Exhibit 1.01
14,000,000 SHARES
INTERSIL CORPORATION
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION,
▇▇▇▇▇▇ BROTHERS INC.,
DEUTSCHE BANK SECURITIES INC.,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.,
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION,
As Representatives of the Several Underwriters,
c/o CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Sterling Holding Company, LLC ("STERLING") and Citigroup
Mezzanine Partners, L.P. ("CMP," and together, the "SELLING STOCKHOLDERS")
propose to sell an aggregate of 14,000,000 outstanding shares of Class A Common
Stock (the "SECURITIES") of Intersil Corporation, a Delaware corporation (the
"COMPANY") (such 14,000,000 shares of Securities being hereinafter referred to
as the "FIRM SECURITIES"). The Selling Stockholders also propose severally to
sell to the Underwriters, at the option of the Underwriters, an aggregate of not
more than 2,100,000 additional shares of the Company's Securities (such
2,100,000 additional shares being hereinafter referred to as the "OPTIONAL
SECURITIES"). The Firm Securities and the Optional Securities are herein
collectively called the "OFFERED SECURITIES." The Company and each of the
Selling Stockholders hereby agree, severally and not jointly, with the several
Underwriters named in Schedule B hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-71686) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("COMMISSION") and either (i) has been
declared effective under the Securities Act of 1933 ("ACT") and is not
proposed to be amended or (ii) is proposed to be amended by amendment or
post-effective amendment. If such registration statement ("INITIAL
REGISTRATION STATEMENT") has been declared effective, either (A) an
additional registration statement ("ADDITIONAL REGISTRATION STATEMENT")
relating to the Offered Securities may have been filed with the Commission
pursuant to Rule 462(b) ("RULE 462(b)") under the Act and, if so filed,
has become effective upon filing pursuant to such Rule and the Offered
Securities all have been duly registered under the Act pursuant to the
initial registration statement and, if applicable, the additional
registration statement or (B) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to such Rule and upon such filing
the Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose
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to amend the initial registration statement or if an additional
registration statement has been filed and the Company does not propose to
amend it, and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to each
such registration statement has been declared effective by the Commission
or has become effective upon filing pursuant to Rule 462(c) ("RULE
462(c)") under the Act or, in the case of the additional registration
statement, Rule 462(b). For purposes of this Agreement, "EFFECTIVE TIME"
with respect to the initial registration statement or, if filed prior to
the execution and delivery of this Agreement, the additional registration
statement means (i) if the Company has advised the Representatives that it
does not propose to amend such registration statement, the date and time
as of which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (ii) if the Company has
advised the Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and time
as of which such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been filed
prior to the execution and delivery of this Agreement but the Company has
advised the Representatives that it proposes to file one, "EFFECTIVE TIME"
with respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
material incorporated by reference therein, including all information
contained or incorporated by reference in the additional registration
statement (if any) and deemed to be a part of the initial registration
statement as of the Effective Time of the additional registration
statement pursuant to the General Instructions of the Form on which it is
filed and including all information (if any) deemed to be a part of the
initial registration statement as of its Effective Time pursuant to Rule
430A(b) ("RULE 430A(b)") under the Act, is hereinafter referred to as the
"INITIAL REGISTRATION STATEMENT." The additional registration statement,
as amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including all
information (if any) deemed to be a part of the additional registration
statement as of its Effective Time pursuant to Rule 430A(b), is
hereinafter referred to as the "ADDITIONAL REGISTRATION STATEMENT." The
Initial Registration Statement and the Additional Registration Statement
are hereinafter referred to collectively as the "REGISTRATION STATEMENTS"
and individually as a "REGISTRATION STATEMENT." The form of prospectus
relating to the Offered Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under the
Act or (if no such filing is required) as included in a Registration
Statement, including all material incorporated by reference in such
prospectus, is hereinafter referred to as the "PROSPECTUS." No document
has been or will be prepared or distributed in reliance on Rule 434 under
the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the Act and the rules and regulations of the Commission ("RULES AND
REGULATIONS") and did not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all respects to the
requirements of the Act and the Rules and Regulations and did not include,
or will not include, any untrue statement of a material fact and did not
omit, or will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
(C), on the date of this Agreement, the Initial Registration Statement
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and, if the Effective Time of the Additional Registration Statement is
prior to the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required) at
the Effective Date of the Additional Registration Statement in which the
Prospectus is included, each Registration Statement and the Prospectus
will conform, in all respects to the requirements of the Act and the Rules
and Regulations, and neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration Statement,
the Initial Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a material
fact or will omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by either Selling Stockholder, or by any
Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information supplied by any
Underwriter is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except to the extent
that the failure to so qualify or be in good standing would not have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries,
taken as a whole (a "MATERIAL ADVERSE EFFECT"), and Schedule D contains a
complete list of all such jurisdictions in which the Company's ownership
or lease of property or the conduct of its business requires such
qualification.
