010 consolidated balance sheet included incorporated by reference in the Offering Documents; or
Memorandum, or (B) for the period from the closing date of the latest income statement included in the Offering Documents January 4, 2010 to a specified date not more than three business days prior to the date of this AgreementMarch 24, 2010, there were any decreases, as compared with the corresponding period of in the previous preceding year, in consolidated net sales, net operating income consolidated, net income or in the ratio of earnings to fixed charges; except in all cases set forth in clauses (A) and (B) above for changes, increases or decreases which are described in such letter;
(iii) in their opinion, with respect to the unaudited pro forma condensed consolidated balance sheet as of July 2, 1999total revenue, and the unaudited pro forma condensed consolidated statements of income for the year ended July 2, 1999 included in the Offering Documents, (A) the assumptions of each of the Issuer's management provide a reasonable basis for presenting the significant effects directly attributable to the transactions described in the introductory information to these unaudited pro forma condensed consolidated financial statements, (B) the related pro forma adjustments give appropriate effect to those assumptions and (C) the pro forma column reflects the proper application of those adjustments to the historical financial statement amounts in these pro forma condensed consolidated financial statements; and
(iv) on the basis of a these inquiries and their reading of the pro forma condensed consolidated financial statements referred to minutes as described in 6(a)(iiiparagraph (iii) above and inquiries of officials of the Issuers who have responsibility for financial and accounting matters about whether these unaudited pro forma condensed consolidated financial statements comply as to form in all material respects with the applicable accounting requirements of rule 11-02 of Regulation S-Xabove, nothing came to their attention that caused them to believe that these unaudited pro forma condensed consolidated financial statements included there was any such change, increase or decrease, except in all instances for changes, increases or decreases, that the Offering Documents do not comply as to form in all material respects with the applicable accounting requirements of rule 11-02 of Regulation S-X,
Memorandum discloses have occurred or may occur, except that (vC) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Documents capital stock increased by approximately $371,000 due to the extent that such dollar amountsexercise of employee stock options and vesting of restricted stock units, percentages and other financial information are derived from (D) the general accounting records carrying amount of the Issuers and its subsidiaries subject long-term debt increased by $5,436,000 due to the internal controls accretion of the Issuers' accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letterdebt discount.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the judgment of a majority in interest of the Initial Purchasers including the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that as would, in the reasonable judgment of CSFBCa majority in interest of the Initial Purchasers including the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or ; (ii)(Aiv) any changematerial suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any development setting of minimum or event maximum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving a prospective changethe United States or the Philippines, any declaration of war by Congress or any other national or international calamity or emergency if, in the business, assets, operations, properties, financial condition, liabilities or prospects judgment of a majority in interest of the Issuers and their subsidiaries taken as a whole whichInitial Purchasers including the Representatives, in the reasonable judgment effect of CSFBCany such attack, is material and adverse and outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (B) any downgrading in the rating of any debt securities of either Issuer by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act) or any public announcement that any such organization has under surveillance or review its rating of any debt securities of either Issuer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (C) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of either Issuer on any exchange or in the over-the-counter market; (D) any banking moratorium declared by U.S. Federal or New York authorities; or (E) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of CSFBC, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or sale of and payment for the Offered Securities.
(c) Concurrently with or prior to the issue and sale of the Offered Securities by the Issuers, the Transactions shall be consummated on terms that conform in all material respects to the description thereof in the Offering Documents and the Initial Purchasers shall have received true and correct copies of all documents pertaining thereto and evidence reasonably satisfactory to the Initial Purchasers of the consummation thereof.
(d) Concurrently with or prior to the issuance and sale of the Offered Securities by the Issuers, the Company and Intersil Holding shall have entered into the Credit Agreement and the initial borrowings thereunder shall have occurred. The Initial Purchasers shall have received conformed counterparts thereof and all other documents and agreements entered into and received thereunder in connection with the closing of the Credit Agreement. There shall exist at and as of the Closing Date (after giving effect to the transactions contemplated by this Agreement and the Transactions) no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under the Credit Agreement or any other Transaction Document.
(e) The Initial Purchasers Representatives shall have received an opinion, dated the such Closing Date, of Dechert Price ▇▇▇▇▇ Day, counsel for the Company, as to the matters described in Annex B.
