Exhibit 1.1
28,750,000 SHARES
AMIS HOLDINGS, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
September 23, 2003
CREDIT SUISSE FIRST BOSTON LLC
XXXXXXX, XXXXX & CO.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. AMIS Holdings, Inc., a Delaware corporation (the
"COMPANY"), the sole stockholder of AMI Semiconductor, Inc., a Delaware
corporation ("AMI"), proposes to issue and sell 25,000,000 shares of its Common
Stock, par value $0.01 per share (the "SECURITIES") (such 25,000,000 shares of
Securities being hereinafter referred to as the "FIRM SECURITIES"), to the
Underwriters (as defined below), for whom Credit Suisse First Boston LLC and
Xxxxxxx, Xxxxx & Co. are acting as representatives (the "REPRESENTATIVES"). The
Company also proposes to sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than 2,306,743 additional shares of its
Securities, and the stockholders listed in Schedule A hereto (the "SELLING
STOCKHOLDERS") also propose to sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than 1,443,257 additional outstanding
shares of the Securities, as set forth below (such 3,750,000 additional shares
being hereinafter referred to as the "OPTIONAL SECURITIES"). The Firm Securities
and the Optional Securities are herein collectively called the "OFFERED
SECURITIES". The Company and the Selling Stockholders hereby agree with the
several Underwriters named in Schedule B (the "UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-108028) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission (the "COMMISSION") and either (A)
has been declared effective under the Securities Act of 1933 (the "ACT")
and is not proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration statement (the
"INITIAL REGISTRATION STATEMENT") has been declared effective, either (A)
an additional registration statement (the "ADDITIONAL REGISTRATION
STATEMENT") relating to the Offered Securities may have been filed with
the Commission pursuant to Rule 462(b) ("RULE 462(B)") under the Act and,
if so filed, has become effective upon filing pursuant to such Rule and
the Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement or (B) such an additional registration
statement is proposed to be filed with the Commission pursuant to Rule
462(b) and will become effective upon filing pursuant to such Rule and
upon such filing the Offered Securities will all have been duly registered
under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration statement
has been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(C)") under the
Act or, in the case of the additional registration statement, Rule 462(b).
For purposes of this Agreement, "EFFECTIVE TIME" with respect to the
initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means
(A) if the Company has advised the Representatives that it does not
propose to amend such registration statement, the date and time as of
which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (B) if the Company has
advised the Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and time
as of which such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been filed
prior to the execution and delivery of this Agreement but the Company has
advised the Representatives that it proposes to file one, "EFFECTIVE TIME"
with respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
information contained in the additional registration statement (if any)
and deemed to be a part of the initial registration statement as of the
Effective Time of the additional registration statement pursuant to the
General Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(B)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as amended
at its Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all information
(if any) deemed to be a part of the additional registration statement as
of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to
as the "ADDITIONAL REGISTRATION STATEMENT". The Initial Registration
Statement and the Additional Registration are hereinafter referred to
collectively as the "REGISTRATION STATEMENTS" and individually as a
"REGISTRATION STATEMENT". The form of prospectus relating to the Offered
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("RULE 424(B)") under the Act or (if no such
filing is required) as included in a Registration Statement, is
hereinafter referred to as the "PROSPECTUS". No document has been or will
be prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
("RULES AND REGULATIONS") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, (B) on
the Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed or will conform, in all material respects
to the requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material fact and
did not omit, or will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading,
and (C) on the date of this Agreement, the Initial Registration Statement
and, if the Effective Time of the Additional Registration Statement is
prior to the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required) at
the Effective Date of the Additional Registration Statement in which the
Prospectus is included,
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each Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration Statement,
the Initial Registration Statement and the Prospectus will conform in all
material respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will include any untrue statement
of a material fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading,
and no Additional Registration Statement has been or will be filed. The
two preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except for such jurisdictions
where the failure to so qualify or to be in good standing would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(iv) Each subsidiary of the Company has been duly incorporated or
formed and is an existing corporation or other entity in good standing
under the laws of the jurisdiction of its incorporation or formation, with
power and authority to own its properties and conduct its business as
described in the Prospectus, except for such subsidiaries that (i) are
foreign subsidiaries, (ii) have, in the aggregate, no more than $1 million
of outstanding indebtedness and (iii) are incorporated or formed in such
jurisdictions where the failure to be so duly incorporated or formed or to
so exist in good standing would not, individually or in the aggregate,
result in a Material Adverse Effect; and each subsidiary of the Company is
duly qualified to do business as a foreign corporation or other entity 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 for such jurisdictions where the failure to so qualify or to be in
good standing would not, individually or in the aggregate, result in a
Material Adverse Effect; all of the issued and outstanding capital stock
or membership or other equity interests of each subsidiary of the Company
has been duly authorized and validly issued and is fully paid and
nonassessable; and, except as disclosed in the Prospectus, the capital
stock or membership or other equity interests of each subsidiary owned by
the Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects to title.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly issued,
fully paid and nonassessable and conform to the description thereof
contained in the Prospectus as of any Closing Date; and the stockholders
of the Company have no preemptive rights with respect to the Securities as
of any Closing Date.
(vi) None of the Company or any of its subsidiaries is in violation
of its respective charter, by-laws, limited liability company agreement or
other similar organizational document, as applicable, or in default in the
performance of any obligation, agreement, covenant or condition contained
in any indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries, taken as
a whole, to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or their respective
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property is bound, except where any such violation or default would not,
individually or in the aggregate, result in a Material Adverse Effect.