(iv) Each subsidiary of the Company has been duly incorporated and
is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus; and each subsidiary of the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except to the extent that the
failure to so qualify or be in good standing would not have a Material
Adverse Effect; all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized and validly issued and
is fully paid and nonassessable; and the capital stock of each subsidiary
owned by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects, other than those liens granted pursuant
to the Credit Agreement dated August 13, 1999, among the Company, the
lenders party thereto, Credit Suisse First Boston, New York Branch, as the
administrative agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, as syndication agent and
▇▇▇▇▇▇ Guaranty Trust Company of New York, as documentation agent.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; and all
outstanding shares of capital stock of the Company are, and, when the
Offered Securities have been delivered and paid for in accordance with
this Agreement on each Closing Date (as defined below), such Offered
Securities will be, validly issued, fully paid and nonassessable and will
conform in all material respects to the description thereof contained in
the Prospectus.
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(vi) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection
with this offering.
(vii) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act, other than the Amended and Restated Registration
Rights Agreement (the "REGISTRATION RIGHTS AGREEMENT"), dated January 21,
2000, among the Company, Manatee Investment Corporation, Sterling, CMP and
the management investors named therein.
(viii) The Offered Securities have been approved for listing on The
Nasdaq Stock Market's National Market subject to notice of issuance.
(ix) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Securities, except
such as have been obtained and made under the Act or the Securities
Exchange Act of 1934 (the "EXCHANGE ACT") and the rules and regulations of
the Commission thereunder and such as may be required under state
securities or blue sky laws.
(x) The execution, delivery and performance of this Agreement, and
the consummation of the transactions herein contemplated will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court, domestic or, to the
knowledge of the Company, foreign, applicable to or having jurisdiction
over the Company or any subsidiary of the Company or any of their
properties, or any agreement or instrument to which the Company or any
such subsidiary is a party or by which the Company or any such subsidiary
is bound or to which any of the properties of the Company or any such
subsidiary is subject, and Schedule E contains a complete list of all
material agreements or instruments to which the Company or any such
subsidiary is a party or by which the Company or any such subsidiary is
bound or to which any of the properties of the Company or any such
subsidiary is subject, or the charter or by-laws of the Company or any
such subsidiary.
(xi) This Agreement has been duly authorized, executed and delivered
by the Company.
(xii) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and
good and valid title to all other properties and assets owned by them and
necessary to conduct the business now operated by them, in each case free
from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the Prospectus, the Company
and its subsidiaries hold any leased real or personal property necessary
to conduct the business now operated by them under valid and enforceable
leases with no exceptions that would materially interfere with the use
made or to be made thereof by them.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business
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now operated by them (subject to such qualifications as may be set forth
in the prospectus or except where the failure to so possess would not,
singularly or in the aggregate, have a Material Adverse Effect) and have
not received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(xiv) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(xv) Except as disclosed in the Prospectus, the Company and its
subsidiaries own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the
business now operated by them and, except as disclosed in the Prospectus,
have not received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
which to the actual knowledge of any such party is contaminated with any
substance that is subject to any environmental laws, is in receipt of any
written notice which asserts liability for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation, contamination,
liability or claim would individually or in the aggregate have a Material
Adverse Effect; and the Company is not aware of any pending investigation
which might lead to such a claim, except for any such claim that would not
have a Material Adverse Effect.
(xvii) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would be reasonably
likely to individually or in the aggregate have a Material Adverse Effect,
or would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no such
actions, suits or proceedings are, to the Company's knowledge, threatened.
(xviii) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of the
Company (including its predecessor) and its consolidated subsidiaries as
of the dates shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the United
States applied on a consistent basis and the schedules included in each
Registration Statement present fairly the information required to be
stated therein; and management believes the assumptions used in preparing
the pro forma financial statements, and the related notes thereto,
included in each Registration Statement and the Prospectus provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the related
pro forma adjustments give appropriate effect to those assumptions, and
the pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
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(xix) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus 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, and, since the date of the most recent
audited financial statements of the Company there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(xx) The Company is not and, after giving effect to the offering and
sale of the Offered Securities as described in the Prospectus, will not be
an "investment company" as defined in the Investment Company Act of 1940.
(xxi) The Company has taken all action reasonably necessary to
enable the Selling Stockholders to deliver and sell the Offered Securities
to the Underwriters as contemplated by this Agreement.
(xxii) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes and the
Company agrees to comply with such Section if prior to the completion of
the distribution of the Offered Securities it commences doing such
business.
