10,000,000 Shares
INTERSIL HOLDING CORPORATION
Class A Common Stock
UNDERWRITING AGREEMENT
, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION,
FLEETBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇ ▇▇▇▇▇ 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. Intersil Holding Corporation, a Delaware corporation
("Company"), proposes to issue and sell 3,000,000 shares of its Class A Common
Stock ("Securities") and the stockholders listed in Schedule A hereto ("Selling
Stockholders") propose severally to sell an aggregate of 7,000,000 outstanding
shares of the Securities (such 10,000,000 shares of Securities being hereinafter
referred to as the "Firm Securities"). The Company also proposes to sell to the
Underwriters, at the option of the Underwriters, an aggregate of not more than
500,000 additional shares of its Securities, and Sterling Holding Company, LLC
("Sterling") also proposes to sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than 956,906 additional outstanding
shares of the Company's Securities and Citicorp Mezzanine Partners, L.P. ("CMP")
also proposes to sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 43,094 additional outstanding Shares of the Company's
Securities, as set forth below (such 1,500,000 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 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. 333-44606) 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
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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 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 information contained
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, 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
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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 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 any Selling Stockholder or by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information 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 otherwise), business, properties or results of
operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect").
(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 as described in the Prospectus.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; 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
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issued, fully paid and nonassessable and will conform in all material
respects to the description thereof contained in the Prospectus; and
the stockholders of the Company have no preemptive rights with respect
to the Offered Securities to be sold by the Company, except as
disclosed in the Prospectus.
(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
Registration Rights Agreement (the "Registration Rights Agreement"),
dated August 13, 1999, among the Company, Intersil Corporation, Manatee
Investment Corporation, Sterling and the other stockholders of the
Company.
(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 by
the Company, 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 issuance and sale of the Offered Securities by the Company 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, or the charter or by-laws of
the Company or any such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(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.
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(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business 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
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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.
(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, except as
disclosed in or contemplated by the Prospectus, 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 and the application of the
proceeds thereof 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 CMP to deliver and sell the CMP Shares (as defined) to the
Underwriters as contemplated by this Agreement.
(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 or the
Custodian, as the case may be, 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 or the Custodian, as the case may be, 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
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
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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 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) CMP has taken all action reasonably necessary to enable it
to deliver and sell the CMP Shares (as defined) to the Underwriters as
contemplated by this Agreement.
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, the Company and each Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and each Selling Stockholder, at a purchase price of $ per share, that number of
Firm Securities (rounded up or down, as determined by Credit Suisse First Boston
Corporation ("CSFBC") in its discretion, in order to avoid fractions) obtained
by multiplying 3,000,000 Firm Securities in the case of the Company and the
number of Firm Securities set forth opposite the name of such Selling
Stockholder in Schedule A hereto, in the case of a Selling Stockholder, in each
case by a fraction the numerator of which is the number of Firm Securities set
forth opposite the name of such Underwriter in Schedule B hereto and the
denominator of which is the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold
by the Selling Stockholders hereunder (other than for the Offered Securities to
be sold by Sterling and CMP) have been placed in custody, for delivery under
this Agreement, under Custody Agreements made with Equiserve Trust Company, as
custodian ("Custodian"). Each such Selling Stockholder agrees that the shares
represented by the certificates held in custody for such Selling Stockholders
under such Custody Agreements are subject to the interests of the Underwriters
hereunder, that the arrangements made by such Selling Stockholders for such
custody are to that extent irrevocable, and that the obligations of such Selling
Stockholders hereunder shall not be terminated by operation of law, whether by
the death of any individual Selling Stockholder or the occurrence of any other
event, or in the case of a trust, by the death of any trustee or trustees or the
termination of such trust, except as provided in the Custody Agreement with
respect to the Selling Stockholders party thereto. If any individual Selling
Stockholder or any such trustee or trustees should die, or if any other such
event should occur, or if any of such trusts should terminate, before the
delivery of the Offered Securities hereunder, certificates for such Offered
Securities shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such death
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or other event or termination had not occurred, regardless of whether or not the
Custodian shall have received notice of such death or other event or
termination.
