EXHIBIT 4.02
EXECUTION COPY
INTERSIL CORPORATION
200,000 Units
consisting of
$200,000,000 Principal Amount of
13 1/4% Senior Subordinated Notes Due 2009 of Intersil Corporation
and Warrants to Purchase
5,555,560 Shares of Class A Common Stock of Intersil Holding Corporation
PURCHASE AGREEMENT
August 6, 1999
Credit Suisse First Boston Corporation
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
c/o Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
1. Introductory. Intersil Corporation, a Delaware corporation (the
"Company") and Intersil Holding Corporation, a Delaware corporation ("Intersil
Holding" and, together with the Company, the "Issuers"), propose, subject to the
terms and conditions stated herein, to issue and sell to the several initial
purchasers named in Schedule A hereto (the "Initial Purchasers") 200,000 units
(the "Units"), each Unit consisting of one of the Company's 13 1/4% Senior
Subordinated Notes Due 2009 in a principal amount of $1,000 (the "Notes") and
one Warrant (each a "Warrant") to purchase 27.7778 shares of Class A common
stock, par value $0.01 per share, of Intersil Holding. The Notes will be
unconditionally guaranteed (each, a "Guaranty") on a senior subordinated basis
by each of Intersil Holding and the Company's subsidiaries listed on Schedule B
hereto (the "Subsidiary Guarantors" and, together with Intersil Holding, the
"Guarantors"). The Notes will also be guaranteed by each existing and
subsequently organized domestic subsidiary of the Company that becomes a
guarantor pursuant to the Indenture (as defined). The Notes will be issued under
an indenture dated as of August 13, 1999 (the "Indenture"), among the Company,
the Guarantors and United States Trust Company of New York, as trustee (the
"Trustee"). The Warrants will be issued under a warrant agreement dated as of
August 13, 1999 (the "Warrant Agreement"), between Intersil Holding and United
States Trust Company of New York, as warrant agent (the "Warrant Agent"). The
Notes and the Guaranties are together referred to as the "Offered Notes". The
Units, the Offered Notes and the Warrants are collectively referred to herein as
the "Offered Securities". The United States Securities Act of 1933 is herein
referred to as the "Securities Act".
Pursuant to the Master Transaction Agreement dated June 2, 1999 (the
"Master Transaction Agreement") among Xxxxxx Corporation ("Xxxxxx"), Intersil
Holding and the Company, the following transactions (collectively, the
"Transactions") will occur concurrently with the consummation of the offering of
the Units (the "Offering"): (i) Xxxxxx will transfer to the Company and Intersil
Holding selected portions of the assets and certain of the liabilities of the
Xxxxxx semiconductor business in exchange for (a) $520.0 million in cash and (b)
a subordinated pay-in-kind promissory note of Intersil Holding in the principal
amount of $90.0 million; (ii) Xxxxxx will pay about
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$9.0 million in cash to Intersil Holding to purchase shares of its 12% Series A
Cumulative Compounding Preferred Stock and common stock (the "Holdings Preferred
Stock" and the "Holdings Common Stock", respectively); (iii) Intersil Holding
will sell to (a) Sterling Holding Company, LLC ("Sterling") shares of its
Holdings Preferred Stock and Holdings Common Stock and (b) senior management,
other key employees and certain other investors shares of Holdings Common Stock,
for a total of about $81.0 million in cash; (iv) Intersil Holding will
contribute cash in the amount of $90.0 million to the Company's capital as well
as certain assets with a fair market value of about $90.0 million; (v) Citicorp
Mezzanine Partners, L.P. ("Citicorp") will contribute $30.0 million in cash to
Intersil Holding in exchange for 13.5% subordinated pay-in-kind notes due 2010
of Intersil Holding and a warrant to purchase about 5.6 million shares of Class
A Holdings Common Stock; (vi) Intersil Holding will contribute cash in the
amount of $30.0 million received from Citicorp to the Company; and (vii) the
Company will borrow $220.0 million under a credit agreement and related
documentation among the Company, certain lenders parties thereto, and Credit
Suisse First Boston, Xxxxxxx Xxxxx Xxxxxx Inc. and Xxxxxx Guaranty Trust Company
of New York, as agents (the "Credit Agreement"), and receive the net proceeds
from the issuance of the Offered Securities.
Holders (including subsequent transferees) of the Notes will be entitled to
the benefit of a Registration Rights Agreement of even date herewith (the
"Registration Rights Agreement"), among the Company, the Guarantors and the
Initial Purchasers, pursuant to which the Company and the Guarantors will be
obligated to file with the Securities and Exchange Commission (the "Commission")
(i) a registration statement (the "Exchange Offer Registration Statement") under
the Securities Act registering an issue of senior subordinated notes of the
Company guaranteed by the Guarantors (the "Exchange Securities") which shall be
identical in all material respects to the Offered Notes (except that the
Exchange Securities will not contain terms with respect to transfer
restrictions) to be offered in exchange for the Offered Notes (the "Registered
Exchange Offer")and (ii) under certain circumstances specified in the
Registration Rights Agreement, a shelf registration statement pursuant to Rule
415 under the Securities Act.
This Agreement, the Indenture, the Registration Rights Agreement and the
Warrant Agreement are referred to herein collectively as the "Operative
Documents". The agreements relating to the Transactions are referred to herein
collectively as the "Transaction Documents".
The Issuers and the Guarantors jointly and severally agree with the Initial
Purchasers as follows:
2. Representations and Warranties of the Issuers and the Guarantors. As
used in this Section 2 only, references to the "Company", "Intersil Holding",
the "Issuers" or "its subsidiaries" shall mean the Company, Intersil Holding,
the Issuers or their subsidiaries, prior to the consummation of the
Transactions, and shall mean the Company, Intersil Holding, the Issuers or their
subsidiaries, including the purchased assets and the assumed liabilities of the
semiconductor business of Xxxxxx, effective upon the consummation of the
Transactions. The Issuers and the Subsidiary Guarantors jointly and severally
represent and warrant to, and agree with, the Initial Purchasers that:
(a) A confidential preliminary offering circular, dated July 21, 1999 (the
"Preliminary Offering Circular"), and a confidential
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offering circular, of even date herewith (the "Offering Circular") relating to
the Offered Securities to be offered by the Initial Purchasers have been
prepared by the Issuers. Such Preliminary Offering Circular and Offering
Circular, as supplemented as of the date of this Agreement, are hereinafter
collectively referred to as the "Offering Documents". As of their respective
dates and, in the case of the Offering Circular, as of the date of this
Agreement, no Offering Document includes any untrue statement of a material fact
or omits to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in or omissions
from an Offering Document based upon written information furnished to the
Issuers by any Initial Purchaser through Credit Suisse First Boston Corporation
("CSFBC") specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b) hereof. The
written information furnished by either of the Issuers and expressly identified
as the information required to be delivered to holders and prospective
purchasers of the Offered Securities pursuant to Section 4.02 of the Indenture
and in accordance with Rule 144A(d)(4) under the Securities Act (the "Additional
Issuer Information") does not include any 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. The
preceding sentence does not apply to statements in or omissions from the
Offering Documents based upon written information furnished to the Issuers by
any Initial Purchaser through CSFBC specifically for use therein, it being
understood and agreed that the only such information is that described as such
in Section 7(b) hereof.