(b) Each Selling Stockholder, severally and not jointly, represents and
warrants to, and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered Securities
to be delivered by such Selling Stockholder on such Closing Date
hereunder; and upon the delivery of and payment for the Offered Securities
on each Closing Date hereunder the several Underwriters will acquire valid
and unencumbered title to the Offered Securities to be delivered by such
Selling Stockholder on such Closing Date.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the Rules and Regulations and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement conformed, or will
conform, in all material respects to the requirements of the Act and the
Rules and Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, and (C) on the date of this Agreement,
the Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and delivery
of this Agreement, the Additional Registration Statement each conforms,
and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if
no such filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all respects to
the requirements of the Act and the Rules and Regulations, and neither of
such documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact required
to be stated therein or necessary to make the
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statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration Statement,
the Initial Registration Statement and the Prospectus will conform in all
material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents will include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading. The preceding sentences apply only to the extent that any
statements in or omissions from a Registration Statement or the Prospectus
are based on written information furnished to the Company by such Selling
Stockholder specifically for use therein.
(iii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between such Selling Stockholder and any
person that would give rise to a valid claim against the Company, such
Selling Stockholder or any Underwriter for a brokerage commission,
finder's fee or other like payment in connection with this offering.
(iv) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Securities by the
Selling Stockholder, except such as have been obtained and made under the
Act and the Rules and Regulations of the Commission thereunder and such as
may be required under state securities or blue sky laws in connection with
the offer and sale of the Offered Securities by the Selling Stockholder.
(v) Such Selling Stockholder has taken all action reasonably
necessary to enable it to deliver and sell the Offered Securities to the
Underwriters as contemplated by this Agreement.
(vi) With respect to Sterling only, Schedule F contains a complete
list of all material agreements or instruments to which Sterling or any
subsidiary of Sterling is a party or by which Sterling or any such
subsidiary is bound or to which any of the properties of Sterling or any
such subsidiary is subject.
(vii) With respect to CMP only, Schedule G contains a complete list
of all material agreements or instruments relating to CMP's investment in
the Company to which CMP or any subsidiary of CMP is a party or by which
CMP or any such subsidiary is bound or to which any of the properties of
CMP or any such subsidiary is subject.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to the Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from each Selling Stockholder, at
a purchase price of $ per share, the number of Firm Securities set forth
opposite the name of such Selling Stockholder in Schedule A hereto and opposite
the name of such Underwriter in Schedule B hereto.
The Selling Stockholders will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account previously designated to Credit Suisse First Boston
Corporation ("CSFBC") by Sterling and CMP, as the case may be, at a bank
acceptable to CSFBC drawn to the order of Sterling in the case of 13,294,411
shares of Firm Securities and CMP in the case of 705,589 shares of Firm
Securities at the office of Cravath, Swaine & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, at 9:00 A.M., New York time, on , or at such
other time not later than seven full business days thereafter as CSFBC and the
Selling Stockholders determine, such time being herein referred to as the "FIRST
CLOSING DATE." For purposes of Rule 15c6-1 under the Exchange Act, the First
Closing Date (if later
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than the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Offered Securities sold
pursuant to the offering. The certificates for the Firm Securities so to be
delivered will be in definitive form, in such denominations and registered in
such names as CSFBC requests and will be made available for checking and
packaging at the above office of Cravath, Swaine & ▇▇▇▇▇ at least 24 hours prior
to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and the
Selling Stockholders from time to time not more than 30 days subsequent to the
date of the Prospectus, the Underwriters may purchase all or less than all of
the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Selling Stockholders agree, severally and not jointly, to
sell to the Underwriters and the Underwriters agree, severally and not jointly,
to purchase the respective numbers of Optional Securities obtained by
multiplying the number of Optional Securities specified in such notice by a
fraction the numerator of which is 1,994,162 and 105,838 in the case of Sterling
and CMP, respectively, the denominator of which is the total number of Optional
Securities. Such Optional Securities shall be purchased from each Selling
Stockholder for the account of each Underwriter in the same proportion as the
number of Firm Securities set forth opposite such Underwriter's name bears to
the total number of Firm Securities (subject to adjustment by CSFBC to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. In the event that the over-allotment option is exercised by the
Underwriters in part but not in full, the amount of Optional Securities
purchased by the Underwriters from Sterling and CMP shall be in exact proportion
to the amount of Optional Securities purchased by the Underwriters from Sterling
and CMP had the over-allotment option been exercised by the Underwriters in
full. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Selling
Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE," which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Selling Stockholders will
deliver the applicable Optional Securities being purchased on each Optional
Closing Date to the Representatives for the accounts of the several
Underwriters, against payment of the purchase price in Federal (same day) funds
by official bank check or checks or wire transfer to an account or accounts
designated by Sterling and CMP, as the case may be, at a bank acceptable to
CSFBC drawn to the order of Sterling in the case of Optional Securities and CMP
in the case of Optional Securities, at the above office of Cravath, Swaine &
▇▇▇▇▇. The certificates for the Optional Securities being purchased on each
Optional Closing Date will be in definitive form, in such denominations and
registered in such names as CSFBC requests upon reasonable notice prior to such
Optional Closing Date and will be made available for checking and packaging at
the above office of Cravath, Swaine & ▇▇▇▇▇ at a reasonable time in advance of
such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company and, as specifically set forth below, the Selling Stockholders,
severally and not jointly, each with respect to themselves agree with the
several Underwriters that:
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(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement. The Company will advise CSFBC promptly of any such
filing pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of such execution and delivery,
the Company will file the additional registration statement or, if filed,
will file a post-effective amendment thereto with the Commission pursuant
to and in accordance with Rule 462(b) on or prior to 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, on or prior to the
time the Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by
CSFBC.
