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Execution Copy
AMENDMENT NO. 2
TO
SECURITIES PURCHASE AND HOLDERS AGREEMENT
AMENDMENT NO. 2 (this "Amendment"), dated as of May 31, 2000,
to the Securities Purchase and Holders Agreement, dated as of August 13, 1999,
by and among Intersil Holding Corporation, a Delaware corporation (the
"Company"), Sterling Holding Company, LLC, a Delaware limited liability company,
Manatee Investment Corporation, a Delaware corporation, Intersil Prism, LLC, a
Delaware limited liability company, Citicorp Mezzanine Partners, L.P., a
Delaware limited partnership, William N. Stout, and the individuals and trust(s)
listed as "Management Investors" on Schedule I thereto and who joined the
Original Stockholders Agreement, as provided therein, as "Management Investors"
(collectively, the "Management Investors"), as amended by Amendment No. 1 to the
Securities Purchase and Holders Agreement dated as of December 13, 1999 (the
"Original Stockholders Agreement").
Background
A. The parties hereto are parties to the Original Stockholders
Agreement.
B. The parties hereto desire to amend the Original Stockholders
Agreement, in accordance with the requirements of Section 9.3 thereof, and upon
the terms and conditions and in the manner set forth below.
Terms
In consideration of the mutual covenants contained herein and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms
used herein without definition shall have the meanings ascribed to them in the
Original Stockholders Agreement.
2. Amendments to Original Stockholders Agreement.
2.1. Section 1.1. Section 1.1 of the Original Stockholders Agreement
is hereby amended by replacing the definition of "Purchase Number" as follows:
"Purchase Number" has the meaning set forth in Section 7.2(a) of
this Agreement.
2.2. Sections 4.9, 5.5 and 5.7. Sections 4.9, 5.5 and 5.7 of the
Original Stockholders Agreement are hereby deleted in their entirety.
2.3. Section 5.8. Section 5.8 of the Original Stockholders Agreement
is hereby amended by adding a subsection (f) as follows:
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(f) Notwithstanding the foregoing, the employment of Chin Bin
Teh by ChipPAC shall not violate the provisions of this Section 5.8.
2.4. Section 6.2. Section 6.2 of the Original Stockholders Agreement
is hereby amended to read, in its entirety, as follows:
6.2 Directors and Voting Agreements. Each Investor shall take,
at any time and from time to time, all action necessary (including, without
limitation, voting the Class A Common Stock owned by him, her or it, calling
special meetings of stockholders and executing and delivering written consents)
to ensure that the Board of Directors of the Company is composed at all times of
up to seven persons, determined as follows: (i) the chief executive officer of
the Company; (ii) one individual designated by Sterling; (iii) up to four
independent directors, who shall be designated by Sterling (to the extent
permitted by applicable law as determined by Sterling in its sole discretion),
subject to the right of the holders of a majority of the outstanding shares of
Class A Common Stock (including any shares of Class A Common Stock held by
Sterling) to veto the election of any such independent director, provided that
in the event that Sterling concludes that it is unable to designate, or elects
not to designate for any reason, one or more of such independent directors or
the election of any such independent director is not approved by the holders of
a majority of the outstanding shares of Class A Common Stock, such
directorship(s) shall not be filled by the remaining members of the Company's
Board of Directors but shall remain vacant until the election of a director
designated by Sterling to fill such vacancy in accordance with this Section 6.2;
and (iv) at all times, but only at such times, when the Board of Directors of
the Company includes four independent directors determined in accordance with
clause (iii) of this Section 6.2, one additional individual designated by
Sterling, and provided that, notwithstanding clauses (i) through (iv) of this
Section 6.2, if Sterling at any time owns of record in excess of 50% of the
Class A Common Stock then outstanding, then the Board of Directors of the
Company shall consist of the chief executive officer of the Company and up to
six individuals designated by Sterling in its sole discretion. The initial
directors named pursuant to this Section 6.2 shall be Gregory L. Williams, James
A. Urry and Gary E. Gist.
2.5. Section 6.6. Section 6.6 of the Original Stockholders Agreement
is hereby amended to read, in its entirety, as follows:
6.6 Termination of Voting Agreements. The voting agreements in
Sections 6.2, 6.3, 6.4 and 6.5 shall terminate on the earlier of (i) the date
the Company consummates a Public Offering (if requested by the underwriter with
respect to such offering or in any event as to Harris) and (ii) the date when
Sterling and its Permitted Transferees and their respective Affiliates no longer
own at least 15% of the issued and outstanding Common Stock.