(b) Each of the Issuers has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with the
corporate power and authority to own its properties and conduct its business as
described in the Offering Documents; and each of the Issuers is duly qualified
to do business as a foreign corporation and is 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 business, assets, operations, properties, financial condition, liabilities
or prospects of Intersil Holding, the Company and its subsidiaries taken as a
whole, or would not materially and adversely affect the ability of either of the
Issuers or any of the Subsidiary Guarantors to perform its obligations under the
Operative Documents and the Transaction Documents (a "Material Adverse Effect").
(c) Each of the Company's subsidiaries has been duly incorporated or formed
and is an existing corporation or limited liability company, as the case may be,
in good standing under the laws of the jurisdiction of its incorporation or
formation, with corporate or limited liability company power and authority to
own its properties and conduct its business as described in the Offering
Documents; each of the Company's subsidiaries is duly qualified to do business
as a foreign corporation or limited liability company 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 Material Adverse
Effect;
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(d) All of the issued and outstanding capital stock of the Issuers and each
of their subsidiaries that are corporations has been duly authorized and validly
issued and is fully paid and nonassessable; and the capital stock of each of the
Issuers and each of their subsidiaries that are corporations, owned directly or
indirectly, is owned free from liens, encumbrances and defects except liens and
encumbrances arising under or not prohibited by the Credit Agreement.
(e) As of the date hereof, the Company does not, and after giving effect to
the consummation of the Transactions the Company will not, have any significant
subsidiaries (as defined in Regulation S-X promulgated under the Securities Act)
other than the subsidiaries listed in Schedule B hereto and the Company's wholly
owned Malaysian subsidiary. As of the date hereof, Intersil Holding has no
direct subsidiaries other than the Company.
(f) The Offered Notes have been duly authorized by the Company and Intersil
Holding; as of the Closing Date (as hereinafter defined), each Guaranty will
have been duly authorized by the respective Subsidiary Guarantor; and the
Indenture has been duly authorized by the Company and Intersil Holding and as of
the Closing Date (as hereinafter defined), each of the Subsidiary Guarantors.
When the Offered Notes are delivered and paid for and authenticated by the
Trustee in accordance with the terms of this Agreement and the Indenture on the
Closing Date (as hereinafter defined): (i) such Offered Notes will have been
duly executed, authenticated, issued and delivered by the Company and each
Guarantor, will constitute valid and legally binding obligations of the Company
and each Guarantor, enforceable against the Company and each Guarantor in
accordance with their terms, subject, as to enforcement of remedies, to
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and will conform in all material respects to the
description thereof contained in the Offering Documents; and (ii) the Indenture
will have been duly executed and delivered by the Company and each of the
Guarantors, will constitute a valid and legally binding obligation of the
Company and each of the Guarantors, enforceable in accordance with its terms,
subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and will conform in all material respects to the description thereof
contained in the Offering Documents.
(g) The Units have been authorized by the Issuers. When Units are delivered
and paid for in accordance with the terms of this Agreement on the Closing Date
(as hereinafter defined), the Units will constitute valid and legally binding
obligations of the Issuers, enforceable against the Issuers in accordance with
their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and will conform in all material respects to the description thereof
contained in the Offering Documents.
(h) The Warrants delivered on the Closing Date (as defined hereinafter) are
convertible into shares of Class A Holdings Common Stock in accordance with the
terms of the Warrant Agreement; the shares of Class A Holdings Common Stock
initially issuable upon exercise of the Warrants have been duly authorized and
reserved for issuance upon such exercise and, when issued upon such exercise,
will be validly issued, fully paid and nonassessable; the outstanding shares of
Class A Holdings Common Stock have been duly authorized and validly issued, are
fully paid and nonassessable and conform in all material respects to the
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description thereof contained in the Offering Circular; and the stockholders of
Intersil Holding have no preemptive rights with respect to the Warrants or the
shares of Class A Holdings Common Stock, except as disclosed in the Offering
Circular;
(i) The Warrant Agreement has been duly authorized by Intersil Holding; and
when the Warrants are delivered and paid for pursuant to this Agreement on the
Closing Date, the Warrant Agreement will have been duly executed and delivered
by Intersil Holding, such Warrants will conform in all material respects to the
description thereof contained in the Offering Documents and the Warrant
Agreement and the Warrants will constitute valid and legally binding obligations
of Intersil Holding, 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
generally and to general equity principles.
(j) The Registration Rights Agreement has been duly authorized, executed
and delivered by the Company and Intersil Holding and, as of the Closing Date,
will have been duly authorized, executed and delivered by each of the Subsidiary
Guarantors and conforms in all material respects to the description thereof
contained in the Offering Documents. The Registration Rights Agreement
constitutes a valid and legally binding obligation of the Company and Intersil
Holding and, when executed and delivered by the Subsidiary Guarantors on the
Closing Date (as defined hereinafter), each of the Subsidiary Guarantors and is
enforceable in accordance with its terms, subject, as to enforcement of
remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, general equitable principles and the
discretion of courts in granting equitable remedies and except that any rights
to indemnity and contribution may be limited by Federal and state securities
laws and public policy considerations.
(k) Except as contemplated by this Agreement or disclosed in the Offering
Documents, there is no broker, finder or other party engaged by either of the
Issuers or any of their affiliates that is entitled to receive from either of
the Issuers, any of the Company's subsidiaries or the Initial Purchasers any
brokerage or finder's fee or other like payment as a result of the transactions
contemplated by this Agreement.
(l) Assuming the accuracy of the representations and warranties of the
Initial Purchasers contained in Section 4 of this Agreement, no consent,
approval, authorization or order of, or filing with, any governmental agency or
body or any court is required for the performance by any of the Issuers or the
Guarantors of its obligations under the Operative Documents or in connection
with the issuance and sale of the Offered Securities by the Issuers, except as
may be required under the Securities Act and the Rules and Regulations of the
Commission thereunder with respect to the Registration Rights Agreement and the
transactions contemplated thereunder and such as may be required by state
securities or blue sky laws in connection with the offer and sale of the Offered
Securities.
(m) The execution, delivery and performance by each of Xxxxxxxx, the
Issuers and the Guarantors of the Operative Documents and the Transaction
Documents (to the extent a party thereto) and the issuance and sale of the
Offered Securities by the Issuers and compliance with the terms and provisions
of the foregoing will not (i) result in a violation of any of the terms and
provisions of any
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material statute, rule or regulation, domestic or foreign, applicable to
Sterling, Intersil Holding, the Company or any subsidiary of the Company or any
order of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over Sterling, Intersil Holding, the Company or any
subsidiary of the Company or any of their properties; (ii) result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any agreement or instrument relating to borrowed money to which Sterling,
Intersil Holding, the Company or any such subsidiary is a party or by which
Sterling, Intersil Holding, the Company or any such subsidiary is bound or to
which any of the properties of Sterling, Intersil Holding, the Company or any
such subsidiary is subject or any other agreement or instrument to which
Sterling, Intersil Holding, the Company or any such subsidiary is a party or by
which Sterling, Intersil Holding, the Company or any such subsidiary is bound or
to which any of the properties of Sterling, Intersil Holding, the Company or any
such subsidiary is subject; or (iii) result in a violation of the charter or
by-laws of Sterling, Intersil Holding, the Company or any subsidiary of the
Company. The Issuers and each of the Guarantors have the power and authority to
authorize, issue and sell the Offered Securities as contemplated by this
Agreement.