(b) The Company will advise CSFBC and the Selling Stockholders
promptly of any proposal to amend or supplement the initial or any
additional registration statement as filed or the related prospectus or
the Initial Registration Statement, the Additional Registration Statement
(if any) or the Prospectus and will not effect such amendment or
supplementation without CSFBC's prior consent; and the Company will also
advise CSFBC and the Selling Stockholders promptly of the effectiveness of
each Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of
a Registration Statement and will use its reasonable best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFBC and the Selling Stockholders of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither CSFBC's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "AVAILABILITY DATE" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"AVAILABILITY DATE" means the 90th day after the end of such fourth fiscal
quarter.
(e) The Company will furnish to the Representatives and the Selling
Stockholders copies of each Registration Statement (seven of which will be
signed and will include all exhibits), each related preliminary
prospectus, and, so long as a prospectus relating to the Offered
Securities is
10
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and supplements
to such documents, in each case in such quantities as CSFBC reasonably
requests. The Prospectus shall be so furnished in New York City on or
prior to 3:00 P.M., New York time, on the business day following the later
of the execution and delivery of this Agreement or the Effective Time of
the Initial Registration Statement. All other such documents shall be so
furnished as soon as available. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company, in cooperation with the Underwriters and their
counsel, will arrange for the qualification of the Offered Securities for
sale under the laws of such jurisdictions as CSFBC designates and will
continue such qualifications in effect so long as required for the
distribution; provided that the Company will not be required to qualify as
a foreign corporation or to file a general consent to service of process
in any jurisdiction.
(g) During the period of three years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Exchange Act or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as CSFBC
may reasonably request.
(h) The Company will pay all expenses incident to the performance of
the obligations of the Company and the Selling Stockholders, as the case
may be, under this Agreement, for any filing fees and other expenses
(including fees and disbursements of counsel) incurred in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as CSFBC designates and the printing of memoranda relating
thereto, and for the filing fee incidental to the review by the National
Association of Securities Dealers, Inc. (the "NASD") of the Offered
Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities, for all fees and expenses incidental to the qualification of
the Offered Securities for quotation on The Nasdaq Stock Market's National
Market and for expenses incurred in distributing preliminary prospectuses
and the Prospectus (including any amendments and supplements thereto) to
the Underwriters.
(i) In connection with the offering, until CSFBC shall have notified
the Company and the other Underwriters of the completion of the
distribution of the Offered Securities, neither the Company nor any of its
affiliates has or will, either alone or with one or more other persons,
bid for or purchase for any account in which it or any of its affiliates
has a beneficial interest, any Offered Securities or attempt to induce any
person to purchase any Offered Securities; and neither it nor any of its
affiliates will make bids or purchases for the purpose of creating actual,
or apparent, active trading in, or of raising the price of, the Offered
Securities; provided, however, that neither Citicorp Venture Capital, Ltd.
nor any subsidiary or affiliate of Citicorp Venture Capital, Ltd. shall be
considered an affiliate of the Company for purposes of this Section 5(i).
(j) In connection with the offering, until CSFBC shall have notified
the Company and the other Underwriters of the completion of the
distribution of the Offered Securities, neither Citicorp Venture Capital,
Ltd. nor any of its affiliates has or will, either alone or with one or
more other persons, bid for or purchase for any account in which it or any
of its affiliates has a beneficial interest, any Offered Securities or
attempt to induce any person to purchase any Offered Securities; and
neither it nor any of its affiliates will make bids or purchases for the
purpose of creating actual, or apparent, active trading in, or of raising
the price of, the Offered Securities.
11
(k) For a period of 90 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act
relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
CSFBC. Notwithstanding the foregoing sentence, during this 90 day period,
the Company may (i) issue Securities pursuant to the conversion or
exchange of convertible or exchangeable securities or the exercise of
warrants or options, in each case outstanding on the date hereof, (ii)
grant employee stock options pursuant to the terms of a plan in effect on
the date hereof, (iii) issue Securities pursuant to the exercise of such
options, (iv) file registration statements on Form S-8 and amendments
thereto in connection with those stock options or employee stock purchase
plans of the Company in existence on the Closing Date, (v) file
post-effective amendments to Form S-3 or Form S-4, as needed, and (vi)
issue shares registered pursuant to a Registration Statement on Form S-4
and amendments thereto or otherwise issue shares or options in
acquisitions or business combinations in which the acquiror or acquirors
of such shares or options agree(s) to the foregoing restrictions.