(vii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection
with this offering.
(viii) Except as provided for in the Shareholders' Agreement dated
as of December 21, 2000 among the Company, FP-McCartney, L.L.C., TBW LLC,
GA-TEK Inc. and certain other persons named therein or in joinder
agreements thereto as such will be amended as of the First Closing Date
(the "SHAREHOLDERS' AGREEMENT"), there are no contracts, agreements or
understandings between the Company and any person granting such person the
right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to require
the Company to include such securities with the Securities registered
pursuant to any Registration Statement.
(ix) The Securities have been approved for listing subject to notice
of issuance on The Nasdaq Stock Market's National Market.
(x) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the sale of the Offered Securities, except such as have
been obtained and made under the Act and such as may be required under
state securities laws, and except for the approval of the National
Association of Securities Dealers, Inc. required to be obtained by the
Underwriters.
(xi) The execution, delivery and performance of this Agreement, and
the consummation of the transactions herein contemplated will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, (i) any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company or
any of their properties, (ii) any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or any
such subsidiary is bound or to which any of the properties of the Company
or any such subsidiary, is subject, or (iii) the charter, bylaws, limited
liability company agreement or other similar organizational document of
the Company or any such subsidiary, except in the case of clauses (i) and
(ii), where any such breach, violation or default would not, individually
or in the aggregate, materially impair the Company's ability to meet its
obligations under this Agreement or result in a Material Adverse Effect,
and the Company has full power and authority to authorize, issue and sell
the Offered Securities as contemplated by this Agreement.
(xii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xiii) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects to title that would materially affect the value
thereof or materially interfere with the use made or proposed to be made
thereof by them; and except as disclosed in the Prospectus, the Company
and its subsidiaries hold any leased real or personal property under valid
and enforceable leases with no exceptions that would materially interfere
with the use made or proposed to be made thereof by them.
(xiv) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them,
except where the failure to possess such certificates, authorities or
permits would not, individually or in the aggregate, result in a Material
Adverse Effect, and have not received any notice of proceedings relating
to the revocation or modification of any such
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certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect.
(xv) Except as disclosed in the Prospectus, no labor dispute with
the employees of the Company or any subsidiary of the Company exists or,
to the knowledge of the Company, is imminent, except as would not,
individually or in the aggregate, have a Material Adverse Effect.
(xvi) The Company and its subsidiaries own, possess or can acquire
on reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, except where failure to own or possess or otherwise be
able to acquire such intellectual property rights would not, individually
or in the aggregate, result in a Material Adverse Effect, and have not
received any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(xvii) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(xviii) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company or any of
its subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the context of
the sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the knowledge of the Company,
contemplated.
(xix) The financial statements included in each Registration
Statement and the Prospectus present fairly the 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
financial statements have been prepared in conformity with generally
accepted accounting principles in the United States applied on a
consistent basis, and the assumptions used in preparing the pro forma
financial statements included in each Registration Statement and the
Prospectus provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical financial
statement amounts.
(xx) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus, there has
been no material adverse change, nor any development or event that will
result in a future material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the Prospectus, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock.
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(xxi) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "INVESTMENT
COMPANY" as defined in the Investment Company Act of 1940.
(b) Each Selling Stockholder severally represents and warrants to,
and agrees with, the several Underwriters that:
(i) Except as disclosed in the Prospectus, such Selling Stockholder
has and on each Closing Date hereinafter mentioned will have valid and
unencumbered title to the Offered Securities to be delivered by such
Selling Stockholder on such Closing Date and full right, power and
authority to enter into this Agreement and to sell, assign, transfer and
deliver the Offered Securities to be delivered by such Selling Stockholder
on such Closing Date hereunder; and upon the delivery of and payment for
the Offered Securities on each Closing Date hereunder the several
Underwriters will acquire valid and unencumbered title to the Offered
Securities to be delivered by such Selling Stockholder on such Closing
Date.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, and (C) on the date of this Agreement,
the Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and delivery
of this Agreement, the Additional Registration Statement each conforms,
and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if
no such filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, neither a
Registration Statement nor the Prospectus includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration Statement,
neither the Initial Registration Statement nor the Prospectus will include
any untrue statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading. The two preceding sentences apply only to the
extent that any statements in or omissions from a Registration Statement
or the Prospectus are based on written information furnished to the
Company by such Selling Stockholder specifically for use therein.
(iii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between such Selling Stockholder and any
person that would give rise to a valid claim against such Selling
Stockholder or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with this offering.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of $[ ] per share, the number of Firm
Securities set forth below the caption "Company" and opposite the name of such
Underwriter in Schedule B hereto.
The Company will deliver the Firm Securities to the Representatives for
the accounts of the Underwriters, against payment of the purchase price in
Federal (same day) funds by wire transfer to an account at a bank acceptable to
Credit Suisse First Boston LLC ("CSFB") and Xxxxxxx Xxxxx & Co. ("XXXXXXX
SACHS") drawn to the order of AMIS Holdings, Inc. in the case of the Firm
Securities, at the office of Cravath, Swaine & Xxxxx LLP, at 10:00 A.M., New
York time, on [ ], 2003, or at such other time not later than seven full
business days thereafter as CSFB, Xxxxxxx Sachs and the Company determine, such
time being herein referred to as the "FIRST CLOSING DATE". For purposes of Rule
15c6-1
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under the Securities Exchange Act of 1934, the First Closing Date (if later than
the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Offered Securities sold
pursuant to the offering. The certificates for the Firm Securities so to be
delivered will be in definitive form, in such denominations and registered in
such names as CSFB and Xxxxxxx Xxxxx request and will be made available for
checking and packaging at the above office of Cravath, Swaine & Xxxxx LLP at
least 24 hours prior to the First Closing Date.