2.6. Section 7.1. The first sentence of Section 7.1 of the Original
Stockholders Agreement is hereby deleted in its entirety.
2.7. Section 7.2(a). Section 7.2(a), but not its subsections unless
otherwise provided herein, of the Original Stockholders Agreement is hereby
amended to read, in its entirety, as follows:
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(a) General Terms. In the event that on or prior to March 1,
2001, any Management Investor shall cease to be employed by the Company for any
reason (including, but not limited to, death, temporary or permanent disability,
retirement at age 62 or more under the Company's normal retirement policies,
resignation or termination by the Company with or without Cause), such
Management Investor (or such Management Investor's heirs, executors,
administrators, transferees, successors or assigns) shall give prompt notice to
the Company of such termination (except in the case of termination by the
Company with or without Cause), and the Company, or one or more designee(s)
selected by a majority of the members of the Board of Directors, shall have the
right and option at any time within 90 days after the later of the effective
date of such termination of employment (the "Termination Date") or the date of
the Company's receipt of the aforesaid notice, to purchase from such Management
Investor, any Person purchasing Securities hereunder on behalf of such
Management Investor, or such Management Investor's or Person's heirs, executors,
administrators, transferees, successors or assigns, as the case may be, 20% of
the Incentive Shares then owned by such Management Investor (such number of
Incentive Shares being the "Purchase Number") and such Management Investor's
Permitted Transferees at a purchase price equal to the Option Purchase Price as
defined in Section 7.2(a)(ii)(A) below. The Company or its designee(s) shall
give notice to the terminated Management Investor (or such Management Investor's
heirs, executors, administrators, transferees, successors or assigns) of its
intention to purchase Incentive Shares at any time not later than 90 days after
the Termination Date. (The right of the Company and its designee(s) set forth in
this Section 7.2 to purchase a terminated Management Investor's Incentive Shares
is hereinafter referred to as the "Purchase Option"). As a condition to
purchasing a Management Investor's Incentive Shares pursuant to this Section
7.2, any designee(s) selected by the Board of Directors must agree in writing to
assume the Company's obligations under Section 7.2(a)(iii). A designee's
agreement to assume such obligations will relieve the Company of its obligations
under Section 7.2(a)(iii) with regard to the particular terminated Management
Investor and such Management Investor shall thereafter have no recourse against
the Company under Section 7.2(a)(iii).
2.8. Section 7.2(a)(ii)(A). Section 7.2(a)(ii)(A) of the Original
Stockholders Agreement is hereby amended to read, in its entirety, as follows:
(ii) Option Purchase Price. (A) If the Management Investor
shall be terminated by the Company for any reason (including, but not limited
to, normal retirement at age 62 or more under the Company's normal retirement
policies, voluntary resignation or termination by the Company with or without
Cause), other than for death or temporary or permanent disability, the "Option
Purchase Price" for the Incentive Shares to be purchased from such Management
Investor or such Management Investor's Permitted Transferees pursuant to the
Purchase Option shall equal the price set forth in the table below opposite the
applicable Termination Date of such Management Investor:
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If the Termination Date Occurs: Option Purchase Price
------------------------------- ---------------------
On or after March 1, 2000 Adjusted Cost Price multiplied by
the Purchase Number
After March 1, 2001 Not applicable
If the Management Investor shall be terminated by the Company for death or
temporary or permanent disability prior to March 1, 2001, the Board of Directors
shall determine the Option Purchase Price applicable for the Incentive Shares to
be purchased from such Management Investor or such Management Investor's
Permitted Transferees pursuant to the Purchase Option and shall notify the
Company of such Option Purchase Price within 60 days after the Management
Investor's Termination Date; provided, however, that the Option Purchase Price
shall in no event be less than the Adjusted Cost Price multiplied by the
Purchase Number.
2.9. Section 7.2(a)(ii)(B). Section 7.2(a)(ii)(B) of the Original
Stockholders Agreement is hereby deleted in its entirety.
