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, Xxxxxxx X. Xxxxx, 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:
(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 Xxxxxxx X. Xxxxxxxx, Xxxxx
X. Xxxx and Xxxx X. Xxxx.
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 Xxxxxx) 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 Xxxxx 0, 0000 Xxxxxxxx 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/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
STERLING HOLDING COMPANY, LLC
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Authorized Signatory
MANATEE INVESTMENT CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President-Treasurer
CITICORP MEZZANINE PARTNERS, L.P.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Managing Director
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
MANAGEMENT INVESTORS:
XXXXXXX X. XXXXXX & XXXXXXXX X.
XXXXXX REVOCABLE TRUST
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx, Trustee
Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxx
Xxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Xxxx Xxxxxx
/s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Xxxxxx Xxxxxxx
XXXXXXXX X. XXXXXXX & XXXXXX X.
XXXXXXX TRUST DATED 1/20/00 fbo
XXXXXXX X. XXXXXXX
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx, Trustee
XXXXXXXX X. XXXXXXX & XXXXXX X.
XXXXXXX TRUST DATED 1/20/00 fbo
XXXXXX X. XXXXXXX
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx, Trustee
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx
XXXXX X. XXXXXX & XXXXX X. XXXXXX
TRUST DATED 1/20/00 fbo XXXXXXXX
XXXXX XXXXXX
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx, Trustee
XXXXX X. XXXXXX & XXXXX X. XXXXXX
TRUST DATED 1/20/00 fbo XXXX X.
XXXXXX
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx, Trustee
/s/ Xxxxxxx X. Xxxx
--------------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxxxx Xxxx
--------------------------------------
Xxxxxx Xxxx
XXXXXXX X. XXXX AND XXXXXX X.
XXXX IRREVOCABLE AGREEMENT OF
TRUST DATED JANUARY 31, 2000
BETWEEN XXXXXXX X. XXXX AND
XXXXXX X. XXXX, AS SETTLORS AND
XXXXXXX XXXX, AS TRUSTEE
By: /s/ Xxxxxxx Xxxx
----------------------------------------
Xxxxxxx Xxxx, Trustee
XXXXXXXX XXXX
By: /s/ Xxxxxxx Xxxx
----------------------------------------
Xxxxxxx Xxxx, Custodian
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
XXXXXXX XXXX
By: /s/ Xxxxxxx Xxxx
----------------------------------------
Xxxxxxx Xxxx, Custodian
XXXXX XXXX
By: /s/ Xxxxxx Xxxx
----------------------------------------
Xxxxxx Xxxx, Custodian
XXXXXXXXX XXXX
By: /s/ Xxxxxx Xxxx
----------------------------------------
Xxxxxx Xxxx, Custodian
XXXXXXXX XXXXX
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Xxxxxx Xxxxx, Custodian
XXXXXXXX XXXXX
By: /s/ Xxxxxx Xxxxx
----------------------------------------
Xxxxxx Xxxxx, Custodian
XXXXXXX X. XXXX XXX ROLLOVER
DATED 10/14/98
BY: XXXX XXXXXX XXXXXXXX
CUSTODIAN
By:
----------------------------------------
Name:
Financial Advisor
/s/ Xxxx Xxxxxxx
--------------------------------------
Xxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxx
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
/s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxxx Xxxxxxxx
--------------------------------------
Xxxxxxxx Xxxxxxxx
IRREVOCABLE TRUST AGREEMENT
DATED 1/21/00
By: /s/ H. Xxxxxx Xxxxxxxx
----------------------------------------
H. Xxxxxx Xxxxxxxx, Trustee
By: /s/ V. Xxxxxxx Xxxxxxxx
----------------------------------------
V. Xxxxxxx Xxxxxxxx, Trustee
/s/ Xxxx XxXxxxxx
-------------------------------------
Xxxx XxXxxxxx
/s/ Xxxxxxx X. XxXxxxxx
-------------------------------------
Xxxxxxx X. XxXxxxxx
/s/ Cinsy XxXxxxxx Xxxxxxxx
-------------------------------------
Cinsy XxXxxxxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
W. XXXXXXX XXXXXX
REVOCABLE TRUST
By: /s/ W. Xxxxxxx Xxxxxx
----------------------------------------
W. Xxxxxxx Xxxxxx, Trustee
W. XXXXXXX XXXXXX IRREVOCABLE
TRUST fbo XXXX XXXXXXX XXXXXX
DATED 12/23/99
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx, Trustee
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
W. XXXXXXX XXXXXX IRREVOCABLE
TRUST fbo XXXX XXXXX XXXXXX
DATED 12/23/99
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx, Trustee
/s/ Xxx X. Xxxx
--------------------------------------
Xxx X. Xxxx
XXXXXXXX XXXX IRREVOCABLE
TRUST AGREEMENT DATED 12/29/99
By: /s/ X. Xxx Xxxxxxxx, Xx.