Certificates in negotiable form for the Offered Securities to be sold by
the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement, under Custody Agreements (the "CUSTODY AGREEMENTS") made
with Xxxxx Fargo Bank Minnesota, National Association, as custodian (the
"CUSTODIAN"). Each Selling Stockholder agrees that the shares represented by the
certificates held in custody for the Selling Stockholders under such Custody
Agreements are subject to the interests of the Underwriters hereunder, that the
arrangements made by the Selling Stockholders for such custody are to that
extent irrevocable, and that the obligations of the Selling Stockholders
hereunder shall not be terminated by operation of law, whether by the death of
any individual Selling Stockholder or the occurrence of any other event, or in
the case of a trust, by the death of any trustee or trustees or the termination
of such trust. If any individual Selling Stockholder or any such trustee or
trustees should die, or if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Offered Securities
hereunder, certificates for such Offered Securities shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if
such death or other event or termination had not occurred, regardless of whether
or not the Custodian shall have received notice of such death or other event or
termination.
In addition, upon written notice from CSFB and Xxxxxxx Xxxxx given to the
Company and the Selling Stockholders from time to time but not more than 30 days
subsequent to the date of the Prospectus, the Underwriters may purchase all or
less than all of the Optional Securities at the purchase price per Security to
be paid for the Firm Securities. The Selling Stockholders agree, severally and
not jointly, to sell to the Underwriters the respective numbers of Optional
Securities obtained by multiplying the number of Optional Securities specified
in such notice by a fraction the numerator of which is the number of shares set
forth opposite the names of such Selling Stockholders in Schedule A hereto under
the caption "Number of Optional Securities to be Sold" and the denominator of
which is the total number of Optional Securities (subject to adjustment by CSFB
and Xxxxxxx Sachs to eliminate fractions). The Company agrees to sell to the
Underwriters 2,306,743 shares of Optional Securities following the purchase by
the Underwriters of an aggregate of 1,443,257 shares of Optional Securities from
the Selling Stockholders. Such Optional Securities shall be purchased from each
Selling Stockholder or the Company, as applicable, for the account of each
Underwriter in the same proportion as the number of Firm Securities set forth
opposite such Underwriter's name bears to the total number of Firm Securities
(subject to adjustment by CSFB and Xxxxxxx Xxxxx to eliminate fractions) and may
be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No
Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CSFB and Xxxxxxx Sachs to the Company and
the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFB
and Xxxxxxx Xxxxx but shall be not earlier than two business days (one business
day in the case of the First Closing Date) and not later than five full business
days after written notice of election to purchase Optional Securities is given.
The Company and the Custodian will deliver the Optional Securities being
purchased on each Optional Closing Date to the Representatives for the accounts
of the several Underwriters, against payment of the purchase price therefor in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to CSFB and Xxxxxxx Sachs drawn to the order of
[ ], at the above office of Cravath, Swaine & Xxxxx LLP. The certificates
for the Optional Securities being purchased on each Optional Closing Date will
be in definitive form, in such denominations and registered in such names as
CSFB and Xxxxxxx Sachs requests upon reasonable notice
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prior to such Optional Closing Date and will be made available for checking and
packaging at the above office of Cravath, Swaine & Xxxxx LLP at a reasonable
time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company and the Selling Stockholders agree with the several Underwriters that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFB and
Xxxxxxx Sachs, subparagraph (4)) of Rule 424(b) not later than the earlier
of (A) the second business day following the execution and delivery of
this Agreement or (B) the fifteenth business day after the Effective Date
of the Initial Registration Statement.
The Company will advise CSFB and Xxxxxxx Xxxxx promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and an
additional registration statement is necessary to register a portion of
the Offered Securities under the Act but the Effective Time thereof has
not occurred as of such execution and delivery, the Company will file the
additional registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance with
Rule 462(b) on or prior to 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, on or prior to the time the Prospectus is
printed and distributed to any Underwriter, or will make such filing at
such later date as shall have been consented to by CSFB or Xxxxxxx Sachs.
(b) The Company will advise CSFB and Xxxxxxx Xxxxx promptly of any
proposal to amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial Registration
Statement, the Additional Registration Statement (if any) or the
Prospectus and will not effect such amendment or supplementation without
CSFB's or Xxxxxxx Sachs' consent, which consent shall not be unreasonably
withheld; and the Company will also advise CSFB and Xxxxxxx Xxxxx promptly
of the effectiveness of each Registration Statement (if its Effective Time
is subsequent to the execution and delivery of this Agreement) and of any
amendment or supplementation of a Registration Statement or the Prospectus
and of the institution by the Commission of any stop order proceedings in
respect of a Registration Statement and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFB and Xxxxxxx Sachs of such event and will promptly prepare and
file with the Commission, at its own expense, an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance. Neither CSFB's or Xxxxxxx Xxxxx' consent to, nor
the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "AVAILABILITY DATE" means the
90th day after the end of the Company's fourth fiscal quarter.