The Company, the Custodian, Sterling and CMP 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 wire transfer to an
account previously designated to CSFBC by the Company, Sterling, CMP and the
Custodian, as the case may be, at a bank acceptable to CSFBC drawn to the order
of (i) Intersil Holding Corporation in the case of 3,000,000 shares of Firm
Securities, (ii) Sterling Holding Company, LLC in the case of 5,950,554 shares
of Firm Securities, (iii) Citicorp Mezzanine Partners, L.P. in the case of
267,981 shares of Firm Securities and (iv) Equiserve Trust Company in the case
of 781,465 shares of Firm Securities at the office of Cravath, Swaine & ▇▇▇▇▇,
Worldwide Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at 9:00 A.M., New York
time, on , 2000, or at such other time not later than seven full business days
thereafter as CSFBC and the Company 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 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,
Sterling and CMP 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 Company, Sterling and CMP agree, severally and not jointly, to
sell to the Underwriters, the number of Optional Securities specified in such
notice and the Underwriters agree, severally and not jointly, to purchase the
Optional Securities. Such Optional Securities shall be purchased from the
Company, Sterling and CMP for the account of each Underwriter in the same
proportion as the number of shares of Firm Securities set forth opposite such
Underwriter's name bears to the total number of shares 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 the
Company, Sterling and CMP shall be in exact proportion to the amount of Optional
Securities purchased by the Underwriters from the Company, 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 Company, Sterling and CMP.
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 Company, Sterling and CMP
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 therefor in Federal (same
day) funds by official bank check or checks or wire transfer to an account or
accounts designated by the Company, Sterling and CMP, as the case may be,
acceptable to CSFBC at a bank acceptable to CSFBC drawn to the order of (i)
Intersil Holding Corporation in the case of 500,000 shares of Optional
Securities, (ii) Sterling Holding Company, LLC in the case of 956,906 shares of
Optional Securities and (iii) Citicorp Mezzanine Partners, L.P. in the case of
43,094 shares of Optional Securities, at the above office of Cravath, Swaine &
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▇▇▇▇▇. 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:
(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.
10
(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 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, for the filing fee incidental
to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, 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
11
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.
(k) For a period of 90 days after the First Closing Date, 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-1 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) The Company will apply the net proceeds of the offering
and the sale of the Offered Securities in the manner set forth in the
Prospectus under the caption "Use of Proceeds."
(m) Each Selling Stockholder listed on Schedule C agrees, for
a period of 90 days after the First Closing Date, 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.
(n) Each of the Selling Stockholders 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).
12
(o) 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, (i) with respect to ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, such 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
concerning such Selling Stockholder or information provided by such
Selling Stockholder necessary to make the statements therein concerning
such Selling Stockholder or information provided by such Selling
Stockholder, in light of the circumstances under which they were made,
not misleading, (ii) with respect to all other Selling Stockholders,
such 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 (iii)
if any of the Selling Stockholders referenced in Section 5(o)(ii) of
this Agreement 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.
(p) 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.
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 herein, 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) on the basis of a reading of the latest
available interim financial statements of the Company,
inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them
to believe that:
(A) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days
13
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 as
compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(B) 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 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 (A) and (B) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter;
(iii) in their opinion, with respect to the unaudited
pro forma combined condensed statement 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 statement of operations;
(iv) 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
14
post-effective amendment to be filed shortly prior to its Effective
Time, and (iii) "Prospectus" shall mean the prospectus included in the
Registration Statements.
(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 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; or (v) any
outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by the U.S. Congress or any other
substantial 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 outbreak,
escalation, 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;
(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,
15
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; and the stockholders of the
Company have no preemptive rights with respect to the Offered
Securities to be sold by the Company;
(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) 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 or the Custody 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;
(v) 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;
(vi) The execution, delivery and performance of this
Agreement or the Custody Agreement and the issuance and sale
of the Offered Securities by the Company 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, 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 listed in such opinion
(other than the failure by the Company to provide proper
notice of the offering to the other parties to the
Registration Rights Agreement), or the charter or by-laws of
the Company or any such subsidiary, and the Company has full
power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement;
(vii) 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
16
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 schedules, footnotes and other
financial and 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 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 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 the opinions
contemplated in the Power of Attorney executed and delivered by ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇.
▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and an opinion, dated such Closing Date, of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, counsel for such Selling Stockholders, to the effect
that:
(i) Each such Selling Stockholder had valid and
unencumbered title to the Offered Securities delivered by such
Selling Stockholder on such Closing Date and had full right,
power and authority to sell, assign, transfer and deliver the
Offered Securities delivered by such Selling Stockholder on
such Closing Date hereunder; and the several
17
Underwriters have acquired valid and unencumbered title to the
Offered Securities purchased by them from such Selling
Stockholders on such Closing Date hereunder;
(ii) 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 any such Selling
Stockholder for the consummation of the transactions
contemplated by the Custody Agreement or this Agreement in
connection with the sale of the Offered Securities sold by
such Selling Stockholder, except such as have been obtained
and made under the Act and may be required under state
securities laws;
(iii) The execution, delivery and performance of the
Custody Agreement and this Agreement and the consummation of
the transactions therein and 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 having jurisdiction over any such Selling
Stockholder or any of their properties or any agreement or
instrument to which any such Selling Stockholder is a party or
by which any such Selling Stockholder is bound or to which any
of the properties of any such Selling Stockholder is subject;
(iv) The Power of Attorney and related Custody
Agreement with respect to each Selling Stockholder has been
duly authorized, executed and delivered by such Selling
Stockholder and constitute valid and legally binding
obligations of each such Selling Stockholder enforceable in
accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
and
(v) This Agreement has been duly authorized, executed
and delivered by each such Selling Stockholder.
(f) The Representatives shall have received an opinion, dated
as of the First 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 the 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 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;
18
(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 listed on Schedule A to such
opinion, 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 one of the Attorneys (as defined in
the Power of Attorney) on behalf of Sterling.
(g) The Representatives shall have received an opinion, dated
as of the First 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 the 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 Uniform Commercial Code as
adopted in the State of 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 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;
(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;
19
(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 on Schedule A to such opinion,
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.
(h) 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.
(i) 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.
(j) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Senior Vice President
and any authorized representative of Sterling 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 Sterling, shall state that: all the
representations and warranties of Sterling 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 Sterling has complied with
all of the agreements and satisfied all conditions on its part
contained in this Agreement and required to be complied with or
satisfied by Sterling on or prior to such Closing Date.
(k) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Senior Vice President
and any authorized representative of CMP 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 CMP, shall state that: all the
representations and warranties of CMP contained in this Agreement are
true and correct on the
20
date hereof with the same force and effect as if made on and as of the
date hereof; and CMP has complied with all of the agreements and
satisfied all conditions on its part contained in this Agreement and
required to be complied with or satisfied by CMP on or prior to such
Closing Date.
(l) 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.
(m) 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.
(n) 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),
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
21
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 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 the 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
22
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 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
23
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.
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) or (v) 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, Eleven Madison Avenue, New York, N.Y.
10010-3629, Attention: Investment Banking Department - Transactions Advisory
Group, or, if sent to the Company, will be mailed, delivered or telecopied and
confirmed to it at Intersil Holding 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 Holding 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.
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 Underwriters. The Representatives will act for
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives 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.
25
If the foregoing is in accordance with the Representative's
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 Stockholder and the several Underwriters in accordance with
its terms.
Very truly yours,
INTERSIL HOLDING CORPORATION,
By
-------------------------------------
Name:
Title:
THE SELLING STOCKHOLDERS LISTED ON
SCHEDULE A HERETO (OTHER THAN STERLING AND
CMP),
By
-------------------------------------
Name:
Title: Attorney-in-fact
STERLING HOLDING COMPANY, LLC,
By
-------------------------------------
Name:
Title:
CITICORP MEZZANINE PARTNERS, L.P.,
By
-------------------------------------
Name:
Title:
26
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
FLEETBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
▇▇▇▇▇▇ BROTHERS INC.
CHASE SECURITIES INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
Acting on behalf of themselves and as the Representatives of the
several Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
-------------------------------------------
Name:
Title:
SCHEDULE A
Number of
Number of Optional
Firm Securities Securities to
Selling Stockholder to be Sold be Sold
------------------- ---------------- -------------
Sterling Holding Company, LLC.......................................... 5,950,554 956,906
Citicorp Mezzanine Partners, L.P....................................... 267,981 43,094
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇................................. 299,967 ----
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Revocable Trust...................................... 85,350 ----
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇................................ 58,902 ----
▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.......................................... 57,913 ----
▇▇▇▇ ▇▇▇▇▇▇▇▇.......................................................... 53,514 ----
▇▇▇ ▇. ▇▇▇▇............................................................ 53,106 ----
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇................................. 50,000 ----
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust dated March 23, 2000............................. 20,357 ----
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust dated March 23, 2000............................. 20,357 ----
LS Parents Trust No. 00-1.............................................. 13,334 ----
ES Parents Trust No. 00-1.............................................. 13,334 ----
The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust dated
1/28/00 fbo ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇...................................... 13,333 ----
The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust dated
1/28/00 fbo ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇........................................ 13,333 ----
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust fbo ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
dated 12/23/99...................................................... 10,000 ----
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust fbo ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
dated 12/23/99...................................................... 10,000 ----
The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust dated
1/28/00 fbo ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇............ 5,333 ----
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇........................................................ 2,000 ----
▇▇▇▇▇▇▇▇ ▇▇▇▇ Irrevocable Trust Agreement dated 12/29/99............... 666 ----
▇▇▇▇▇ ▇▇▇▇ Irrevocable Trust Agreement dated 12/29/99.................. 666 ----
--------- ---------
Total............................................................... 7,000,000 1,000,000
========= =========
SCHEDULE B
Number of
Underwriter Firm Securities
----------- ---------------
Credit Suisse First Boston Corporation..................................................
FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc......................................................
▇▇▇▇▇▇ Brothers Inc.....................................................................
Chase Securities Inc....................................................................
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated......................................
▇▇ ▇▇▇▇▇ Securities Corporation.........................................................
Total................................................................................ 10,000,000
==========
SCHEDULE C
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trustee of the ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust dated 1/20/00 fbo ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trustee for the ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust dated 1/20/00 fbo ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust dated March 23, 2000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust dated March 23, 2000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee of the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust dated 1/20/00 fbo ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee of the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust dated 1/20/00 fbo ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Cinsy ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Revocable Trust
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust fbo ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ dated 12/23/99
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Trust fbo ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ dated 12/23/99
▇▇▇ ▇. ▇▇▇▇
▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. Trustee ▇▇▇▇▇▇▇▇ ▇▇▇▇ Irrevocable
Trust Agreement dated 12/29/99
▇. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. Trustee ▇▇▇▇▇ ▇▇▇▇ Irrevocable
Trust Agreement dated 12/29/99
▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
2
▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Trustee of LES GRAT No. 00-1
▇▇▇▇ ▇▇▇▇▇▇ Trustee as Trustee of LS Parents Trust No. 00-1
▇▇▇▇ ▇▇▇▇▇▇, Trustee, as Trustee of ES Parents Trust No. 00-1
Bank of America NA Trustee of the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust dated 1/28/00 fbo ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Bank of America NA Trustee of the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust dated 1/28/00 fbo ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Bank of America NA Trustee of the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trust dated 1/28/00 fbo ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
DLJSC fbo ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Account
#640571725 (▇▇▇ Shares)
Citicorp Venture Capital, Ltd.
CCT Partners VI, LP
Citicorp Mezzanine Partners, L.P.
[NYCORP;1103593.11:4258W:09/06/00-2:06p]