(n) Each of the Transaction Documents (i) has been duly authorized by
Xxxxxxxx, Intersil Holding and the Company (to the extent a party thereto), (ii)
as of the Closing Date (as hereinafter defined), will have been executed and
delivered by Xxxxxxxx, the Company and Intersil Holding (to the extent a party
thereto) and, to the knowledge of the Company and the Guarantors, each of the
other parties thereto and authorized, executed and delivered by each of the
Subsidiary Guarantors (to the extent a party thereto) and (iii) conforms in all
material respects to the description thereof contained in the Offering
Documents. Each of the Transaction Documents will, when so executed, constitute
a valid and legally binding obligation of Sterling, Intersil Holding, the
Company and each of the Subsidiary Guarantors, as the case may be, and will be
enforceable in accordance with its terms, subject, as to enforcement of
remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and general equitable principles.
(o) To the knowledge of the Issuers and the Subsidiary Guarantors, the
execution, delivery and performance by each of the other parties to any
Transaction Document and compliance with the terms and provisions of any such
Transaction Document will not (i) result in a violation of the terms and
provisions of any material statute, rule or regulation, domestic or foreign,
applicable to any such party or any order of any governmental agency or body or
any court, domestic or foreign, having jurisdiction over any such party or any
of their respective properties; (ii) result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any agreement or
instrument relating to borrowed money to which any such party is a party or by
which any such party is bound or to which the properties of any such party is
subject or any other agreement or instrument known to the Company to which any
such party is a party or by which their respective properties are bound or
subject except, in the case of any such other agreement or instrument, where
such breach, violation or default would not have a Material Adverse Effect; or
(iii) result in a violation of any of the terms and provisions of the charter or
bylaws of any such party.
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(p) This Agreement has been duly authorized, executed and delivered by the
Issuers, and as of the Closing Date, will be duly authorized, executed and
delivered by each of the Subsidiary Guarantors.
(q) Except as disclosed in the Offering Documents, Intersil Holding, the
Company and its subsidiaries have good and marketable title to all real
properties and 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 Offering Documents, Intersil Holding, the Company and its
subsidiaries hold any leased real or personal property necessary to the conduct
of 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.
(r) Intersil Holding, the Company and its subsidiaries possess all material
certificates, authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or modification of
any such certificate, authority or permit.
(s) No material labor dispute with the employees of Intersil Holding, the
Company or any of its subsidiaries exists or, to the knowledge of the Issuers,
is imminent.
(t) Except as disclosed in the Offering Documents, Intersil Holding, the
Company and its subsidiaries own, possess or can acquire on reasonable terms the
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 have not received any notice of infringement of or
conflict with asserted rights of others.
(u) Except as disclosed in the Offering Documents, neither Intersil Holding
nor the Company or any of its subsidiaries (i) 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"), (ii) 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, (iii) is in receipt of any
written notice which asserts liability for any off-site disposal or
contamination pursuant to any environmental laws, or (iv) is in receipt of any
written notice which asserts a claim against any such party which relates to any
environmental laws, which violation, contamination, liability or claim referred
to in clauses (i), (ii), (iii) or (iv) would individually or in the aggregate
have a Material Adverse Effect; and the Issuers are 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.
(v) Except as disclosed in the Offering Documents, there are no actions,
suits or proceedings pending against any of Intersil Holding, the Company, any
of its subsidiaries or any of their respective
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properties that are reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect; and, to either of the Issuer's knowledge, no such
actions, suits or proceedings are threatened.
(w) The consolidated financial statements with respect to the Company
included in the Offering Documents present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as of the dates shown
and their results of operations and cash flows for the periods shown, and such
consolidated financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied on a
consistent basis; the unaudited pro forma consolidated financial statements
included in the Offering Documents comply as to form in all material respects
with generally accepted accounting principles and (A) management of the Issuers
believes the assumptions underlying the pro forma and supplemental adjustments
are reasonable, (B) such adjustments have been properly applied to the
historical amounts in the compilation of such statements and (C) such statements
fairly present, with respect to the Company and its subsidiaries, the combined
pro forma financial position and results of operations and the other information
purported to be shown therein at the respective dates or for the respective
periods therein specified.
(x) Except as disclosed in the Offering Documents, since the date of the
latest audited consolidated financial statements of the Company included in the
Offering Documents, there has been no material adverse change nor any
development or event involving a prospective material adverse change in the
business, assets, operations, properties, financial condition, liabilities or
prospects of the Company and its subsidiaries taken as a whole.
(y) Except as disclosed in the Offering Documents, since the date of the
latest audited consolidated financial statements included in the Offering
Documents, to the Company's knowledge, there has been no material adverse change
nor any development or event involving a prospective material adverse change in
the business, assets, operations, properties, financial condition, liabilities
or prospects of the Company and its subsidiaries taken as a whole, and, except
as disclosed in or contemplated by the Offering Documents, there has been no
dividend or distribution of any kind declared, paid or made by the on any class
of its capital stock.
(z) None of the Issuers or Subsidiary Guarantors is an open-end investment
company, unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the United States Investment
Company Act of 1940 (the "Investment Company Act"), or a closed-end investment
company required to be registered, but not registered, thereunder; and neither
of the Issuers nor any of the Subsidiary Guarantors is or, after giving effect
to the offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Offering Documents, will be an "investment
company" as defined in the Investment Company Act.
(aa) No securities of the same class (within the meaning of Rule 144A(d)(3)
under the Securities Act) as the Offered Securities are listed on any national
securities exchange registered under Section 6 of the United States Securities
Exchange Act of 1934 (the "Exchange Act") or quoted in a U.S. automated
interdealer quotation system.
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(bb) Assuming the accuracy of the representations and warranties of the
Initial Purchasers in Section 4 hereof, the offer and sale of Offered Securities
in the manner contemplated by this Agreement will be exempt from the
registration requirements of the Securities Act; and it is not necessary to
qualify an indenture in respect of the Offered Notes under the United States
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(cc) None of the Issuers, the Subsidiary Guarantors, any of their
affiliates, or any person acting on its or their behalf (i) has, within the
six-month period prior to the date hereof, offered or sold in the United States
or to any U.S. person (as such terms are defined in Regulation S under the
Securities Act) the Offered Securities or any security of the same class or
series as the Offered Securities or (ii) has offered or will offer or sell the
Offered Securities (A) in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) under the
Securities Act or (B) with respect to any such securities sold in reliance on
Rule 903 of Regulation S under the Securities Act, by means of any directed
selling efforts within the meaning of Rule 902(b) of Regulation S. The Issuers,
the Subsidiary Guarantors, their affiliates and any person acting on any of
their behalf (other than the Initial Purchasers) have complied and will comply
with the offering restrictions requirement of Regulation S. None of the Issuers
or the Subsidiary Guarantors has entered or will enter into any contractual
arrangement with respect to the distribution of the Offered Securities except
for this Agreement.