8
(e) The Company will furnish to the Representatives conformed copies
of each Registration Statement (three of which will include all exhibits),
each related preliminary prospectus, and, so long as a prospectus relating
to the Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the Prospectus and all
amendments and supplements to such documents, in each case in such
quantities as CSFB and Xxxxxxx Sachs reasonably request. The Prospectus
shall be so furnished on or prior to 11:00 A.M., New York time, on the
second business day following the later of the execution and delivery of
this Agreement or the Effective Time of the Initial Registration
Statement. All other such documents shall be so furnished as soon as
available. The Company and the Selling Stockholders will pay the expenses
of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFB and
Xxxxxxx Xxxxx designate and will continue such qualifications in effect so
long as required for the distribution.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as delivered to the Company's stockholders after the
end of each fiscal year, a copy of its annual report to stockholders for
such year; and the Company will furnish to the Representatives (i) as soon
as delivered to the Company's stockholders, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under
the Securities Exchange Act of 1934 or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as CSFB
and Xxxxxxx Sachs may reasonably request and otherwise in compliance with
Regulation FD.
(h) For a period of 180 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act
relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
CSFB, except (i) the filing of a registration statement on Form S-8, (ii)
issuances of Securities pursuant to the exercise of warrants or options,
in each case outstanding on the date hereof, (iii) grants of employee
stock options or Securities pursuant to the terms of a plan disclosed in
the Prospectus and in effect on the date hereof, (iv) the issuance of
Securities in exchange for shares of the Series B Preferred Stock of the
Company (the "SERIES B PREFERRED") and of options to purchase Securities
in exchange for options to purchase shares of the Series B Preferred, in
each case as described in the Prospectus and (v) the issuance of up to
[$25,000,000] shares of Securities as consideration in connection with an
acquisition or acquisitions and the registration thereof under the Act;
provided that the recipient agrees in writing to be bound by the
restrictions set forth in this paragraph.
(i) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company and the Selling Stockholders, as the case may
be, under this Agreement, for any filing fees and other expenses
(including fees and disbursements of counsel) in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as CSFB and Xxxxxxx Xxxxx designate and the printing of
memoranda relating thereto, for the filing fee incident to the review by
the National Association of Securities Dealers, Inc. of the Offered
Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities, for any transfer taxes on the sale by the Selling Stockholders
of the Offered Securities to the Underwriters and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters.
(j) Each Selling Stockholder shall deliver to the Representatives an
executed "lock-up" agreement, substantially in the form attached hereto as
Exhibit A.
9
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of officers of the Company made pursuant to
Section 6(g), to the performance by the Company and the Selling Stockholders of
their obligations hereunder and to the following additional conditions
precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of Ernst & Young LLP
("E&Y") confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the financial statements and schedules examined
by them and included in the Registration Statements comply as to form in
all material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No.
100, Interim Financial Information, on the unaudited financial statements
included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements included in
the Registration Statements do not comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published Rules
and Regulations or any material modifications should be
made to such unaudited financial statements for them to
be in conformity with generally accepted accounting
principles;
(B) the unaudited consolidated revenue, net
operating income, net income (loss) and net loss per
common share (basic and diluted) amounts for the
six-month periods included in the Prospectus do not
agree with the amounts set forth in the unaudited
consolidated financial statements for those same periods
or were not determined on a basis substantially
consistent with that of the corresponding amounts in the
audited statements of income;
(C) at the date of the latest available balance
sheet read by such accountants, or at a subsequent
specified date not more than three business days prior
to the date of this Agreement, there was any change in
the capital stock or any increase in current liabilities
or long-term debt less current portion, of the Company
and its consolidated subsidiaries or, at the date of the
latest available balance sheet read by such accountants,
there was any decrease in consolidated current assets or
total assets, as compared with amounts shown on the
latest balance sheet included in the Prospectus; or
(D) for the period from the closing date of the
latest income statement included in the Prospectus to
the closing date of the latest available income
statement read by such accountants there were any
decreases, as compared with
10
the corresponding period of the previous year and with
the period of corresponding length ended the date of the
latest income statement included in the Prospectus, in
consolidated revenue or net operating income in the
total or per share amounts of consolidated income before
extraordinary items or net loss;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent that
such dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's accounting
system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such letter
and have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statements is subsequent to the execution and delivery of this
Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statements is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, "REGISTRATION STATEMENTS" shall
mean the Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective Time, and
(iii) "PROSPECTUS" shall mean the prospectus included in the Registration
Statements.
(b) The Representatives shall have received a letter, dated the date
of this Agreement, of Deloitte & Partners Bedrijfsrevisoren in form and
substance reasonably satisfactory to the Representatives concerning the
financial statements of the Mixed Signed Division of Alcatel
Microelectronics, NV and its subsidiary Mietec France, SAS.
(c) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or such later date as shall have been consented to
by CSFB and Xxxxxxx Xxxxx. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and delivery
of this Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or, if earlier,
the time the Prospectus is printed and distributed to any Underwriter, or
shall have occurred at such later date as shall have been consented to by
CSFB and Xxxxxxx Sachs. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with
the Rules and Regulations and Section 5(a) of this Agreement. Prior to
such Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of any Selling
Stockholder, the Company or the Representatives, shall be contemplated by
the Commission.