(d) The Representatives shall have received (i) an opinion of Mourant du Feu & Jeune, Cayman Islands counsel for the Company, substantially in the form attached as Annex C and (ii) an opinion of ▇▇▇▇▇▇▇ Boss ▇▇▇▇▇ ▇▇, Swiss counsel for the Company, as to the matters described in Annex D.
(e) The Representatives shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Issuers and the Guarantors, to the effect that:
(i) each of the Issuers has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with corporate power and corporate authority to own its properties and conduct its business as described in the Offering Circular; and each of the Issuers is duly qualified to do business as a foreign corporation and is in good standing in the jurisdictions listed in such opinion;
(ii) each of the Company's domestic subsidiaries has been duly incorporated or formed and is an existing corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation or formation, with corporate or limited liability company power and authority to own its properties and conduct its business as described in the Offering Circular; and each is duly qualified to do business as a foreign corporation and is in good standing in the jurisdictions listed in such opinion;
(iii) all of the issued and outstanding capital stock of the Issuers and the Subsidiary Guarantors that are corporations has been duly authorized and validly issued and is fully paid and nonassessable and conforms in all material respects to the description thereof in the Offering Circular;
(iv) insofar as is known to such counsel, to the extent the Offering Circular contains summaries of statutes, legal proceedings or agreements to which any of Intersil Holding, the Company or any of its subsidiaries is a party (or provisions thereof) referred to thereinInitial Purchasers, such statements are true and correct in all material respects;
(v) the Issuers and the Subsidiary Guarantors have duly authorized the executionopinion or opinions, delivery and performance of the Offered Securitiesdated such Closing Date, Operative Documents and the consummation of the transactions contemplated thereby;
(vi) the Operative Documents constitute valid and legally binding obligations of the Issuers and the Subsidiary Guarantors, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, general equitable principles and the discretion of courts in granting equitable remedies and except that any rights to indemnity and contribution may be limited or prohibited by Federal and state securities laws and public policy considerations; the Offered Securities have been duly authorized and executed by the Issuers and conform in all material respects to the description thereof in the Offering Circular;
(vii) each of the Guaranties has been duly authorized and executed by the respective Guarantor, and, assuming the Notes have been duly authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, the Offered Notes constitute valid and legally binding obligations of the Company and each of the Guarantors, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, general equitable principles and the discretion of the courts in granting equitable remedies;
(viii) the Warrants delivered on the Closing Date (as defined herein) are convertible into shares of Class A common stock of Intersil Holding in accordance with the term of the Warrant Agreement; the shares of Class A common stock of Intersil Holding initially issuable upon exercise of the Warrants have been duly authorized and reserved for issuance upon such exercise and, when issued upon such exercise, will be validly issued, fully paid and nonassessable; the outstanding shares of Class A common stock of Intersil Holding have been duly authorized and validly issued, are fully paid and nonassessable and conform in all material respects to the description thereof contained in the Offering Circular; and the stockholders of Intersil Holding have no preemptive rights with respect to the Warrants or incorporation of the shares Company, the validity of Class A common stockthe Offered Securities delivered on such Closing Date, except and other related matters as disclosed in the Offering Circular;Representatives may require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(ixf) assuming the accuracy The Representatives shall have received a certificate, dated such Closing Date, of the representation Chief Executive Officer or any Vice President and warranty a principal financial or accounting officer of the Issuers and Company in which such officers, to the Subsidiary Guarantors contained in Section 2(y) best of this Agreement and the accuracy of their knowledge after reasonable investigation, shall state that: the representations and warranties of the Initial Purchasers contained Company in Section 4 this Agreement are true and correct; the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date; and, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate.
(g) The Representatives shall have received a letter, dated such Closing Date, of PricewaterhouseCoopers LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to such Closing Date for the purposes of this subsection.