(dd) Neither the Company nor any of its affiliates has any current plans to
reincorporate or incorporate any of Xxxxxx Semiconductor, Inc., Xxxxxx
Semiconductor (Ohio), Inc. or Xxxxxx Semiconductor (Pennsylvania), Inc.
3. Purchase, Sale and Delivery of the Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Issuers agree to sell to the
Initial Purchasers, and the Initial Purchasers agree, severally and not jointly,
to purchase from the Issuers, at a purchase price of $970.00 per Unit plus
accrued interest (if any) from August 13, 1999 to the Closing Date (as
hereinafter defined), the respective number of Units set forth opposite the
names of the Purchasers on Schedule A hereto.
The Issuers will deliver against payment of the purchase price the Offered
Securities in the form of one or more permanent global Securities in definitive
form (the "Global Securities") deposited with the Trustee as custodian for The
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Interests in any permanent Global Securities will be held only
in book-entry form through DTC, except in the limited circumstances described in
the Offering Documents. Payment for the Offered Securities shall be made by the
Initial Purchasers in Federal (same-day) funds by wire transfer to an account
previously designated to CSFBC by the Issuers at a bank acceptable to CSFBC at
the office of Cravath, Swaine & Xxxxx at 10:00 a.m. (New York time), August 13,
1999, or at such other time not later than seven full business days thereafter
as CSFBC and the Issuers determine, such time being herein referred to as the
"Closing Date", against delivery to the Trustee as custodian for DTC of the
Global Securities representing all of the Offered Securities. The Global
Securities will be made available for checking at the above office of
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Xxxxxxx, Xxxxxx & Xxxxx not later than 1 p.m. on the business day prior
to the Closing Date.
4. Representations by the Initial Purchasers; Resale by the Initial
Purchasers. (a) Each Initial Purchaser severally represents and warrants to the
Issuers that it is an "accredited investor" within the meaning of Regulation D
under the Securities Act.
(b) Each Initial Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except in accordance with Regulation S or pursuant to an
exemption from the registration requirements of the Securities Act. Each Initial
Purchaser severally represents and agrees that it has offered and sold the
Offered Securities and will offer and sell the Offered Securities only in
accordance with Rule 903 or Rule 144A under the Securities Act ("Rule 144A").
Accordingly, neither any Initial Purchaser nor its affiliates, nor any persons
acting on its or their behalf, have engaged or will engage in any directed
selling efforts with respect to the Offered Securities, and each Initial
Purchaser, its affiliates and all persons acting on its or their behalf have
complied and will comply with the offering restrictions requirement of
Regulation S. Unless otherwise defined herein, terms used in this subsection (b)
have the meanings given to them by Regulation S.
(c) Each Initial Purchaser severally represents, warrants and agrees that
it and each of its affiliates has not entered and will not enter into any
contractual arrangement with respect to the distribution of the Offered
Securities except for any such arrangements with the other Purchasers or
affiliates of the other Purchasers or with the prior written consent of the
Issuers.
(d) Each Initial Purchaser severally agrees that it and each of its
affiliates or any one acting on its behalf will not offer or sell the Offered
Securities purchased hereby in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) under the
Securities Act, including but not limited to (i) any advertisement, article,
notice or other communication published in any newspaper, magazine or similar
media or broadcast over television or radio, or (ii) any seminar or meeting
whose attendees have been invited by any general solicitation or general
advertising. Each Initial Purchaser severally agrees, with respect to resales
made in reliance on Rule 144A of any of the Offered Securities, to deliver
either with the confirmation of such resale or otherwise prior to settlement of
such resale a notice to the effect that the resale of such Offered Securities
has been made in reliance upon the exemption from the registration requirements
of the Securities Act provided by Rule 144A.
(e) Each of the Initial Purchasers severally represents, warrants and
agrees that (i) it has not offered or sold, and prior to the date six months
after the date of issue of the Offered Securities will not offer or sell, any
Offered Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has complied and will comply with
all applicable provisions of the Public Offers of Securities
11
Regulations 1995 and the Financial Services Act 1986 with respect to anything
done by it in relation to the Offered Securities in, from or otherwise involving
the United Kingdom; and (iii) it has only issued or passed on, and will only
issue or pass on to any person, in the United Kingdom, any document received by
it in connection with the issuance of the Offered Securities to a person who is
of a kind described in Article 11(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1996 or is a person to whom such
document may otherwise lawfully be issued or passed on.
(f) Each Initial Purchaser represents and agrees that (i) it has not
solicited, and will not solicit, offers to purchase any of the Offered
Securities from, (ii) it has not sold, and will not sell, any of the Offered
Securities to, and (iii) it has not distributed, and will not distribute, the
Offering Documents to, any person or entity in any jurisdiction outside of the
United States except, in each case, in compliance in all material respects with
all applicable laws. For the purpose of this Agreement, "United States" means
the United States of America, its territories, its possessions and other areas
subject to its jurisdiction.
5. Certain Agreements of the Issuers. The Issuers agree with the Initial
Purchasers that:
(a) The Issuers will advise CSFBC promptly of any proposal to amend or
supplement the Offering Documents and will not effect such amendment or
supplementation without CSFBC's consent, which consent shall not be unreasonably
withheld. If, at any time prior to the completion of the resale of the Offered
Securities by the Initial Purchasers and prior to the completion of the
Registered Exchange Offer, any event occurs as a result of which the Offering
Documents as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, the Issuers promptly will notify CSFBC of such event and
promptly will prepare, at its own expense, an amendment or supplement which will
correct such statement or omission. Neither CSFBC's consent to, nor any Initial
Purchaser's delivery to offerees or investors of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(b) The Issuers will furnish to CSFBC copies of the Offering Documents and
all amendments and supplements to such documents, in each case as soon as
available and in such quantities as CSFBC reasonably requests, and the Issuers
will furnish to CSFBC on the date hereof three copies of the Offering Documents
signed by a duly authorized officer of each of the Issuers, one of which will
include the independent accountants' reports included in or requested in
connection with the Offering Circular manually signed by such independent
accountants. At any time when the Issuers are not subject to Section 13 or 15(d)
of the Exchange Act, for so long as any Offered Securities are outstanding, the
Issuers will promptly furnish or cause to be furnished to CSFBC (and, upon
request, to each of the other Initial Purchasers) and, upon request of holders
and prospective purchasers of the Offered Securities, to such holders and
purchasers, a reasonable number of copies of the information required to be
delivered to holders and prospective purchasers of the Offered Securities
pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto) in order to permit compliance with Rule 144A in connection with resales
by such holders of the Offered Securities. The Issuers will pay
12
the expenses of printing and distributing to the Initial Purchasers all
such documents.
(c) The Issuers will arrange, in cooperation with the Initial Purchasers
and their counsel, for the qualification of the Offered Securities for sale and
the determination of their eligibility for investment under the laws of such
jurisdictions in the United States and Canada as CSFBC designates and will
continue such qualifications in effect so long as required to complete the
resale of the Offered Securities by the Initial Purchasers; provided, however,
that the Issuers will not be required to qualify as a foreign corporation or to
file a general consent to service of process in any such jurisdiction.