(d) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a future material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as one enterprise which, in the judgment of a
majority in interest of the Underwriters including the Representatives, is
material and adverse and makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for the
Offered Securities; (ii) any downgrading in the rating of any debt
securities or preferred stock of the Company or AMI by any "NATIONALLY
RECOGNIZED STATISTICAL RATING ORGANIZATION" (as defined
11
for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of
any debt securities or preferred stock of the Company or AMI (other than
an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any change
in U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the judgment of
a majority in interest of the Underwriters including the Representatives,
be likely to prejudice materially the success of the proposed issue, sale
or distribution of the Offered Securities, whether in the primary market
or in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally on
the New York Stock Exchange or any setting of minimum prices for trading
on such exchange; (v) or any suspension of trading of any securities of
the Company or AMI on any exchange or in the over-the-counter market; (vi)
any banking moratorium declared by U.S. Federal or, New York authorities;
(vii) any major disruption of settlements of securities or clearance
services in the United States or (viii) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United States,
any declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of the
Underwriters including the Representatives, the effect of any such attack,
outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(e) The Underwriters shall have received an opinion, dated as of the
Closing Date of Xxxxxxx De Busschop, Corporate Counsel of the Company,
substantially in the form set forth as Exhibit D hereto.
(f) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxx Xxxx & Xxxxxxxx, counsel for the Company,
substantially in the form set forth in Exhibit B hereto.
(g) The Representatives shall have received from Cravath, Swaine &
Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated
such Closing Date, with respect to the incorporation of the Company and
AMI, the validity of the Offered Securities delivered on such Closing
Date, the Registration Statements, the Prospectus and other related
matters as the Representatives may require, and the Company and the
Selling Stockholders shall have furnished to such counsel such documents
as they may reasonably request for the purpose of enabling them to pass
upon such matters.
(h) The Representatives shall have received a certificate, dated
such Closing Date, of the Chief Executive Officer and the Chief Financial
Officer of the Company which such officers, to the best of their knowledge
after reasonable investigation, shall state that: the representations and
warranties of the Company in this Agreement are true and correct; the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to such
Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance with
Rule 111(a) or (b) under the Act, prior to the time the Prospectus was
printed and distributed to any Underwriter; and, subsequent to the date of
the most recent financial statements in the Prospectus, there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole except as set forth in the Prospectus or
as described in such certificate.
(i) The Representatives shall have received a letter, dated such
Closing Date, of each of E&Y and Deloitte & Partners Bedrijfsrevisoren
which meets the requirements of subsections (a) and (b), respectively, of
this Section, except that the specified date referred to in such
subsection will be a date not more than three business days prior to such
Closing Date for the purposes of this subsection.
12
(j) On or prior to the date of this Agreement, the Representatives
shall have received lockup letters from each of executive officers and
directors of the Company and the equity holders and option holders of the
Company set forth on Exhibit C hereto.
(k) The Representatives shall have received the opinion contemplated
in the Power of Attorney executed and delivered by each Selling
Stockholder (the "POWER OF ATTORNEY") and an opinion, dated such Closing
Date, from each of (1) Xxxxx Xxxx & Xxxxxxxx, special outside counsel for
Selling Stockholders FP-McCartney, L.L.C., Xxxxxx X. Xxxxx, H. Xxxx
Xxxxxxxxx, Xxxxxxxxx Family Trust and Merchant Capital, Inc., (2) Xxxxx
Day, counsel for Selling Stockholder Japan Energy Electronic Materials
Inc., and (3) Dechert LLP, counsel for Selling Stockholders Citigroup
Venture Capital Equity Partners, L.P., CVC/SSB Employee Fund, L.P., CVC
Executive Fund, L.P. and CVC Executive Fund LLC in each case in form and
substance reasonably satisfactory to the Representatives.
(l) The Custodian will to deliver to CSFB or Xxxxxxx Xxxxx a letter
stating that they will deliver to each Selling Stockholder a United States
Treasury Department Form 1099 (or other applicable form or statement
specified by the United States Treasury Department regulations in lieu
thereof) on or before January 31 of the year following the date of this
Agreement.
(m) Each Selling Stockholder will deliver to the Representatives a
properly completed and executed United States Treasury Department Form W-9
(or other applicable form or statement specified by Treasury Department
regulations in lien thereof).
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFB and Xxxxxxx Sachs may in their sole
discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, members, directors and officers
and each person, if any who controls such Underwriter within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; provided further,
however, that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any such preliminary prospectus, the indemnity
agreement contained in this section (a) shall not inure to the benefit of any
Underwriter to the extent that the sale to the person asserting any such losses,
claims, damages or liabilities was an initial resale by such Underwriter and any
such loss, claim, damage or liability of such Underwriter 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, sufficient
copies of the Prospectus on a timely basis that the Company had previously
furnished to such Underwriter, and the Prospectus corrected such untrue
statement or omission or alleged untrue statement or omission.
(b) The Selling Stockholders, will severally and not jointly,
indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person who controls such
13
Underwriter within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that each Selling
Stockholder will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity
with written information furnished to the Company by an Underwriter
through the Representative specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection
(c) below; and provided further, however, that the liability under this
subsection of each Selling Stockholder shall be limited to an amount equal
to the aggregate gross proceeds after underwriting commissions and
discounts, but before expenses, to such Selling Stockholder from the sale
of the Optional Securities sold by such Selling Stockholder hereunder.