(l) Each Selling Stockholder listed on Schedule C agrees, for a
period of 90 days after the date of the initial public offering of the
Offered Securities, not to offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any additional shares of the
Securities of the Company or securities convertible into or exchangeable
or exercisable for any shares of Securities, enter into a transaction
which would have the same effect, or enter into any swap, hedge or other
arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Securities, whether any such
aforementioned transaction is to be settled by delivery of the Securities
or such other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge or disposition, without the
prior written consent of CSFBC.
(m) Each Selling Stockholder agrees to deliver to CSFBC, attention:
Transactions Advisory Group on or prior to the First Closing Date a
properly completed and executed United States Treasury Department Form W-9
(or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
(n) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, a Selling Stockholder has knowledge of
any event that has occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or has knowledge that it is necessary at any time to amend the
Prospectus to comply with the Act, such Selling Stockholder will promptly
notify CSFBC and the Company of such event.
(o) Each Selling Stockholder agrees with the several Underwriters
that such Selling Stockholder will pay for any transfer taxes on the sale
by such Selling Stockholder of the Offered Securities to the Underwriters.
12
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the 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 Company and, in all material respects (except
where such representations and warranties are, by their terms, already qualified
by materiality), the Selling Stockholders, to the accuracy of the statements of
Company officers made pursuant to the provisions hereof, to the performance by
the Company and the Selling Stockholders of their respective obligations
hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of Ernst & Young LLP
confirming that they are independent public accountants within the meaning
of the Act and the applicable published Rules and Regulations thereunder
and stating to the effect that:
(i) in their opinion the consolidated financial statements and
financial schedules audited by them and included in the Registration
Statements comply as to form in all material respects with the
applicable accounting requirements of the 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 the unaudited
financial statements included in the Registration Statements;
(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 or summaries
thereof included in the Registration Statements 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 for them to be in
conformity with generally accepted accounting principles;
(B) 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
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 the date of
the latest available balance sheet read by such accountants,
there was any decrease in consolidated net current assets or
net assets or shareholders' equity as compared with amounts
shown on the latest balance sheet included in the Prospectus;
or
(C) for the period from the closing date of the latest
income statement included in the Prospectus to the closing
date of the latest available income statement read by such
accountants there were any decreases, as compared with
13
the corresponding period of the previous year, in consolidated
net revenues, operating income (loss), net income (loss) or in
the total or per share amounts of consolidated net income,
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
(iv) in their opinion, with respect to the unaudited pro forma
combined condensed statements of operations included in the
Prospectus, (A) the assumptions of each of the Company'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 combined condensed statements of operations;
(v) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case
to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the internal
controls of the 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.
The Representatives also shall have received a letter from Ernst & Young
LLP describing the procedures undertaken by Ernst & Young LLP with respect
to backlog amounts of the Company.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and delivery
of this Agreement, "REGISTRATION STATEMENTS" shall mean the initial
registration statement as proposed to be amended by the amendment or
post-effective amendment to be filed shortly prior to its Effective Time,
(ii) if the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement but the Effective Time of
the Additional Registration is subsequent to such execution and delivery,
"REGISTRATION STATEMENTS" shall mean the Initial Registration Statement
and the additional registration statement as proposed to be filed or as
proposed to be amended by the post-effective amendment to be filed shortly
prior to its Effective Time, and (iii) "PROSPECTUS" shall mean the
prospectus included in the Registration Statements. All financial
statements and schedules included in material incorporated by reference
into the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or such later date as shall have been consented to
by CSFBC. If the Effective Time of the Additional Registration Statement
(if any) is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or, if earlier, the time the
Prospectus is
14
printed and distributed to any Underwriter, or shall have occurred at such
later date as shall have been consented to by CSFBC. If the Effective Time
of the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a)
of this Agreement. Prior to such Closing Date, no stop order suspending
the effectiveness of a Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Selling Stockholders, the Company or the Representatives,
shall be threatened by the Commission.