(d) During the period of three years after the Closing Date, the Issuers
will furnish to CSFBC and, upon request, to each of the other Initial
Purchasers, as soon as practicable after the end of each fiscal year, a copy of
its annual report to shareholders for such year, if any such report is prepared
and circulated; and the Issuers will furnish to CSFBC and, upon request, to each
of the other Initial Purchasers (i) as soon as available, a copy of any reports,
notices or communications sent to securityholders generally, including if
applicable a copy of each report and any definitive proxy statement of either of
the Issuers filed with the Commission under the Exchange Act, and (ii) from time
to time, such other information concerning the Issuers as CSFBC may reasonably
request.
(e) During the period of two years after the Closing Date or, if earlier,
until such time as the Offered Securities are no longer restricted securities
(as defined in Rule 144 under the Securities Act), the Issuers will, upon
request, furnish to CSFBC, each of the other Initial Purchasers and any holder
of Offered Securities a copy of the restrictions on transfer applicable to the
Offered Securities.
(f) During the period of two years after the Closing Date or, if earlier,
until such time as the Offered Securities are no longer restricted securities
(as defined in Rule 144 under the Securities Act), the Issuers will not, and
will not permit any of their affiliates (as defined in Rule 144 under the
Securities Act) to, resell any of the Offered Securities that have been
reacquired by any of them.
(g) During the period of two years after the Closing Date or, if earlier,
until such time as the Offered Securities are no longer restricted securities
(as defined in Rule 144 under the Securities Act), neither of the Issuers will
be or become an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be registered under
Section 8 of the Investment Company Act or is, or will be or become, a
closed-end investment company required to be registered, but not registered,
under the Investment Company Act.
(h) The Issuers will pay all expenses incidental to the performance of its
obligations under the Operative Documents, including (i) the fees and expenses
of the Trustee and its professional advisers; (ii) all expenses in connection
with the execution, issue, authentication, packaging and initial delivery of the
Offered Securities and, as applicable, the Exchange Securities, the preparation
and printing of the Offered Securities, the Offering Documents and amendments
and supplements thereto, and any other document relating to the issuance, offer,
sale and delivery of the Offered Securities and, as applicable, the Exchange
Securities; (iii) the cost of qualifying the Offered Securities for trading in
The PortalSM Market ("PORTAL") of the
13
Nasdaq Stock Market, Inc. and any expenses incidental thereto; and (iv) the cost
of any advertising approved by the Company in connection with the issuance of
the Offered Securities. The Company will also pay or reimburse the Initial
Purchasers (to the extent incurred by the Initial Purchasers) for any reasonable
expenses (including the reasonable fees and disbursements of counsel) incurred
in connection with qualification of the Offered Securities or the Exchange
Securities for sale under the laws of such jurisdictions in the United States
and Canada as CSFBC designates and the printing of memoranda relating thereto,
for any fees charged by investment rating agencies for the rating of the Offered
Securities or the Exchange Securities, for all 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 from the Initial Purchasers and for expenses incurred in distributing
the Offering Documents (including any amendments and supplements thereto).
(i) In connection with the offering, until CSFBC shall have notified the
Issuers and the other Initial Purchasers of the completion of the resale of the
Offered Securities, neither of the Issuers nor any of their 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 of the Issuers nor any of their 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.
(j) For a period of 90 days after the date of the Offering Circular,
neither the Issuers nor any of their subsidiaries will offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, any United States
dollar-denominated debt securities issued or guaranteed by Intersil Holding, the
Company or any of its subsidiaries in any transaction involving a public
offering or a private placement in connection with intended resale under Rule
144A under the Securities Act and having a maturity of more than three years
from the date of issue or publicly disclose the intention to make any such
offer, sale, pledge or disposal, without the prior written consent of CSFBC.
Neither Intersil Holding, the Company nor any of its subsidiaries will at any
time offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any securities under circumstances where such offer, sale, pledge,
contract or disposition would cause the exemption afforded by Section 4(2) of
the Securities Act or the safe harbor of Regulation S thereunder to cease to be
applicable to the offer and sale of the Offered Securities.
(k) The Issuers will apply the net proceeds of the offering and the sale of
the Offered Securities in the manner set forth in the Offering Documents under
the caption "Use of Proceeds".
(l) The Issuers will use their best efforts in cooperation with the Initial
Purchasers to cause the Offered Securities to be eligible for the PORTAL trading
system of the National Association of Securities Dealers, Inc.
(m) The Issuers will cause each Offered Security to bear the legend set
forth in the form of the Note attached as Exhibit 1 to the Rule 144A/Regulation
S Appendix to the Indenture and/or the form of the Warrant attached as Exhibit A
to the Warrant Agreement, as the case may be, until such legend shall no longer
be necessary or advisable
14
because the Offered Securities are no longer subject to the restrictions
on transfer described therein.
(n) On the Closing Date, the Initial Purchasers shall receive one or more
counterparts of the Purchase Agreement and the Registration Rights Agreement
which shall have been duly executed and delivered by duly authorized officers of
each of the Subsidiary Guarantors.
6. Conditions of the Obligations of the Initial Purchasers. The obligations
of the Initial Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Issuers herein, to the accuracy, in all material respects, of the statements of
officers of the Issuers made pursuant to the provisions hereof, to the
performance, in all material respects, by the Issuers of its obligations
hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of this
Agreement, of Ernst & Young LLP confirming that they are independent public
accountants within the meaning of the Securities Act and the applicable
published rules and regulations thereunder ("Rules and Regulations") and to the
effect that:
(i) in their opinion the financial statements examined by them and
included in the Offering Documents comply as to form in all material
respects with the applicable accounting requirements of the Securities Act
and the related published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them to
believe that:
(A) at a specified date not more than three business days prior
to the date of this Agreement, there was any change in the capital
stock or any increase in short-term indebtedness or long-term debt of
the Company and its consolidated subsidiaries or, at such date, there
was any decrease in consolidated net current assets or net assets, as
compared with amounts shown on the latest balance sheet included in
the Offering Documents; or
(B) for the period from the closing date of the latest income
statement included in the Offering Documents to a specified date not
more than three business days prior to the date of this Agreement,
there were any decreases, as compared with the corresponding period of
the previous year, in consolidated net sales, net operating income
consolidated, net income or in the ratio of earnings to fixed charges;
except in all cases set forth in clauses (A) and (B) above for changes,
increases or decreases which are described in such letter;
(iii) in their opinion, with respect to the unaudited pro forma
condensed consolidated balance sheet as of July 2, 1999, and
15
the unaudited pro forma condensed consolidated statements of income for the
year ended July 2, 1999 included in the Offering Documents, (A) the
assumptions of each of the Issuer's management provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions described in the introductory information to these unaudited
pro forma condensed consolidated financial statements, (B) the related pro
forma adjustments give appropriate effect to those assumptions and (C) the
pro forma column reflects the proper application of those adjustments to
the historical financial statement amounts in these pro forma condensed
consolidated financial statements; and
(iv) on the basis of a reading of the pro forma condensed consolidated
financial statements referred to in 6(a)(iii) above and inquiries of
officials of the Issuers who have responsibility for financial and
accounting matters about whether these unaudited pro forma condensed
consolidated financial statements comply as to form in all material
respects with the applicable accounting requirements of rule 11-02 of
Regulation S-X, nothing came to their attention that caused them to believe
that these unaudited pro forma condensed consolidated financial statements
included in the Offering Documents do not comply as to form in all material
respects with the applicable accounting requirements of rule 11-02 of
Regulation S-X,
(v) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information contained
in the Offering Documents to the extent that such dollar amounts,
percentages and other financial information are derived from the general
accounting records of the Issuers and its subsidiaries subject to the
internal controls of the Issuers' accounting system or are derived directly
from such records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with such
results, except as otherwise specified in such letter.