Except in the case of FP-McCartney, L.L.C., Citigroup Venture Capital
Equity Partners, L.P., CVC/SSB Employee Fund, L.P., CVC Executive Fund,
L.P., CVC Executive Fund LLC, and Japan Energy Electronic Materials Inc.,
the indemnity provided for in this paragraph (b) shall apply only to the
extent that any statements in or omissions from a Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus are based on written information furnished to the
Company by the applicable Selling Stockholder specifically for use
therein.
(c) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the Act
and each Selling Stockholder against any losses, claims, damages or
liabilities to which the Company or such Selling Stockholder may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company by
such Underwriter through the Representatives specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Company and each Selling Stockholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter: the
concession and reallowance figures appearing in the fourth paragraph under
the caption "Underwriting" and the information contained in the sixth
paragraph under the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under subsection (a), (b) or (c) above, notify the
indemnifying party of the commencement thereof; but the failure to notify
the indemnifying party shall not relieve it from any liability that it may
have under subsection (a), (b) or (c) above except to the extent that it
has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided further that the failure
to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than under
14
subsection (a), (b) or (c) above. In case any such action is brought
against any indemnified party and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. In no event shall any
indemnifying party be liable for fees and expenses of more than one
counsel except for any local counsel, separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances. 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 (i) settlement
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and
(ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a), (b) or (c) above (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the
Selling Stockholders on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company and
the Selling Stockholders bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Selling Stockholders or AMI or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The amount paid
by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (e) shall
be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), (i) no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission and (ii) the liability under this subsection of each Selling
Stockholder shall be limited to an amount equal to the aggregate gross
proceeds after underwriting commissions and discounts, but before
expenses, to such Selling Stockholder from the sale of the Optional
Securities sold by such Selling Stockholders hereunder. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations
in this subsection (e) to contribute are several in proportion to their
respective underwriting obligations and not joint.
15
(f) The obligations of the Company and the Selling Stockholders
under this Section shall be in addition to any liability which the Company
and the Selling Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any
Underwriter (as hereinafter defined) within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to (i) each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the
Company within the meaning of the Act and (ii) each person, if any, who
controls a Selling Stockholder within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFB and
Xxxxxxx Xxxxx may make arrangements satisfactory to the Company and the Selling
Stockholders for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by such
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFB and Xxxxxxx Sachs, the Company and the
Selling Stockholders for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Stockholders, except as provided in Section 9 (provided
that if such default occurs with respect to Optional Securities after the First
Closing Date, this Agreement will not terminate as to the Firm Securities or any
Optional Securities purchased prior to such termination). As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by them pursuant to Section 5 and the
respective obligations of the Company and the Underwriters pursuant to Section 7
shall remain in effect, and if any Offered Securities have been purchased
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv), (vi), (vii) or (viii)
of Section 6(d), the Company and the Selling Stockholders will, jointly and
severally, reimburse the Underwriters for all out-of-pocket expenses (including
fees and disbursements of counsel) reasonably incurred by them in connection
with the offering of the Offered Securities.
Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to the
Representatives, c/o Credit Suisse First Boston LLC, Eleven Madison Avenue, New
York, N.Y. 10010-3629, Attention: Transactions Advisory Group, or, if sent to
the Company, will be mailed, delivered or telegraphed and confirmed to it at
0000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxx 00000, Attention: Xxxxx Xxxxxx, with a copy
to Xxxxx Xxxx & Xxxxxxxx, 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000,
Attention: Xxxx F, Xxxxxxxxx, Esq., or if sent to the Selling Stockholders or
any of them, will be mailed, delivered or telegraphed and confirmed to Xxxxx
Fargo Bank Minnesota, National Association at Xxxxx Fargo Bank Minnesota,
16
National Association, 000 Xxxxx Xxxxxxx Xxxxxxxx, Xxxxx Xx. Xxxx, XX 00000;
provided, however, that any notice to an Underwriter pursuant to Section 7 will
be mailed, delivered or telegraphed and confirmed to such Underwriter.
10. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective personal representatives and
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligation hereunder.
11. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFB will be binding upon all the Underwriters. Xxxxx Fargo Bank Minnesota,
National Association will act for the Selling Stockholders in connection with
such transactions, and any action under or in respect of this Agreement taken by
Xxxxx Fargo Bank Minnesota, National Association] will be binding upon all the
Selling Stockholders.
12. 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.
13. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
The Company hereby submits 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.
17
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Company, the Selling Stockholders and the several Underwriters in accordance
with its terms.
AMIS HOLDINGS, INC.
By: ...................................
Name:
Title:
"SELLING STOCKHOLDER"
FP-MCCARTNEY, L.L.C.
By: ...................................
Name:
Title:
"SELLING STOCKHOLDER"
CITIGROUP VENTURE CAPITAL EQUITY
PARTNERS, L.P.
By: CVC Partners LLC, as general partner
By: Citigroup Venture Capital GP Holdings,
Ltd., as managing member
By: ...................................
Name:
Title:
CVC/SSB EMPLOYEE FUND, L.P.
By: CVC Partners LLC, as general partner
By: Citigroup Venture Capital GP Holdings,
Ltd., as managing member
By: ...................................
Name:
Title:
CVC EXECUTIVE FUND LLC
By: Citigroup Venture Capital GP Holdings,
Ltd., as managing member
By: ...................................