2.10. Section 7.2(a)(iv). Section 7.2(a) of the Original
Stockholders Agreement is hereby amended by adding a subsection (iv) as follows:
(iv) With respect solely to Chin Bin Teh, the reference in the
first sentence of Section 7.2(a) to cessation of the Management Investor's
employment with the Company is replaced with a reference to cessation of the
Management Investor's employment with ChipPAC and the corresponding reference to
the effective date of such termination of employment refers to the termination
of employment of such Management Investor with ChipPAC.
2.11. Section 7.3. Section 7.3 of the Original Stockholders
Agreement is hereby deleted in its entirety.
2.12. Section 7.6. Section 7.6 of the Original Stockholders
Agreement is hereby amended by adding a subsection (c) as follows:
(c) Notwithstanding the foregoing, the employment of Chin Bin
Teh by ChipPAC shall not violate the provisions of this Section 7.6.
2.13. Sections 7.7 and 7.9. Sections 7.7 and 7.9 of the Original
Stockholders Agreement are hereby deleted in their entirety.
2.14. Section 9.6. Section 9.6 of the Original Stockholders
Agreement is hereby amended to read, in its entirety, as follows:
9.6 Successors and Assigns; Entire Agreement. This Agreement
and all of the provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns and
executors, administrators and heirs; provided that, in the event Sterling
distributes the Shares held by it to its members, the rights of
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Sterling shall inure to the benefit of the distributee of a majority of the
Shares previously held by Sterling. Except for any agreement entered into
between the Company and a Management Investor with respect to the vesting of
Incentive Shares existing as of the date hereof which shall for such purpose
supersede this Agreement, this Agreement, together with the Registration Rights
Agreement, sets forth the entire agreement and understanding among the parties
as to the subject matter hereof and merges and supersedes all prior discussions,
agreements and understandings of any and every nature among them.
2.15. Section 9.21. Section 9.21 of the Original Stockholders
Agreement is hereby deleted in its entirety.
2.16. Schedule I. Schedule I to the Original Stockholders Agreement
is hereby replaced and superseded by Schedule I attached hereto. All references
to Schedule I in the Original Stockholders Agreement shall hereafter be deemed
to be references to the attached Schedule I.
3. Effectiveness. This Amendment shall take effect as of the date
first set forth above.
4. Miscellaneous.
4.1. Headings. The headings preceding the text of the sections and
subsections of this Amendment are for convenience of reference only and shall
not constitute a part of this Amendment, nor shall they affect its meaning,
construction or effect.
4.2. Counterparts. This Amendment may be executed in counterparts,
each of which when so executed shall be deemed to be an original, and all of
which taken together shall constitute one and the same instrument.
4.3. No Effect on Employment. Nothing herein contained shall confer
on any Management Investor the right to remain in the employ of the Company or
any of its subsidiaries or Affiliates.
4.4. Governing Law. This Amendment shall be governed by and
construed in accordance with the internal law of Delaware, without giving effect
to principles of conflicts of law.
4.5. Incorporation of Amendment. On and after the date hereof each
reference in the Original Stockholders Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import shall be a reference to
the Original Stockholders Agreement as amended hereby.
4.6. Continued Effectiveness of Original Stockholders Agreement.
Except as specifically amended above, all terms of the Original Stockholders
Agreement shall remain unchanged and in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment on the date first written above.
INTERSIL HOLDING CORPORATION
By: /s/ Gregory L. Williams
----------------------------------------
Name: Gregory L. Williams
Title: Chief Executive Officer
STERLING HOLDING COMPANY, LLC
By: /s/ James A. Urry
----------------------------------------
Name: James A. Urry
Title: Authorized Signatory
MANATEE INVESTMENT CORPORATION
By: /s/ David S. Wasserman
----------------------------------------
Name: David S. Wasserman
Title: Vice President-Treasurer
CITICORP MEZZANINE PARTNERS, L.P.
By: /s/ Richard E. Mayberry, Jr.
----------------------------------------
Name: Richard E. Mayberry, Jr.
Title: Managing Director
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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MANAGEMENT INVESTORS:
MICHAEL W. ALTHAR & MICHELLE J.