(b) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (i) a change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls that would,
in the reasonable judgment of CSFBC, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Offered Securities,
whether in the primary market or in respect of dealings in the secondary market,
or (ii)(A) any change, or any development or event involving a prospective
change, in the business, assets, operations, properties, financial condition,
liabilities or prospects of the Issuers and their subsidiaries taken as a whole
which, in the reasonable judgment of CSFBC, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the offering or the
sale of and payment for the Offered Securities; (B) any downgrading in the
rating of any debt securities of either Issuer by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Securities Act) or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of either Issuer
(other than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating); (C) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any
16
setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of either Issuer on any exchange or in the
over-the-counter market; (D) any banking moratorium declared by U.S. Federal or
New York authorities; or (E) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if, in the
reasonable judgment of CSFBC, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the offering or sale of and payment for the Offered
Securities.
(c) Concurrently with or prior to the issue and sale of the Offered
Securities by the Issuers, the Transactions shall be consummated on terms that
conform in all material respects to the description thereof in the Offering
Documents and the Initial Purchasers shall have received true and correct copies
of all documents pertaining thereto and evidence reasonably satisfactory to the
Initial Purchasers of the consummation thereof.
(d) Concurrently with or prior to the issuance and sale of the Offered
Securities by the Issuers, the Company and Intersil Holding shall have entered
into the Credit Agreement and the initial borrowings thereunder shall have
occurred. The Initial Purchasers shall have received conformed counterparts
thereof and all other documents and agreements entered into and received
thereunder in connection with the closing of the Credit Agreement. There shall
exist at and as of the Closing Date (after giving effect to the transactions
contemplated by this Agreement and the Transactions) no condition that would
constitute a default (or an event that with notice or lapse of time, or both,
would constitute a default) under the Credit Agreement or any other Transaction
Document.
(e) The Initial Purchasers shall have received an opinion, dated the
Closing Date, of Dechert Price & Xxxxxx, counsel for the Issuers and the
Guarantors, to the effect that:
(i) each of the Issuers has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and corporate authority to own its properties and conduct
its business as described in the Offering Circular; and each of the Issuers
is duly qualified to do business as a foreign corporation and is in good
standing in the jurisdictions listed in such opinion;
(ii) each of the Company's domestic subsidiaries has been duly
incorporated or formed and is an existing corporation or limited liability
company in good standing under the laws of the jurisdiction of its
incorporation or formation, with corporate or limited liability company
power and authority to own its properties and conduct its business as
described in the Offering Circular; and each is duly qualified to do
business as a foreign corporation and is in good standing in the
jurisdictions listed in such opinion;
(iii) all of the issued and outstanding capital stock of the Issuers
and the Subsidiary Guarantors that are corporations has been duly
authorized and validly issued and is fully paid and nonassessable and
conforms in all material respects to the description thereof in the
Offering Circular;
17
(iv) insofar as is known to such counsel, to the extent the Offering
Circular contains summaries of statutes, legal proceedings or agreements to
which any of Intersil Holding, the Company or any of its subsidiaries is a
party (or provisions thereof) referred to therein, such statements are true
and correct in all material respects;
(v) the Issuers and the Subsidiary Guarantors have duly authorized the
execution, delivery and performance of the Offered Securities, Operative
Documents and the consummation of the transactions contemplated thereby;
(vi) the Operative Documents constitute valid and legally binding
obligations of the Issuers and the Subsidiary Guarantors, subject to
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, general equitable principles and the
discretion of courts in granting equitable remedies and except that any
rights to indemnity and contribution may be limited or prohibited by
Federal and state securities laws and public policy considerations; the
Offered Securities have been duly authorized and executed by the Issuers
and conform in all material respects to the description thereof in the
Offering Circular;
(vii) each of the Guaranties has been duly authorized and executed by
the respective Guarantor, and, assuming the Notes have been duly
authenticated in accordance with the terms of the Indenture and delivered
to and paid for by the Initial Purchasers in accordance with the terms of
this Agreement, the Offered Notes constitute valid and legally binding
obligations of the Company and each of the Guarantors, subject to
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, general equitable principles and the
discretion of the courts in granting equitable remedies;
(viii) the Warrants delivered on the Closing Date (as defined herein)
are convertible into shares of Class A common stock of Intersil Holding in
accordance with the term of the Warrant Agreement; the shares of Class A
common stock of Intersil Holding initially issuable upon exercise of the
Warrants have been duly authorized and reserved for issuance upon such
exercise and, when issued upon such exercise, will be validly issued, fully
paid and nonassessable; the outstanding shares of Class A common stock of
Intersil Holding have been duly authorized and validly issued, are fully
paid and nonassessable and conform in all material respects to the
description thereof contained in the Offering Circular; and the
stockholders of Intersil Holding have no preemptive rights with respect to
the Warrants or the shares of Class A common stock, except as disclosed in
the Offering Circular;
(ix) assuming the accuracy of the representation and warranty of the
Issuers and the Subsidiary Guarantors contained in Section 2(y) of this
Agreement and the accuracy of the representations and warranties of the
Initial Purchasers contained in Section 4 of this Agreement, no consent,
approval, authorization or order of, or filing with, any governmental
agency or body or any court is required for the performance by any of the
Issuers or Subsidiary Guarantors of its obligations under the Operative
Documents or in connection with the issuance and sale of the Offered Notes
Securities by the Issuers and the issuance of
18
the Guaranties by the Guarantors, except such as have been obtained or made
or as may be required under the Securities Act or the Exchange Act and the
rules and regulations of the Commission thereunder with respect to the
Registration Rights Agreement and the transactions contemplated thereunder
and such as may be required by state securities or blue sky laws in
connection with the offer and sale of the Offered Securities;
(x) the execution, delivery and performance, of the Operative
Documents and the Transaction Documents by Sterling, Intersil Holding, the
Company and the Subsidiary Guarantors (to the extent a party thereto) and
the issuance and sale of the Offered Securities by the Issuers and
compliance with the terms and provisions of the foregoing will not (A)
result in a breach or violation of any of the terms and provisions of (1)
any material New York or Federal statute, rule or regulation applicable to
any of Intersil Holding, the Company or any Subsidiary Guarantor or (2) any
order of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over any of Intersil Holding, the Company, any
Subsidiary Guarantor or any of their properties and which order is known to
such counsel, or, (B) result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any Transaction Documents
listed in such opinion, or (C) result in a violation of the charter or
by-laws of Intersil Holding, the Company or any Subsidiary Guarantor;
(xi) other than those already obtained or applied for, no consent,
approval, authorization or order of, or filing with, any New York or
Federal government agency or body or any New York or Federal court is