(c) 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 Underwriters including the 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; (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); (iii) 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 the
Company on any exchange or in the over-the-counter market; (iv) any
banking moratorium declared by U.S. Federal or New York authorities; (v)
any major disruption of settlements of securities or clearance services in
the United States, if, in the reasonable judgment of a majority in
interest of the Underwriters including the Representatives, the effect of
any such disruption makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities; or (vi) any attack on, any outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by the U.S. Congress or any other national or
international calamity or emergency if, in the reasonable judgment of a
majority in interest of the Underwriters including the Representatives,
the effect of any such attack, outbreak, escalation, act, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of Dechert, counsel for the Company, to the effect that:
(i) 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 Prospectus;
and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions listed in
such opinion or listed in Schedule D attached hereto;
(ii) The Offered Securities delivered on such Closing Date and
all other outstanding shares of the common stock of the Company have
been duly authorized and, when the Offered Securities have been
delivered and paid for in accordance with this Agreement on each
Closing Date, will be validly issued, fully paid and nonassessable
and will conform in all material respects to the description thereof
contained in the Prospectus;
15
(iii) There are no contracts, agreements or understandings
known to such counsel between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act, other than the Registration Rights Agreement;
(iv) The Company is not and, after giving effect to the
offering and sale of the Offered Securities, will not be an
"investment company" as defined in the Investment Company Act of
1940;
(v) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for
the consummation of the transactions contemplated by this Agreement
in connection with the issuance or sale of the Offered Securities by
the Company, except such as have been obtained and made under the
Act and such as may be required under state securities or blue sky
laws, and 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;
(vi) Except as disclosed in the Prospectus, insofar as is
known to such counsel, there are no pending actions, suits or
proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries,
would be reasonably likely to have a Material Adverse Effect;
(vii) The execution, delivery and performance of this
Agreement and the consummation of the transactions herein
contemplated 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 Federal statute, rule, regulation applicable to the Company or
order of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company or
any of their properties and which order is known to such counsel, or
any agreement or instrument (other than the failure by the Company
to provide proper notice of the offering to the other parties to the
Registration Rights Agreement, except where a waiver of such notice
has been obtained) listed in such opinion or listed in Schedule E
attached hereto, or the charter or by-laws of the Company or any
such subsidiary;
(viii) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in such
opinion, the Additional Registration Statement (if any) was filed
and became effective under the Act as of the date and time (if
determinable) specified in such opinion, the Prospectus either was
filed with the Commission pursuant to the subparagraph of Rule
424(b) specified in such opinion on the date specified therein or
was included in the Initial Registration Statement or the Additional
Registration Statement (as the case may be), and, to the knowledge
of such counsel, no stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
threatened under the Act, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act and the Rules and
Regulations (except as to the financial statements, supporting
16
schedules, footnotes and other financial and related statistical
information included therein, as to which such counsel expresses no
opinion); and
(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
In addition, such counsel shall state in a separate letter that they
have participated in conferences with officers and other representatives
of the Company and representatives of the Underwriters and its counsel
during which the contents of the Registration Statement and related
matters were discussed and reviewed and, although such counsel has not
independently verified, is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and have relied as to
materiality to a large extent upon the statements of officers and other
representatives of the Company, on the basis of the information that was
developed in the course of the services referred to above, considered in
the light of such counsel's understanding of the applicable law, that
nothing came to their attention that caused them to believe that any part
of a Registration Statement or any amendment or supplement thereto made
prior to the Closing Date (other than the financial statements, supporting
schedules, footnotes and other financial and related statistical
information included therein, as to which such counsel expresses no
opinion), as of its effective date or as of such Closing Date, contained
any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or that the Prospectus or any amendment or supplement thereto,
made prior to the Closing Date (other than the financial statements,
supporting schedules, footnotes and other financial and related
statistical information included therein, as to which such counsel
expresses no opinion), as of the date of the Prospectus or any amendment
or supplement thereto or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York, the General Corporation Law of the State of Delaware or the
Federal laws of the United States, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel who are
satisfactory to counsel for the Underwriters (which opinion will be
attached thereto), and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials. Such opinion may be limited to the laws of the State of New
York, the General Corporation Law of the State of Delaware and the Federal
laws of the United States.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of Dechert, counsel for Sterling, to the effect that:
(i) Upon delivery by Sterling of the Offered Securities to be
sold by Sterling (the "STERLING SHARES") to the Underwriters against
payment therefor as contemplated by this Agreement and registration
of the Sterling Shares in the names of the Underwriters in the stock
records of the Company, the Underwriters will have acquired valid
title to the Sterling Shares, free and clear of all adverse claims.