----------------------------------------
X. Xxx Xxxxxxxx, Xx., Trustee
XXXXX XXXX IRREVOCABLE TRUST
AGREEMENT DATED 12/29/99
By: /s/ X. Xxx Xxxxxxxx, Xx.
----------------------------------------
X. Xxx Xxxxxxxx, Xx., Trustee
/s/ Xxxxx Xxxx
--------------------------------------
Xxxxx Xxxx
/s/ Xxxxxxxxx Xxxx
--------------------------------------
Xxxxxxxxx Xxxx
LES GRAT No. 00-1
By: /s/ Xxxxx Xxxx
----------------------------------------
Xxxxx Xxxx, Trustee
By: /s/ Xxxxxxxxx Xxxx
----------------------------------------
Xxxxxxxxx Xxxx, Trustee
LS PARENTS TRUST 00-1
By: /s/ Xxxx Xxxxxx
----------------------------------------
Xxxx Xxxxxx, Trustee
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
ES PARENTS TRUST No. 00-1
By: /s/ Xxxx Xxxxxx
----------------------------------------
Xxxx Xxxxxx, Trustee
/s/ Chin Bin The
--------------------------------------
Chin Bin The
/s/ Xxxxxxx Xxxxx
--------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx
XXXXXXX X. XXXXXXXX AND
XXXXX X. XXXXXXXX TRUST DATED
1/28/00 fbo XXXXXX X. XXXXXXXX
By: Bank of America N.A., Trustee
By: /s/ Xxxxxxx Xxxx
-----------------------------
Name: Xxxxxxx Xxxx
Title: Authorized Signatory
XXXXXXX X. XXXXXXXX AND XXXXX
XXXXXXXX TRUST DATED 1/28/00 fbo
XXXX X. XXXXXXXX
BY: BANK OF AMERICA N.A.,
TRUSTEE
By: /s/ Xxxxxxx Xxxx
-----------------------------
Name: Xxxxxxx Xxxx
Title: Authorized Signatory
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
XXXXXXX X. XXXXXXXX AND XXXXX
XXXXXXXX TRUST DATED 1/28/00 fbo
XXXXXXX X. XXXXXXXX AND
XXXXXXXX X. XXXXXXXX
BY: BANK OF AMERICA N.A.,
TRUSTEE
By: /s/ Xxxxxxx Xxxx
-----------------------------
Name: Xxxxxxx Xxxx
Title: Authorized Signatory
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx
XXXXXXX X. XXXXXXXX XXX ACCOUNT
By: DLJSC
By:
-----------------------------
Name:
Title:
Schedule I
Management Investors
Incentive Shares Incentive Shares*
----------------- -----------------
Xxxxxxx X. Xxxxxxxx........... 3,000,000 2,000,000
Xxxxxxx X. Xxxxxx............. 300,000 200,000
Xxxxxxxx X. Xxxxxxx........... 500,000 333,335
Xxxxxxx X. Xxxx............... 176,429.60 117,625
Xxxxxxx X. Xxxx XXX........... 123,570.40 82,380
Xxxxx X. Xxxxxx............... 300,000 200,000
Xxxx Xxxxxxx.................. 150,000 100,000
Xxxxxx Xxxxxxxxx.............. 600,000 400,000
Xxxxxx X. Xxxxxxxx............ 500,000 333,333
Xxxxxxx X. Xxxxxxxx........... 150,000 100,000
Xxxx XxXxxxxx................. 200,000 133,333
Xxxxxxx Xxxxx................. 50,000 33,334
W. Xxxxxxx Xxxxxx............. 500,000 333,333
Xxx X. Xxxx................... 500,000 333,334
Xxxxx Xxxx.................... 600,000 400,000
CB Teh........................ 200,000 133,333
Xxxxxxx Xxxxx................. 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.