Name:
Title:
00
"XXXXXXX XXXXXXXXXXX"
XXXXX ENERGY ELECTRONIC MATERIALS INC.
By: ...................................
Name: Xxxxxxxx Xxxxxxx
Title: Associate Corporate Officer
"SELLING STOCKHOLDER"
MERCHANT CAPITAL, INC.
By: ...................................
Name: Xxxxxx Xxxxx
Title: Vice President
"SELLING STOCKHOLDER"
XXXXXX X. XXXXX
...................................
Xxxxxx X. Xxxxx
000 00xx Xxxxxx
Xxxxx Xxxxxx, XX 00000
"SELLING STOCKHOLDER"
H. XXXX XXXXXXXXX
...................................
H. Xxxx Xxxxxxxxx
00000 Xxxxx Xxxxxx Xxxx
Xxxxx, XX 00000
"SELLING STOCKHOLDER"
XXXXXXXXX FAMILY TRUST
...................................
c/o Xxxxxx Xxxxxxxxx
000 Xxxxxx Xxxxxx #0000
Xxxxx Xxxx Xxxxxxx, XX 00000
19
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
Credit Suisse First Boston LLC
Xxxxxxx, Xxxxx & Co.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters.
By Credit Suisse First Boston LLC
By .........................................
Name:
Title:
By Xxxxxxx, Sachs & Co.
By .........................................
Name:
Title:
20
SCHEDULE A
NUMBER OF
OPTIONAL
SECURITIES
SELLING STOCKHOLDER TO BE SOLD
------------------- ----------
FP-McCartney, L.L.C.
Citigroup Venture Capital Equity Partners, L.P.
CVC/SSB Employee Fund, L.P.
CVC Executive Fund, L.P.
CVC Executive Fund LLC
Japan Energy Electronic Materials Inc.
Merchant Capital, Inc.
Xxxxxx X. Xxxxx
H. Xxxx Xxxxxxxxx
Xxxxxxxxx Family Trust
Total
----------
Total..................................................
SCHEDULE B
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston LLC..............................
Xxxxxxx, Sachs & Co.........................................
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
UBS Securities LLC
Sound View Technology Corporation
U.S. Bancorp Xxxxx Xxxxxxx Inc.
----------
Total................................................. 25,000,000
EXHIBIT A
FORM OF SELLING STOCKHOLDER LOCK-UP
August , 2003
AMIS Holdings, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxx 00000
Credit Suisse First Boston LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx, Xxxxx & Co.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
As Representatives of the several Underwriters
Dear Sirs:
As an inducement to the Underwriters to execute the Underwriting Agreement,
pursuant to which an offering will be made that is intended to result in the
establishment of a public market for the Common Stock (the "Securities") of AMIS
Holdings, Inc., and any successor (by merger or otherwise) thereto (the
"Company"), the undersigned hereby agrees that from the date hereof and until
180 days after the public offering date set forth on the final prospectus used
to sell the Securities (the "Public Offering Date") pursuant to the Underwriting
Agreement, to which you are or expect to become parties, the undersigned will
not offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any shares of Securities or securities convertible into or
exchangeable or exercisable for any shares of Securities, enter into a
transaction which would have the same effect, or enter into any swap, hedge or
other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Securities, whether any such aforementioned
transaction is to be settled by such offer, sale, pledge or disposition, or to
enter into any such transaction, swap, hedge or other arrangement, without, in
each case, the prior written consent of Credit Suisse First Boston LLC. In
addition, the undersigned agrees that, without the prior written consent of
Credit Suisse First Boston LLC, it will not, during the period commencing on the
date hereof and ending 180 days after the Public Offering Date, make any demand
for or exercise any right with respect to, the registration of any Securities or
any security convertible into or exercisable or exchangeable for the Securities.
Notwithstanding the foregoing, the undersigned may transfer shares of Securities
or securities convertible into or exchangeable or exercisable for any shares
of Securities as a bona fide gift or gifts, provided that the donee or donees
thereof agree to be bound in writing by the restrictions set forth herein.
Any Securities received upon exercise of options granted to the undersigned
will also be subject to this Agreement. Any Securities acquired by the
undersigned in the open market will not be subject to this Agreement. A transfer
of Securities to a family member or trust may be made, provided the transferee
agrees to be bound in writing by the terms of this Agreement.
In furtherance of the foregoing, the Company and its transfer agent and
registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement.
This Agreement shall be binding on the undersigned and the successors,
heirs, personal representatives and assigns of the undersigned. This Agreement
shall lapse and become null and void if the Public Offering Date shall not have
occurred on or before January 31, 2004.
Very truly yours,
-----------------------
Name:
Address:
EXHIBIT B
FORM OF XXXXX XXXX & XXXXXXXX OPINION
(i) Each of the Company and AMI is an existing corporation in
good standing under the laws of the State of Delaware, with corporate
power and authority to own its properties and conduct its business as
described in the Prospectus; and each of the Company and AMI is duly
qualified to do business as a foreign corporation in good standing in
each jurisdiction listed on Exhibit A hereto.
(ii) Each of AMI Acquisition LLC and AMI Acquisition II LLC
has been duly formed and is an existing limited liability company in
good standing under the laws of the State of Delaware, with power and
authority to own its properties and conduct its business as described
in the Registration Statement.