For purposes of such opinion, counsel shall have assumed that the
Underwriters will have purchased the Sterling Shares for value in
good faith and without notice of any adverse claim in the Sterling
Shares and will take possession on such Closing Date of the
certificates representing the Sterling Shares and the instruments
pursuant to which Sterling has assigned the Sterling Shares to the
Underwriters. The term "adverse claim" as used in such opinion has
the meaning given such term in Article 8 of the Uniform Commercial
Code as adopted in the State of
17
New York (the "UCC") and does not include (A) any claim which arises
through the Underwriters or any person claiming through the
Underwriters (such as any security interest the Underwriters may
have granted in the Sterling Shares) and (B) any adverse claim which
would not be extinguished upon the purchase of the Sterling Shares
by a person who qualifies as a "protected purchaser" under Section
8-303 of the UCC. Such counsel shall have also assumed that such
Underwriters' rights are not limited by subsection (c) of Section
8-302 of the UCC;
(ii) Pursuant to the laws of the State of New York and the
United States of America, and the Limited Liability Company Act of
the State of Delaware, no consent, approval, authorization or order
of, or filing with, any governmental agency or body or any court is
required to be obtained or made by Sterling for the consummation of
the transactions contemplated by this Agreement in connection with
the sale of the Sterling Shares, except such as have been or will be
obtained or made under the Act and such as may be required under
state securities laws;
(iii) The execution, delivery and performance of this
Agreement and the consummation of the transactions therein
contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any material
New York or Federal statute, rule or regulation or the Limited
Liability Company Act of the State of Delaware applicable to
Sterling or any order of any governmental agency or body or any
court having jurisdiction over Sterling or any of its properties and
which order is known to such counsel, or any agreement or instrument
list in such opinion or listed in Schedule F attached hereto, or the
certificate of formation, limited liability company agreement or any
other constitutive documents of Sterling, and Sterling has full
power and authority to sell the Sterling Shares as contemplated by
this Agreement; and
(iv) This Agreement has been duly authorized, executed and
delivered by Sterling.
(f) The Representatives shall have received an opinion, dated such
Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for CMP, to the effect that:
(i) Upon delivery by CMP of the Offered Securities to be sold
by CMP (the "CMP SHARES") to the Underwriters against payment
therefor as contemplated by this Agreement and registration of the
CMP Shares in the names of the Underwriters in the stock records of
the Company, the Underwriters will have acquired valid title to the
CMP Shares, free and clear of all adverse claims. For purposes of
such opinion, counsel shall have assumed that the Underwriters will
have purchased the CMP Shares for value in good faith and without
notice of any adverse claim in the CMP Shares and will take
possession on such Closing Date of the certificates representing the
CMP Shares and the instruments pursuant to which CMP has assigned
the CMP Shares to the Underwriters. The term "adverse claim" as used
in such opinion has the meaning given such term in Article 8 of the
UCC and does not include (A) any claim which arises through the
Underwriters or any person claiming through the Underwriters (such
as any security interest the Underwriters may have granted in the
CMP Shares) and (B) any adverse claim which would not be
extinguished upon the purchase of the CMP Shares by a person who
qualifies as a "protected purchaser" under Section 8-303 of the UCC.
Such counsel shall have also assumed that such Underwriters' rights
are not limited by subjection (c) of Section 8-302 of the UCC;
18
(ii) Pursuant to the laws of the State of New York and the
United States of America, no consent, approval, authorization or
order of, or filing with, any governmental agency or body or any
court is required to be obtained or made by CMP for the consummation
of the transactions contemplated by this Agreement in connection
with the sale of the CMP Shares, except such as have been or will be
obtained or made under the Act and such as may be required under
state securities laws;
(iii) The execution, delivery and performance of this
Agreement and the consummation of the transactions therein
contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any material
New York or Federal statute, rule or regulation applicable to CMP or
any order of any governmental agency or body or any court having
jurisdiction over CMP or any of its properties and which order is
known to such counsel, or any agreement or instrument listed in such
opinion or listed in Schedule G attached hereto, or the certificate
of formation, limited partnership agreement or any other
constitutive documents of CMP, and CMP has full power and authority
to sell the CMP Shares as contemplated by this Agreement; and
(iv) This Agreement has been duly authorized, executed and
delivered by CMP.
(g) The Representatives shall have received from Cravath, Swaine &
▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as the
Representatives may require, and the Company and the Selling Stockholders
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(h) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation and in their
capacity as such officers, shall state that: the representations and
warranties of the Company in 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; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are threatened by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance with
Rule 111(a) or (b) under the Act, prior to the time the Prospectus was
printed and distributed to any Underwriter; and, subsequent to the date of
the most recent financial statements in the Prospectus, 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 or contemplated
by the Prospectus or as described in such certificate.
(i) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Senior Vice President and any
authorized representative for each of the Selling Stockholders in which
such officers or representatives, to the best of their knowledge and after
reasonable investigation and in their capacity as such officers or
representatives, on behalf of such Selling Stockholder, shall state that:
all the representations and warranties of such Selling Stockholder
contained in this Agreement are true and correct on the date hereof with
the same force and effect as if made on and as of the date hereof; and
such Selling Stockholder has complied with all of the agreements and
satisfied all conditions on its part contained in this Agreement and
19
required to be complied with or satisfied by such Selling Stockholder on
or prior to such Closing Date.