(h) On or prior to the date of this Agreement, no consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the performance by any of Representatives shall have received lock-up letters substantially in the Issuers or Subsidiary Guarantors of its obligations under form attached as Annex A from the Operative Documents or persons listed in connection with the issuance and sale of the Offered Notes Securities by the Issuers and the issuance of the Guaranties by the GuarantorsSchedule C, except such as have been obtained or made or as may be required under the Securities Act or the Exchange Act and the rules and regulations of the Commission thereunder with respect to the Registration Rights Agreement and the transactions contemplated thereunder and such as may be required agreed upon by state securities or blue sky laws in connection with the offer and sale of the Offered Securities;
(x) the execution, delivery and performance, of the Operative Documents and the Transaction Documents by Sterling, Intersil Holding, the Company and the Subsidiary Guarantors (Representatives prior to the extent a party thereto) date of this Agreement. The Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the issuance and sale Representatives reasonably requests. The Representatives may in its sole discretion waive on behalf of the Offered Securities by the Issuers and Initial Purchasers compliance with any conditions to the terms and provisions obligations of the foregoing will not (A) result Initial Purchasers hereunder, whether in a breach respect of an Optional Closing Date or violation of any of the terms and provisions of (1) any material New York or Federal statute, rule or regulation applicable to any of Intersil Holding, the Company or any Subsidiary Guarantor or (2) any order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over any of Intersil Holding, the Company, any Subsidiary Guarantor or any of their properties and which order is known to such counsel, or, (B) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any Transaction Documents listed in such opinion, or (C) result in a violation of the charter or by-laws of Intersil Holding, the Company or any Subsidiary Guarantor;
(xi) other than those already obtained or applied for, no consent, approval, authorization or order of, or filing with, any New York or Federal government agency or body or any New York or Federal court is required in connection with the consummation of the transactions contemplated by the Transaction Documents by ▇▇▇▇▇▇▇▇, the Issuers or any of the Subsidiary Guarantors except for such consents, approvals, authorizations, orders or filings the failure of which to obtain or make would not result in a Material Adverse Effect;
(xii) each of the Transaction Documents has been duly authorized by each of Sterling, the Issuers and the Subsidiary Guarantors (to the extent a party thereto) and will, when duly executed, constitute a valid and legally binding obligation of each of Sterling, the Issuers and the Subsidiary Guarantors (to the extent a party thereto) and is enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally, general equitable principles and the discretion of the courts in granting equitable remedies;
(xiii) except as disclosed in the Offering Documents, insofar as is known to such counsel, there are no actions, suits or proceedings threatened or pending against Intersil Holding, the Company or any of its subsidiaries or any of their respective properties that if determined adversely to Intersil Holding, the Company or any such subsidiary would be reasonably likely to have a Material Adverse Effect;
(xiv) neither of the Issuers nor any of the Subsidiary Guarantors is an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, or a closed-end investment company required to be registered, but not registered, thereunder; and neither of the Issuers nor any of the Subsidiary Guarantors is or, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Offering Documentsotherwise.
Appears in 1 contract
Sources: Purchase Agreement (Sunpower Corp)
Conditions of the Obligations of the Initial Purchasers. The obligations of the several Initial Purchasers to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the Issuers hereinCompany herein at the Execution Time, the Closing Date and any settlement date pursuant to Section 4 hereof, to the accuracy, in all material respects, accuracy of the statements of Company officers of the Issuers made pursuant to the provisions hereof, to the performance, in all material respects, performance by the Issuers Company of its obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers On or prior to the date of this Agreement, the Representatives shall have received a letter, dated the date of this Agreementdelivery thereof, of Ernst & Young LLP Young, LLP, confirming that they are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder ("Rules and Regulations") Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and any schedules and any summary of earnings examined by them and included in the Offering Documents Memorandum comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 71, Interim Financial Information, on any unaudited financial statements included in the Offering Memorandum;
(iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements, if any, and any summary of earnings included in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations or any material modifications should be made to such unaudited financial statements and summary of earnings for them to be in conformity with generally accepted accounting principles;
(B) if any unaudited "capsule" information is contained in the Offering Memorandum, the unaudited consolidated net sales, net operating income, net income and net income per share amounts or other amounts constituting such "capsule" information and described in such letter do not agree with the corresponding amounts set forth in the unaudited consolidated financial statements or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited statements of income;
(C) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than three business days prior to the date of this Agreementthe such letter, there was any change in the capital stock or any increase in short-term indebtedness or long-term debt of the Company and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such dateaccountants, there was any decrease in consolidated net current assets or net assets, as compared with amounts shown on the latest balance sheet included in the Offering DocumentsMemorandum; or
(BD) for the period from the closing date of the latest income statement included in the Offering Documents to a specified date not more than three business days prior Memorandum to the closing date of this Agreement, the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous yearyear and with the period of corresponding length ended the date of the latest income statement included in the Offering Memorandum, in consolidated net sales, net operating income consolidated, or net income or in the ratio of earnings to fixed charges; except in all cases set forth in clauses (AC) and (BD) above for changes, increases or decreases which the Offering Memorandum discloses have occurred or may occur or which are described in such letter;
(iii) in their opinion, with respect to the unaudited pro forma condensed consolidated balance sheet as of July 2, 1999, and the unaudited pro forma condensed consolidated statements of income for the year ended July 2, 1999 included in the Offering Documents, (A) the assumptions of each of the Issuer's management provide a reasonable basis for presenting the significant effects directly attributable to the transactions described in the introductory information to these unaudited pro forma condensed consolidated financial statements, (B) the related pro forma adjustments give appropriate effect to those assumptions and (C) the pro forma column reflects the proper application of those adjustments to the historical financial statement amounts in these pro forma condensed consolidated financial statements; and
(iv) on the basis of a reading of the pro forma condensed consolidated financial statements referred to in 6(a)(iii) above and inquiries of officials of the Issuers who have responsibility for financial and accounting matters about whether these unaudited pro forma condensed consolidated financial statements comply as to form in all material respects with the applicable accounting requirements of rule 11-02 of Regulation S-X, nothing came to their attention that caused them to believe that these unaudited pro forma condensed consolidated financial statements included in the Offering Documents do not comply as to form in all material respects with the applicable accounting requirements of rule 11-02 of Regulation S-X,
(v) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Offering Documents Memorandum (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Issuers Company and its subsidiaries subject to the internal controls of the Issuers' Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. All financial statements and schedules included in material incorporated by reference into the Offering Memorandum shall be deemed included in the Offering Memorandum for purposes of this subsection.
(b) Subsequent to the execution and delivery of this AgreementExecution Time, there shall not have occurred (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls that would, in the reasonable judgment of CSFBC, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market, or (ii)(A) any change, or any development or event involving a prospective change, in the condition (financial or other), business, assets, operations, properties, financial condition, liabilities properties or prospects results of operations of the Issuers Company and their its subsidiaries taken as a whole one enterprise which, in the reasonable judgment of CSFBCa majority in interest of the Initial Purchasers including any Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities; (Bii) any downgrading in the rating of any debt securities of either Issuer the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act) ), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of either Issuer the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (Ciii) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of either Issuer the Company on any exchange or in the over-the-counter market; (Div) any banking moratorium declared by U.S. Federal or New York authoritiesauthorities and any major disruption of settlements of securities or clearance services in the United States; or (Ev) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of CSFBCa majority in interest of the Initial Purchasers, including the Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities.
(c) Concurrently with or prior to the issue and sale of the Offered Securities by the Issuers, the Transactions shall be consummated on terms that conform in all material respects to the description thereof in the Offering Documents and the Initial Purchasers shall have received true and correct copies of all documents pertaining thereto and evidence reasonably satisfactory to the Initial Purchasers of the consummation thereof.
(d) Concurrently with or prior to the issuance and sale of the Offered Securities by the Issuers, the Company and Intersil Holding shall have entered into the Credit Agreement and the initial borrowings thereunder shall have occurred. The Initial Purchasers shall have received conformed counterparts thereof and all other documents and agreements entered into and received thereunder in connection with the closing of the Credit Agreement. There shall exist at and as of the Closing Date (after giving effect to the transactions contemplated by this Agreement and the Transactions) no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under the Credit Agreement or any other Transaction Document.
(e) The Initial Purchasers Representatives shall have received an opinion, dated the Closing Date, of Dechert Price & ▇▇▇▇▇▇Coudert Brothers LLP, counsel for the Issuers and the GuarantorsCompany, to the effect that:
(i) each of the Issuers The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with corporate power and corporate authority to own its properties and conduct its business as described in the Offering Circular; and each of the Issuers is duly qualified to do business as a foreign corporation and is in good standing in the jurisdictions listed in such opinionMemorandum;
(ii) each Each of the Company's domestic subsidiaries ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. and Grolier Incorporated has been duly incorporated or formed and is an validly existing as a corporation or limited liability company in good standing under the laws of its state of incorporation; and all of the jurisdiction issued shares of its incorporation or formationcapital stock of each such subsidiary have been duly and validly authorized and issued, with corporate or limited liability company power are fully paid and authority to own its properties non-assessable and conduct its business (except for directors' qualifying shares and except as described otherwise set forth in the Offering Circular; Memorandum) are owned directly or indirectly by the Company, free and each is duly qualified to do business as a foreign corporation and is in good standing in the jurisdictions listed in such opinionclear of all liens, encumbrances, equities or claims;
(iii) all of the issued and outstanding capital stock of the Issuers This Agreement and the Subsidiary Guarantors that are corporations has Registration Rights Agreement have been duly authorized authorized, executed and validly issued and is fully paid and nonassessable and conforms in all material respects to the description thereof in the Offering Circular;
(iv) insofar as is known to such counsel, to the extent the Offering Circular contains summaries of statutes, legal proceedings or agreements to which any of Intersil Holding, delivered by the Company or any of its subsidiaries is a party (or provisions thereof) referred to therein, such statements are true and correct in all material respects;
(v) the Issuers and the Subsidiary Guarantors have duly authorized the execution, delivery and performance of the Offered Securities, Operative Documents and the consummation of the transactions contemplated thereby;
(vi) the Operative Documents constitute Registration Rights Agreement constitutes a valid and legally binding obligations obligation of the Issuers and the Subsidiary GuarantorsCompany enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or and similar laws of general applicability relating to or affecting creditors' rights generallyand to general equity principles;
(iv) The Indenture under which the Securities are issued has been duly authorized, general equitable principles executed and delivered by the Company and constitute, and the discretion of courts in granting equitable remedies and except that any rights to indemnity and contribution may be limited or prohibited by Federal and state securities laws and public policy considerations; the Offered Securities have been duly authorized and when executed by the Issuers and conform in all material respects to the description thereof in the Offering Circular;
(vii) each of the Guaranties has been duly authorized and executed by the respective Guarantor, and, assuming the Notes have been duly authenticated in accordance with the terms provisions of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with Purchasers, will have been duly executed and delivered by the terms of this AgreementCompany and will constitute, the Offered Notes constitute valid and legally binding obligations of the Company and each of the Guarantorsenforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or and similar laws of general applicability relating to or affecting creditors' rights generally, and to general equitable principles equity principles; and the discretion of the courts in granting equitable remedies;
(viii) the Warrants delivered on the Closing Date (as defined herein) are convertible into shares of Class A common stock of Intersil Holding in accordance with the term of the Warrant Agreement; the shares of Class A common stock of Intersil Holding initially issuable upon exercise of the Warrants have been duly authorized and reserved for issuance upon such exercise and, when issued upon such exercise, will be validly issued, fully paid and nonassessable; the outstanding shares of Class A common stock of Intersil Holding have been duly authorized and validly issued, are fully paid and nonassessable and Securities conform in all material respects to the description thereof contained in the Offering Circular; and the stockholders of Intersil Holding have no preemptive rights with respect to the Warrants or the shares of Class A common stock, except as disclosed in the Offering CircularMemorandum;
(ixv) assuming the accuracy of the representation and warranty of the Issuers and the Subsidiary Guarantors contained in Section 2(y) of this Agreement and the accuracy of the representations and warranties of the Initial Purchasers contained in Section 4 of this Agreement, no consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the performance by any of the Issuers or Subsidiary Guarantors of its obligations under the Operative Documents or in connection with the issuance and sale of the Offered Notes Securities by the Issuers and the issuance of the Guaranties by the Guarantors, except such as have been obtained or made or as may be required under the Securities Act or the Exchange Act and the rules and regulations of the Commission thereunder with respect to the Registration Rights Agreement and the transactions contemplated thereunder and such as may be required by state securities or blue sky laws in connection with the offer and sale of the Offered Securities;
(x) the execution, delivery and performance, of the Operative Documents and the Transaction Documents by Sterling, Intersil Holding, the Company and the Subsidiary Guarantors (to the extent a party thereto) and the issuance and sale of the Offered Securities by the Issuers and compliance with the terms and provisions of the foregoing will not (A) result in a breach or violation of any of the terms and provisions of (1) any material New York or Federal statute, rule or regulation applicable to any of Intersil Holding, the Company or any Subsidiary Guarantor or (2) any order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over any of Intersil Holding, the Company, any Subsidiary Guarantor or any of their properties and which order is known to such counsel, or, (B) result in a breach or violation of any of the terms or provisions of, or constitute a default under, any Transaction Documents listed in such opinion, or (C) result in a violation of the charter or by-laws of Intersil Holding, the Company or any Subsidiary Guarantor;
(xi) other than those already obtained or applied for, no No consent, approval, authorization or order of, or filing with, any New York or Federal government United States federal governmental agency or body or any New York or Federal court is required in connection with for the consummation of the transactions contemplated by this Agreement, the Transaction Documents Registration Rights Agreement or the Indenture, as the case may be, in connection with the issuance or sale of the Securities by the Company, except such as will be obtained and made under the Act and the Trust Indenture Act and such as may be required under state securities laws;
(vi) The execution, delivery and performance of this Agreement, the Registration Rights Agreement and the Indenture and the issuance and sale of the Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any New York or United States Federal statute or the General Corporation Law of Delaware, any rule, regulation or order of any New York or United States Federal governmental agency or body or any court, having jurisdiction over the Company or any of its Material Subsidiaries or any of their properties, or any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument known to such counsel to which the Company or a Material Subsidiary is a party or by which the Company is bound or to which any of the properties of the Company or any of its Material Subsidiaries is subject, or the charter or by-laws of the Company, except for any breaches or violations that will not have a Material Adverse Effect; and the Company has full corporate power and authority to authorize, issue and sell the Securities as contemplated by this Agreement;
(vii) ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇. is the Issuers or any registered owner of the Subsidiary Guarantors except for such consents, approvals, authorizations, orders or filings the failure of which to obtain or make would not result in a Material Adverse Effect;
(xii) each of the Transaction Documents has been duly authorized by each of Sterling, the Issuers and the Subsidiary Guarantors (trademark "Scholastic"; to the extent a party thereto) and will, when duly executed, constitute a valid and legally binding obligation best knowledge of each of Sterling, the Issuers and the Subsidiary Guarantors (to the extent a party thereto) and is enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally, general equitable principles and the discretion of the courts in granting equitable remedies;
(xiii) except as disclosed in the Offering Documents, insofar as is known to such counsel, there are no actions, suits or proceedings threatened or pending against Intersil Holding, neither the Company or nor any of its subsidiaries Material Domestic Subsidiaries has received any notice of infringement of or any conflict with (or knows of their respective properties that if determined adversely to Intersil Holding, the Company or any such subsidiary infringement or conflict with) asserted rights of others with respect to such trademark, other than such infringements or conflicts that would be reasonably likely to not, individually or in the aggregate, have a Material Adverse Effect;
(xiv) neither of Effect on the Issuers nor any of the Subsidiary Guarantors is an open-end investment company, unit investment trust business conducted or face-amount certificate company that is or is required proposed to be registered under Section 8 of conducted by the Investment Company Act, or a closed-end investment company required to be registered, but not registered, thereunder; and neither of the Issuers nor any of the Subsidiary Guarantors is or, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof its Material Domestic Subsidiaries as described in the Offering DocumentsMemorandum;
(viii) The Company is not an "investment company" or an entity "controlled" by an "investment company", as such terms are defined in the Investment Company Act required to be registered as such; and
(ix) The descriptions in the Offering Memorandum of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown. In addition, such counsel shall state in such opinion that during the course of the preparation of the Offering Memorandum, they reviewed the Offering Memorandum, participated in conferences with representatives of the Company, its accountants and with representatives of and counsel for the Initial Purchasers, at which the contents of the Offering Memorandum and related matters were discussed, and advised the Company as to the requirements of the Act and the applicable published rules and regulations thereunder. Such counsel shall state that between the date of the Offering Memorandum and the time of delivery of their letter, they have participated in further conferences with representatives of the Company, its accountants and with representatives of the Initial Purchasers (and their counsel), at which the contents of certain portions of the Offering Memorandum and related matters were discussed, and they reviewed certificates of certain officers of the Company and letters from the Company's independent accountants. Although such counsel may state that they are not passing upon or assuming any responsibility for the accuracy, completeness or fairness of any of the statements made in the Offering Memorandum, on the basis of the information which they gained in the course of rendering the services referred to above, considered in light of such counsel's understanding of the applicable law and the experience such counsel has gained through such counsel's practice in this field, they advise the Initial Purchasers that nothing which has come to the attention of such counsel in the course of such review has caused them to believe that the Offering Memorandum contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, such counsel may state that they are not expressing any opinion or belief as to the financial statements or other financial or related statistical data contained in the Offering Memorandum or the material incorporated therein by reference. Such counsel may also rely on opinions of other counsel as to matters of law other than New York law, the Delaware General Corporation Law and the federal laws of the United States.
Appears in 1 contract
Sources: Purchase Agreement (Scholastic Corp)