required in connection with the consummation of the transactions
contemplated by the Transaction Documents by Xxxxxxxx, the Issuers or any
of the Subsidiary Guarantors except for such consents, approvals,
authorizations, orders or filings the failure of which to obtain or make
would not result in a Material Adverse Effect;
(xii) each of the Transaction Documents has been duly authorized by
each of Sterling, the Issuers and the Subsidiary Guarantors (to the extent
a party thereto) and will, when duly executed, constitute a valid and
legally binding obligation of each of Sterling, the Issuers and the
Subsidiary Guarantors (to the extent a party thereto) and is enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights
generally, general equitable principles and the discretion of the courts in
granting equitable remedies;
(xiii) except as disclosed in the Offering Documents, insofar as is
known to such counsel, there are no actions, suits or proceedings
threatened or pending against Intersil Holding, the Company or any of its
subsidiaries or any of their respective properties that if determined
adversely to Intersil Holding, the Company or any such subsidiary would be
reasonably likely to have a Material Adverse Effect;
(xiv) neither of the Issuers nor any of the Subsidiary Guarantors is
an open-end investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under Section 8
of the Investment Company Act, or a
19
closed-end investment company required to be registered, but not
registered, thereunder; and neither of the Issuers nor any of the
Subsidiary Guarantors is or, after giving effect to the offering and sale
of the Offered Securities and the application of the proceeds thereof as
described in the Offering Documents, will be an "investment company" as
defined in the Investment Company Act;
(xv) assuming the accuracy of the representations and warranties of
the Initial Purchasers contained in Section 4 of this Agreement, the offer
and sale of the Offered Securities in the manner contemplated by this
Agreement will be exempt from the registration requirements of the
Securities Act (it being understood that no opinion shall be expressed as
to any subsequent resale of any Offered Securities); and it is not
necessary to qualify the Indenture under the Trust Indenture Act; and
(xvi) in addition, such counsel shall state that they have
participated in conferences with officers and other representatives of the
Issuers and the Subsidiary Guarantors and representatives of the Initial
Purchasers and its counsel during which the contents of the Offering
Circular and related matters were discussed and reviewed and, although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Offering Circular, on the basis of the information that was developed in
the course of the performance 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 the
Offering Circular or any amendment or supplement thereto made prior to the
Closing Date (other than the financial statements and schedules and the
other financial and statistical data included therein, as to which such
counsel need express no belief), as of the date of the Offering Circular or
any such amendment or supplement thereto and as of the Closing Date,
contained or contains any untrue statement of a material fact or omitted or
omits to state any material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
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 Initial Purchasers (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 General Corporation Law of
the State of Delaware and the laws of the State of New York, and the
federal laws of the United States. Such opinion may also be given by other
counsel satisfactory to the Initial Purchasers instead of Dechert Price &
Xxxxxx as it relates 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.
(f) The Initial Purchasers shall have received from Cravath, Swaine &
Xxxxx, counsel for the Initial Purchasers, such
20
opinion or opinions, dated the Closing Date, with respect to the validity of the
Offered Securities, the Offering Documents, the exemption from registration for
the offer and sale of the Offered Securities by the Issuers to the Initial
Purchasers and the resales by the Initial Purchasers as contemplated hereby and
other related matters as CSFBC may require, and the Issuers shall have furnished
to such counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(g) The Initial Purchasers shall have received a certificate:
(i) dated the Closing Date, of the Chief Executive Officer and a
principal financial or accounting officer of each of the Issuers and the
Subsidiary Guarantors in which such officers, in their capacity as such
officers, on behalf of the applicable Issuer or Guarantor, shall state that
the representations and warranties of that Issuer or Guarantor in this
Agreement are true and correct, that the applicable Issuer or Guarantor has
complied with all agreements and satisfied all conditions on their part to
be performed or satisfied hereunder at or prior to the Closing Date and, in
the case of the Company, that subsequent to the date of the most recent
consolidated financial statements of the Company in the Offering Circular
there has been no material adverse change nor any development or event
involving a prospective material adverse change, in the business, assets,
operations, properties, financial condition, liabilities or prospects of
the Company and its subsidiaries taken as a whole, except as set forth in
or contemplated by the Offering Circular or as described in such
certificate.
(h) The Initial Purchasers shall have received a letter, dated the 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 five days prior to the Closing Date for the purposes of
this subsection.
(i) The Company, the Guarantors and the Trustee shall have entered into the
Indenture, and the Initial Purchasers shall have received an executed
counterpart thereof.
(j) Each of the Subsidiary Guarantors shall have become a party to this
Agreement and the Registration Rights Agreement and shall be subject to all the
terms and provisions of each, and all representations and warranties regarding
the Guarantors contained herein shall be true and correct.
The Issuers will furnish the Initial Purchasers with such conformed copies
of such opinions, certificates, letters and documents as the Initial Purchasers
reasonably request. CSFBC may in its sole discretion waive on behalf of the
Initial Purchasers compliance with any conditions to the obligations of the
Initial Purchasers hereunder, whether in respect of the Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Issuers and the Subsidiary
Guarantors will, jointly and severally, indemnify and hold harmless each Initial
Purchaser, its partners, directors and officers and each person, if any, who
controls such Initial Purchaser within the meaning of Section 15 of the
Securities Act, against any
21
losses, claims, damages or liabilities, joint or several, to which such Initial
Purchaser may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any breach of any of the
representations and warranties of the Issuers or any of the Guarantors contained
herein or any untrue statement or alleged untrue statement of any material fact
contained in the Offering Documents, or any amendment or supplement thereto, or
Additional Issuer Information, 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 in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, including any losses,
claims, damages or liabilities arising out of or based upon the Issuers' failure
to perform its obligations under Section 5(a) of this Agreement, and will
reimburse each Initial Purchaser for any legal or other expenses reasonably
incurred by such Initial Purchaser in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Issuers and the Guarantors 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 Issuers by any Initial
Purchaser through CSFBC specifically for use therein, it being understood and
agreed that such information only consists of the information described as such
in subsection (b) below; and provided further, however, that with respect to any
untrue statement or omission or alleged untrue statement or omission made in the
Preliminary Offering Circular, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Initial Purchaser to the
extent that the sale to the person asserting any such losses, claims, damages or
liabilities was an initial resale by such Initial Purchaser and any such loss,
claim, damage or liability of such Initial Purchaser 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 to such person, a copy of
the Offering Circular if the Issuers had previously furnished copies thereof to
such Initial Purchaser and the Offering Circular corrected such untrue statement
or omission or alleged untrue statement or omission.
(b) The Initial Purchasers, severally and not jointly, will indemnify and
hold harmless the Guarantors, the Issuers, its directors and officers and each
person, if any, who controls either of the Issuers within the meaning of Section
15 of the Securities Act, against any losses, claims, damages or liabilities to
which either of the Issuers or a Guarantor, as the case may be, may become
subject, under the Securities Act or the Exchange 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 the Offering Documents, or any amendment or
supplement thereto or arise out of or are based upon the omission or the alleged
omission to state therein a material fact necessary in order 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 alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Issuers and the Guarantors by such Initial Purchaser through
CSFBC specifically for use therein, and will reimburse any legal or other
expenses reasonably
22
incurred by such Issuer or Guarantor 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 Initial Purchaser consists of the following information in the
Offering Documents furnished on behalf of the Initial Purchasers: the table, the
first sentence of the third paragraph, the third and fourth sentences of the
eighth paragraph, the ninth paragraph and the third, fourth and fifth sentences
of the last paragraph under the caption "Plan of Distribution"; provided,
however, that the Initial Purchasers shall not be liable for any losses, claims,
damages or liabilities arising out of or based upon either of the Issuer's
failure to perform its obligations under Section 5(a) of this Agreement.
(c) 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) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) 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 (which counsel shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party counsel, together with
one local counsel in each jurisdiction, shall act on behalf of all the
indemnified parties with respect to such action), 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 includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
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) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Issuers and the
Subsidiary Guarantors on the one hand and the Initial Purchasers 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 Issuers and the Subsidiary Guarantors
on the one hand and the Initial Purchasers 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 Issuers and the Subsidiary Guarantors on the
one hand
23
and the Initial Purchasers 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 Issuers and the Subsidiary
Guarantors bear to the total discounts and commissions received by the Initial
Purchasers from the Issuers under this Agreement. 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 one of the Issuers or a
Subsidiary Guarantor or the Initial Purchasers 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 (d) shall be deemed to include, subject to the
limitations on legal and other expenses set forth in Sections 7(a) and 7(b), 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 (d). Notwithstanding the provisions of this
subsection (d), no Initial Purchaser shall be required to contribute any amount
in excess of the amount by which the total price at which the Offered Securities
purchased by it were resold exceeds the amount of any damages which such Initial
Purchaser has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The Initial Purchasers'
obligations in this subsection (d) to contribute are several in proportion to
their respective purchase obligations and not joint.
(e) The obligations of the Issuers and the Subsidiary Guarantors under this
Section shall be in addition to any liability which the Issuers and the
Subsidiary Guarantors may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Initial Purchaser
within the meaning of the Securities Act or the Exchange Act; and the
obligations of the Initial Purchasers under this Section shall be in addition to
any liability which the respective Initial Purchaser may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls the Issuers and the Guarantors within the meaning of the Securities Act
or the Exchange Act.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Issuers or its officers and of the Initial Purchasers 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 Initial Purchaser, the Issuers 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 9 or if for any reason the purchase of the
Offered Securities by the Initial Purchasers is not consummated, the Issuers
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Issuers and the
Initial Purchasers pursuant to Section 7 shall remain in effect. If the purchase
of the Offered Securities by the Initial Purchasers is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 9 or the occurrence of any event specified in Section 6(b)(i) or
clause (C), (D) or (E) of Section 6(b)(ii), the Issuers will reimburse the
Initial Purchasers for all out-of-pocket expenses (including reasonable fees and
24
disbursements of counsel) reasonably incurred by them as Initial Purchasers in
connection with the offering of the Offered Securities.
9. Default of Initial Purchasers. If any Initial Purchaser defaults in its
obligation to purchase Offered Securities hereunder and the aggregate principal
amount of Offered Securities that such defaulting Initial Purchaser agreed but
failed to purchase does not, together with the aggregate principal amount of all
Offered Securities failed to be purchased by other Initial Purchasers, exceed
10% of the total number of Units, CSFBC may make arrangements satisfactory to
the Issuers for the purchase of such Offered Securities by other persons,
including any of the Initial Purchasers, but if no such arrangements are made by
the Closing Date, the non-defaulting Initial Purchasers shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Offered Securities that such defaulting Initial Purchasers agreed but failed
to purchase. If any Initial Purchaser or Initial Purchasers so default and the
total number of Units with respect to which such default or defaults occur
exceeds 10% of the total number of Units and arrangements satisfactory to CSFBC
and the Company 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 Initial Purchaser or the
Issuers, except as provided in Section 8. As used in this Agreement, the term
"Initial Purchaser" includes any person substituted for an Initial Purchaser
under this Section. Nothing herein will relieve a defaulting Initial Purchaser
from liability for its default.
10. Notices. All communications hereunder will be in writing and, if sent
to the Initial Purchasers will be mailed, delivered or telegraphed and confirmed
to the Initial Purchasers, c/o Credit Suisse First Boston Corporation, Xxxxxx
Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 10010-3629, Attention: Investment Banking
Department - Transactions Advisory Group, or, if sent to the Issuers, will be
mailed, delivered or telegraphed and confirmed to it at Intersil Corporation,
0000 Xxxx Xxx Xxxx XX, Xxxx Xxx, Xxxxxxx 00000, Attention: General Counsel, with
a copy to Dechert Price & Xxxxxx, 0000 Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, Attention: Xxxxxxxxxxx X. Xxxxxx; provided, however, that any notice to
an Initial Purchaser pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Initial Purchaser.
11. Representation of the Initial Purchasers. CSFBC will act for the
several Initial Purchasers in connection with this Purchase Agreement, and any
action under this Agreement taken by CSFBC will be binding upon all the Initial
Purchasers.
12. Representations and Agreements of the Guarantors. All representations
and warranties regarding a Guarantor shall be deemed to have been made as of,
and all agreements of the Guarantor shall be effective following, the date it
becomes a party hereto. Notwithstanding this section, this Agreement will be
binding as between the Issuers and the Initial Purchasers as of and following
the date hereof.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder, except that holders of Offered Securities shall be
entitled to enforce the
25
agreements for their benefit contained in the second and third sentences of
Section 5(b) hereof against the Issuers as if such holders were parties thereto.
14. 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.
15. 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 Issuers 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.
If the foregoing is in accordance with the Initial Purchasers'
understanding of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement among the
Issuers, the Guarantors and the Initial Purchasers in accordance with its terms.
Very truly yours,
INTERSIL CORPORATION,
as Issuer
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx
Chief Executive Officer
INTERSIL HOLDING CORPORATION,
as Issuer and as Guarantor,
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx
Chief Executive Officer
XXXXXX SEMICONDUCTOR, LLC,
XXXXXX SEMICONDUCTOR (OHIO), LLC,
XXXXXX SEMICONDUCTOR (PENNSYLVANIA), LLC,
CHOICE MICROSYSTEMS, INC.,
as Guarantors,
by /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx
Chief Executive Officer
Date: August 13, 1999
The foregoing Purchase Agreement is
hereby confirmed and accepted as of
the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX XXXXXX INC.
by: CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx
Managing Director
SCHEDULE A
Number of
Purchaser Units
--------- ---------
Credit Suisse First Boston Corporation $120,000
X. X. Xxxxxx Securities Inc. 40,000
Xxxxxxx Xxxxx Xxxxxx Inc. 40,000
Total $200,000
========
SCHEDULE B
Place of
Guarantor Formation
--------- ---------
Xxxxxx Semiconductor, LLC Delaware
Xxxxxx Semiconductor (Ohio), LLC Delaware
Xxxxxx Semiconductor (Pennsylvania), LLC Delaware
Choice Microsystems, Inc. Kansas