ALTHAR REVOCABLE TRUST
By: /s/ Michael W. Althar
----------------------------------------
Michael W. Althar, Trustee
Matthew Althar /s/ Michael Althar
--------------------------------------------
Matthew Althar
Adam Althar /s/ Michael Althar
--------------------------------------------
Adam Althar
/s/ Lawrence J. Ciaccia
--------------------------------------
Lawrence J. Ciaccia
/s/ Marcia Ciaccia
--------------------------------------
Marcia Ciaccia
LAWRENCE J. CIACCIA & MARCIA R.
CIACCIA TRUST DATED 1/20/00 fbo
MICHAEL L. CIACCIA
By: /s/ David S. Landeta
----------------------------------------
David S. Landeta, Trustee
LAWRENCE J. CIACCIA & MARCIA R.
CIACCIA TRUST DATED 1/20/00 fbo
LAUREN A. CIACCIA
By: /s/ David S. Landeta
----------------------------------------
David S. Landeta, Trustee
/s/ Joseph Ciaccia
--------------------------------------
Joseph Ciaccia
/s/ Julie B. Forbes
--------------------------------------
Julie B. Forbes
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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/s/ Peter K. Forbes
--------------------------------------
Peter K. Forbes
PETER K. FORBES & JULIE B. FORBES
TRUST DATED 1/20/00 fbo JENNIFER
LEIGH FORBES
By: /s/ Laura A. Forbes
----------------------------------------
Laura A. Forbes, Trustee
PETER K. FORBES & JULIE B. FORBES
TRUST DATED 1/20/00 fbo JAKE P.
FORBES
By: /s/ Laura A. Forbes
----------------------------------------
Laura A. Forbes, Trustee
/s/ Raymond T. Ford
--------------------------------------
Raymond T. Ford
/s/ Sandra Ford
--------------------------------------
Sandra Ford
RAYMOND T. FORD AND SANDRA L.
FORD IRREVOCABLE AGREEMENT OF
TRUST DATED JANUARY 31, 2000
BETWEEN RAYMOND T. FORD AND
SANDRA L. FORD, AS SETTLORS AND
WILLIAM FORD, AS TRUSTEE
By: /s/ William Ford
----------------------------------------
William Ford, Trustee
MITCHELL FORD
By: /s/ William Ford
----------------------------------------
William Ford, Custodian
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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CAMERON FORD
By: /s/ William Ford
----------------------------------------
William Ford, Custodian
MEGAN FORD
By: /s/ Robert Ford
----------------------------------------
Robert Ford, Custodian
CASSANDRA FORD
By: /s/ Robert Ford
----------------------------------------
Robert Ford, Custodian
DANIELLE MAZUR
By: /s/ Sheila Mazur
----------------------------------------
Sheila Mazur, Custodian
NICHOLAS MAZUR
By: /s/ Sheila Mazur
----------------------------------------
Sheila Mazur, Custodian
RAYMOND T. FORD IRA ROLLOVER
DATED 10/14/98
BY: DEAN WITTER REYNOLDS
CUSTODIAN
By:
----------------------------------------
Name:
Financial Advisor
/s/ Rick Furtney
--------------------------------------
Rick Furtney
/s/ George Gidzinski
--------------------------------------
George Gidzinski
/s/ Daniel J. Heneghan
--------------------------------------
Daniel J. Heneghan
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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/s/ Barbara Heneghan
-------------------------------------
Barbara Heneghan
/s/ Jeffrey G. Mansmann
--------------------------------------
Jeffrey G. Mansmann
/s/ Patricia Mansmann
--------------------------------------
Patricia Mansmann
IRREVOCABLE TRUST AGREEMENT
DATED 1/21/00
By: /s/ H. Joseph Mansmann
----------------------------------------
H. Joseph Mansmann, Trustee
By: /s/ V. Laverne Mansmann
----------------------------------------
V. Laverne Mansmann, Trustee
/s/ Karl McCalley
-------------------------------------
Karl McCalley
/s/ Phillip K. McCalley
-------------------------------------
Phillip K. McCalley
/s/ Cinsy McCalley Krehbiel
-------------------------------------
Cinsy McCalley Krehbiel
/s/ Stephen M. Moran
-------------------------------------
Stephen M. Moran
W. RUSSELL MORCOM
REVOCABLE TRUST
By: /s/ W. Russell Morcom
----------------------------------------
W. Russell Morcom, Trustee
W. RUSSELL MORCOM IRREVOCABLE
TRUST fbo TODD RUSSELL MORCOM
DATED 12/23/99
By: /s/ Thomas A. Morcom
----------------------------------------
Thomas A. Morcom, Trustee
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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W. RUSSELL MORCOM IRREVOCABLE
TRUST fbo BRAD ALLEN MORCOM
DATED 12/23/99
By: /s/ Thomas A. Morcom
----------------------------------------
Thomas A. Morcom, Trustee
/s/ Ray D. Odom
--------------------------------------
Ray D. Odom
JENNIFER ODOM IRREVOCABLE
TRUST AGREEMENT DATED 12/29/99
By: /s/ A. Van Catteron, Jr.
----------------------------------------
A. Van Catteron, Jr., Trustee
BRIAN ODOM IRREVOCABLE TRUST
AGREEMENT DATED 12/29/99
By: /s/ A. Van Catteron, Jr.
----------------------------------------
A. Van Catteron, Jr., Trustee
/s/ Larry Sims
--------------------------------------
Larry Sims
/s/ Elizabeth Sims
--------------------------------------
Elizabeth Sims
LES GRAT No. 00-1
By: /s/ Larry Sims
----------------------------------------
Larry Sims, Trustee
By: /s/ Elizabeth Sims
----------------------------------------
Elizabeth Sims, Trustee
LS PARENTS TRUST 00-1
By: /s/ Gary Martin
----------------------------------------
Gary Martin, Trustee
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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ES PARENTS TRUST No. 00-1
By: /s/ Gary Martin
----------------------------------------
Gary Martin, Trustee
/s/ Chin Bin The
--------------------------------------
Chin Bin The
/s/ Stephen Titus
--------------------------------------
Stephen Titus
/s/ Peter A. Titus
--------------------------------------
Peter A. Titus
/s/ Leah A. Titus
--------------------------------------
Leah A. Titus
GREGORY L. WILLIAMS AND
LINDA M. WILLIAMS TRUST DATED
1/28/00 fbo BROOKE M. WILLIAMS
By: Bank of America N.A., Trustee
By: /s/ Michael Cook
-----------------------------
Name: Michael Cook
Title: Authorized Signatory
GREGORY L. WILLIAMS AND LINDA
WILLIAMS TRUST DATED 1/28/00 fbo
TINA L. WILLIAMS
BY: BANK OF AMERICA N.A.,
TRUSTEE
By: /s/ Michael Cook
-----------------------------
Name: Michael Cook
Title: Authorized Signatory
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
<PAGE>
GREGORY L. WILLIAMS AND LINDA
WILLIAMS TRUST DATED 1/28/00 fbo
MILLARD L. WILLIAMS AND
JEANETTE M. WILLIAMS
BY: BANK OF AMERICA N.A.,
TRUSTEE
By: /s/ Michael Cook
-----------------------------
Name: Michael Cook
Title: Authorized Signatory
/s/ Gregory L. Williams
-------------------------------------
Gregory L. Williams
/s/ Linda M. Williams
-------------------------------------
Linda M. Williams
GREGORY L. WILLIAMS IRA ACCOUNT
By: DLJSC
By:
-----------------------------
Name:
Title:
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Schedule I
Management Investors
Incentive Shares Incentive Shares*
----------------- -----------------
Gregory L. Williams........... 3,000,000 2,000,000
Michael W. Althar............. 300,000 200,000
Lawrence J. Ciaccia........... 500,000 333,335
Raymond T. Ford............... 176,429.60 117,625
Raymond T. Ford IRA........... 123,570.40 82,380
Julie B. Forbes............... 300,000 200,000
Rick Furtney.................. 150,000 100,000
George Gidzinski.............. 600,000 400,000
Daniel J. Heneghan............ 500,000 333,333
Jeffrey G. Mansmann........... 150,000 100,000
Karl McCalley................. 200,000 133,333
Stephen Moran................. 50,000 33,334
W. Russell Morcom............. 500,000 333,333
Ray D. Odom................... 500,000 333,334
Larry Sims.................... 600,000 400,000
CB Teh........................ 200,000 133,333
Stephen Titus................. 300,000 200,000
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* Giving effect to the Company's 1 for 1.5 reverse stock split effective on
February 23, 2000.