(iii) The Offered Securities delivered on the date hereof and
all other outstanding shares of the Common Stock of the Company have
been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained in the
Prospectus; and, as of the First Closing Date, the stockholders of the
Company will have no preemptive rights with respect to the Offered
Securities.
(iv) Except as provided for in the Shareholders' Agreement
dated as of December 21, 2000 among the Company, FP-McCartney, L.L.C.,
TBW LLC, GA-TEK Inc. and certain other persons named therein or in
joinder agreements thereto, as such will be amended as of the First
Closing Date (the "SHAREHOLDERS' AGREEMENT"), there are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Offered Securities registered pursuant to any
registration statement.
(v) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus will not be, an
"investment company" as defined in the Investment Company Act of 1940,
as amended.
(vi) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency under United States
federal or New York state law that in our experience is normally
applicable to general business corporations in relation to transactions
of the type contemplated by the Underwriting Agreement is required for
the performance by the Company of its obligations under the
Underwriting Agreement, except such as have been obtained and made
under the Act and such as may be required under state securities laws.
(vii) The execution and delivery by the Company of, and the
issuance and sale of the Offered Securities pursuant to, the
Underwriting Agreement will not contravene any provision of applicable
United States federal law or New York state law that in our experience
is normally applicable to general business corporations in relation to
transactions of the type contemplated by the Underwriting Agreement, or
the Certificate of Incorporation or by-laws of the Company, or to our
knowledge, except as set forth in Exhibit B hereto, any agreement or
other instrument that is listed on Exhibit C hereto.
(viii) The Initial Registration Statement was declared
effective under the Act as of [ ], 2003[, the Additional Registration
Statement (if any) was filed and became effective under the Act as of
[ ], 2003], the Prospectus either was filed with the Commission
pursuant to the subparagraph of Rule 424(b) on [ ], 2003, or was
included in the Initial Registration Statement or the Additional
Registration Statement (as the case may be), and, to the best of our
knowledge, no stop order suspending the effectiveness of a Registration
Statement or any part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated under
the Act.
(ix) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
We have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to other matters in
the Registration Statement or the Prospectus. We have generally reviewed and
discussed with your representatives and with certain officers and employees of,
and counsel and independent public accountants for, the Company, the information
furnished, whether or not subject to our check and verification. On the basis of
such consideration, review and discussion, but without independent check or
verification except as stated above, nothing has come to our attention that
causes us to believe that (i) the Registration Statement and the Prospectus
(except for the financial statements, financial schedules and other financial
and statistical data included therein, as to which we express no belief) do not
comply as to form in all material respects with the Act and the applicable rules
and regulations of the Commission thereunder or (ii)(x) the Registration
Statement (except for the financial statements and financial schedules and other
financial data included therein, as to which we express no belief) at the time
the Registration Statement became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or (y) the Prospectus
(except for the financial statements, financial schedules and other financial
data included therein, as to which we express no belief) as of its date and as
of the date hereof contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
We have considered the matters required to be stated in the
Registration Statement and the Prospectus and the information contained therein.
We are of the opinion that the statements contained in the Registration
Statement and the Prospectus under the captions "Underwriting" and "Description
of Capital Stock," insofar as such statements constitute a summary of the
documents referred to therein, fairly present the information called for with
respect to such documents.
EXHIBIT C
CERTAIN SECURITY HOLDERS EXECUTING LOCK-UPS
FP-McCartney, L.L.C.
Citigroup Venture Capital Equity Partners, L.P.
CVC/SSB Employee Fund, L.P.
CVC Executive Fund, L.P.
CVC Executive Fund LLC
Natasha Foundation
Japan Energy Electronic Materials Inc.
Merchant Capital, Inc.
Xxxx Xxxxxxxxx
Xxxxxxxxx Family Trust
EXHIBIT D
CREDIT SUISSE FIRST BOSTON LLC
XXXXXXX, SACHS & Co.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston LLC,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 00000-0000
Vilvoorde, [ ], 2003
Dear Madam,
Dear Sir,
In connection with the execution and delivery of, and the consummation
of the transactions contemplated by, the Underwriting Agreement dated September
23, 2003, among AMIS Holdings, Inc., Credit Suisse First Boston LLC and Xxxxxxx,
Xxxxx & Co., as representatives of the several Underwriters (the "UNDERWRITING
AGREEMENT"), the this opinion is delivered pursuant to Section 6(e) of the
Underwriting Agreement.
OPINION
Each of AMI Semiconductor Belgium BVBA and AMI Semiconductor Leasing
BVBA (together, the "BVBA COMPANIES") have been duly incorporated and are
existing corporations, in good standing under the laws of Belgium with power and
authority to own properties and conduct their respective business, in each case
as described in the Prospectus; and all of the issued and outstanding stock of
each of the BVBA Companies has been duly authorized and validly issued, but is
not fully paid.
Neither of the BVBA Companies is in violation of its respective
by-laws.
There are no pending actions, suits or proceedings against or affecting
the BVBA Companies or their respective properties that, if determined adversely
to the BVBA Companies, are material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are threatened or, to the
best of my knowledge, contemplated.
This opinion is limited to the matters set forth herein and is based
and relies upon the current status of the Belgian law and existing facts.
Capitalized terms used but not defined herein shall have such meanings as are
ascribed to such terms in the Underwriting Agreement.
Sincerely yours,
Xxxxxxx De Busschop
Corporate General Counsel -- Europe