(j) The Representatives shall have received a letter, dated such
Closing Date, of Ernst & Young 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.
(k) The Company shall have received a waiver from each party thereto
(other than the Company) with respect to registration rights granted to
such party under the Registration Rights Agreement.
(l) The lock-up agreements between the Representatives, directors,
officers and shareholders listed on Schedule C hereto, delivered to you on
or before the date hereof, shall be in full force and effect on the
Closing Date.
The Selling Stockholders and the Company will furnish the Representatives
with such conformed copies of such opinions, certificates, letters and documents
as the Representatives reasonably request. CSFBC may in its sole discretion
waive on behalf of the Underwriters compliance with any conditions to the
obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only information furnished by any Underwriter consists of the
information described as such in subsection (c) below; provided, further, that
with respect to any untrue statement or alleged untrue statement in or omission
or alleged omission from any preliminary prospectus, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting such losses, claims, damages or
liabilities purchased the Offered Securities concerned to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability results from the fact that there was not sent
or given to such person, at or prior to the written confirmation of the sale of
such Offered Securities, a copy of the Prospectus (as amended or supplemented)
in which such untrue statement or omission or alleged omission shall have been
corrected, if the Company had previously furnished copies thereof to such
Underwriter.
Insofar as the foregoing indemnity agreement, or the representations and
warranties contained in Section 2(b), may permit indemnification for liabilities
under the Act of any person who is an Underwriter or a partner or controlling
person of an Underwriter within the meaning of Section 15 of the Act and who, at
the date of this Agreement, is a director, officer or controlling person of the
Company, the Company has
20
been advised that in the opinion of the Commission such provisions may
contravene Federal public policy as expressed in the Act and may therefore be
unenforceable. In the event that a claim for indemnification under such
agreement or such representations and warranties for any such liabilities
(except insofar as such agreement provides for the payment by the Company of
expenses incurred or paid by a director, officer or controlling person in the
successful defense of any action, suit or proceeding) is asserted by such a
person, the Company will submit to a court of appropriate jurisdiction (unless
in the opinion of counsel for the Company the matter has already been settled by
controlling precedent) the question of whether or not indemnification by it for
such liabilities is against public policy as expressed in the Act and therefore
unenforceable, and the Company will be governed by the final adjudication of
such issue.
(b) Each Selling Stockholder will, severally and not jointly, indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company by such
Selling Stockholder specifically for use therein and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company and each Selling
Stockholder in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: the paragraph on the cover page concerning the terms of the
Offering by the Underwriters, the concession and reallowance figures appearing
in the fourth paragraph under the caption "Underwriting" and the information
contained in the tenth and twelfth paragraphs under the caption "Underwriting."
(d) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that
21
it may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
(e) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a), (b) or
(c) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Stockholders on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Offered Securities (before deducting expenses) received by the Company and the
Selling Stockholders bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under this
Section shall be in addition to any liability which the Company and the Selling
Stockholders may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
22
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase the Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC, the Company and the Selling Stockholders for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 9 (provided, that if such default occurs with respect to the
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders and of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by each of them
pursuant to Section 5 and the respective obligations of the Company, the Selling
Stockholders and the Underwriters pursuant to Section 7 shall remain in effect
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv), (v) or (vi) of Section 6(c), the Company and the Selling
Stockholders will reimburse the Underwriters for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
Credit Suisse First Boston Corporation, One Madison Avenue, New York, N.Y.
10010-3629, Attention: Legal and Compliance Department - Transactions Advisory
Group, or, if sent to the Company, will be mailed, delivered or telecopied and
confirmed to it at Intersil Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, with a copy to Dechert, 4000 ▇▇▇▇
Atlantic Tower, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, or, if sent to the Selling Stockholders, will be mailed, delivered or
telegraphed and confirmed to it c/o Intersil Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, with a copy to
Dechert, 4000 ▇▇▇▇ Atlantic Tower, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
23
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
12. Representation of the Underwriters. The Representatives will act for
the several Underwriters in connection with the transactions contemplated by
this Agreement, and any action under this Agreement taken by the Representatives
jointly or by CSFBC will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company and the Selling Stockholders hereby submit to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
24
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Company, the
Selling Stockholders and the several Underwriters in accordance with its terms.
Very truly yours,
INTERSIL CORPORATION,
By
-----------------------------------------
Name:
Title:
STERLING HOLDING COMPANY, LLC,
By
-----------------------------------------
Name:
Title:
CITICORP MEZZANINE PARTNERS, L.P.,
By
-----------------------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION,
▇▇▇▇▇▇ BROTHERS INC.,
DEUTSCHE BANK SECURITIES INC.,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.,
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION,
Acting on behalf of themselves and as the
Representatives of the several
Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
-----------------------------------
Name:
Title: