Exhibit 4.5
$200,000,000
ANACOMP, INC.
10 7/8% SENIOR SUBORDINATED NOTES DUE 2004
PURCHASE AGREEMENT
March 19, 1997
PURCHASE AGREEMENT
March 19, 1997
NatWest Capital Markets Limited
000 Xxxxxxxxxxx
Xxxxxx, XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
Anacomp, Inc., an Indiana corporation (the "Company") hereby
confirms its agreement with you (the "Initial Purchaser"), as set forth below.
1. The Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Initial Purchaser
$200,000,000 aggregate principal amount of its 10 7/8% Senior Subordinated Notes
due 2004 (the "Notes"). The Notes are to be issued under an indenture (the
"Indenture") to be dated as of March 24, 1997 by and among the Company and IBJ
Xxxxxxxxx Bank & Trust Company, as trustee (the "Trustee").
The Notes will be offered and sold to the Initial Purchaser without
being registered under the Securities Act of 1933, as amended (the "Act"), in
reliance on exemptions therefrom.
In connection with the sale of the Notes, the Company has prepared a
preliminary offering memorandum dated March 17, 1997 (the "Preliminary
Memorandum") and will prepare a final offering memorandum dated March 19, 1997
(the "Final Memorandum"; the Preliminary Memorandum and the Final Memorandum
each herein being referred to as a "Memorandum") setting forth or including a
description of the terms of the Notes, the terms of the offering of the Notes, a
description of the Company and any material developments relating to the Company
occurring after the date of the most recent historical financial statements
included therein.
The Company and the Initial Purchaser will enter into a Registration
Rights Agreement (the "Registration Rights Agreement") prior to or concurrently
with the issuance of the Notes. Pursuant to the Registration Rights Agreement,
under the circumstances and the terms set forth therein, the Company will agree
to file with the Securities and Exchange Commission (the "Commission"): (i) a
registration
statement on Form S-4 (the "Exchange Offer Registration Statement") relating to
a registered Exchange Offer (as defined in the Registration Rights Agreement)
for the Notes under the Act to offer to the holders of the Notes the opportunity
to exchange their Notes for an issue of notes substantially identical to the
Notes (except that (a) interest thereon will accrue from the last date on which
interest was paid on the Notes, or if no such interest has been paid, from Xxxxx
00, 0000, (x) such Notes will not contain restrictions on transfer, and (c) such
Notes will not contain provisions relating to an increase in their interest rate
under certain circumstances) that would be registered under the Act (the
"Exchange Notes"); or (ii) alternatively, in the event that applicable
interpretations of the Commission do not permit the Company to effect the
Exchange Offer or do not permit any holder of the Notes to participate in the
Exchange Offer, a shelf registration statement (the "Shelf Registration
Statement") to cover resales of Notes by such holders who satisfy certain
conditions relating to, including the provision of information in connection
with the Shelf Registration Statement.
2. Representations and Warranties. The Company represents and
warrants to, and agrees with the Initial Purchaser that:
(a) Neither the Preliminary Memorandum as of the date thereof nor
the Final Memorandum nor any amendment or supplement thereto as of the
date thereof and at all times subsequent thereto up to the Closing Date
(as defined in Section 3 below) contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations and
warranties set forth in this Section 2(a) do not apply to statements or
omissions made in reliance upon and in conformity with information
relating to the Initial Purchaser furnished to the Company in writing by
the Initial Purchaser expressly for use in the Preliminary Memorandum, the
Final Memorandum or any amendment or supplement thereto.
(b) As of the Closing Date, the Company will have the capitalization
set forth in the Final Memorandum; all of the outstanding shares of
capital stock of the Company have been, and as of the Closing Date will
be, duly authorized and validly issued, are fully paid and nonassessable
and were not issued in violation of any preemptive or similar rights;
except as set forth in the Final Memorandum, there are no (i) options,
warrants or other rights to purchase from the Company, (ii) agreements or
other obligations of the Company to issue or (iii) other rights to convert
any obligation into, or
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exchange any securities for, shares of capital stock of or ownership
interests in the Company outstanding. The entities listed on Schedule 2(b)
hereto are the only subsidiaries, direct or indirect of the Company
(collectively, the "Subsidiaries"). Except as disclosed on Schedule 2(b)
or as disclosed in the Final Memorandum, the Company does not own,
directly or indirectly, any capital stock or any other equity or long-term
debt securities or have any equity interest in any firm, partnership,
joint venture, limited liability company or other entity.
(c) The Company and each of the Subsidiaries has been duly
incorporated, is validly existing and is in good standing as a corporation
under the laws of its jurisdiction of incorporation, with all requisite
corporate power and authority to own its properties and conduct its
business as now conducted, and as described in the Final Memorandum; each
of the Company and the Subsidiaries is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions where the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified
would not, individually or in the aggregate, have a material adverse
effect on the general affairs, management, business, condition (financial
or otherwise), prospects or results of operations of the Company and the
Subsidiaries, taken as a whole (any such event, a "Material Adverse
Effect").
(d) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Notes, the Exchange
Notes and the Private Exchange Notes (as defined in the Registration
Rights Agreement). The Notes, the Exchange Notes and the Private Exchange
Notes have each been duly and validly authorized by the Company and, when
executed by the Company and authenticated by the Trustee in accordance
with the provisions of the Indenture and, in the case of the Notes, when
delivered to and paid for by the Initial Purchaser in accordance with the
terms of this Agreement, will have been duly executed, issued and
delivered and will constitute valid and legally binding obligations of the
Company, entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization or
other similar laws now or hereafter in effect relating to creditors'
rights generally, and (ii) general principles of equity and the discretion
of the court before which any proceeding therefor may be brought.
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(e) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Indenture. The
Indenture meets the requirements for qualification under the Trust
Indenture Act of 1939, as amended (the "TIA"). The Indenture has been duly
and validly authorized by the Company and, when executed and delivered by
the Company (assuming the due authorization, execution and delivery by the
Trustee), will constitute a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general principles
of equity and the discretion of the court before which any proceeding
therefor may be brought.
(f) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Registration Rights
Agreement. The Registration Rights Agreement has been duly and validly
authorized by the Company and, when executed and delivered by the Company,
will constitute a valid and legally binding agreement of the Company
enforceable against the Company in accordance with its terms, except that
the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization or other similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity and
the discretion of the court before which any proceeding therefor may be
brought.
(g) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been
duly and validly authorized, executed and delivered by the Company.
(h) No consent, approval, authorization or order of any court or
governmental agency or body, or third party is required for the
performance of this Agreement by the Company or the consummation by the
Company of the transactions contemplated hereby that are to be completed
on or before the Closing Date, except such as have been obtained or
disclosed in the Final Memorandum and such as may be required under state
securities or "Blue Sky" laws in connection with the purchase and resale
of the Notes by the Initial Purchaser. None of the Company or the
Subsidiaries is (i) in violation of its certificate of incorporation or
bylaws (or similar organizational document), (ii) in breach or violation
of any statute, judgment, decree, order, rule or regulation applicable to
any of them or any of their respective
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properties or assets, or (iii) in breach of or in default under (nor has
any event occurred which, with notice or passage of time or both, would
constitute a default under) or in violation of any of the terms or
provisions of any indenture, mortgage, deed of trust, loan agreement,
note, lease, license, franchise agreement, permit, certificate, contract
or other agreement or instrument to which any of them is a party or to
which any of them or their respective properties or assets is subject
(collectively, "Contracts") except such violations, breaches or defaults
that would not, individually or in the aggregate, have a Material Adverse
Effect.
(i) The execution, delivery and performance by the Company of this
Agreement, the Indenture, and the Registration Rights Agreement and the
consummation by the Company of the transactions contemplated hereby and
thereby, and the fulfillment of the terms hereof and thereof, and the
retention by the Company of NatWest Capital Markets Limited ("NatWest")
pursuant to those certain letter agreements (including the engagement and
indemnity letter agreements) dated as of March 16, 1997 (collectively, the
"NatWest Engagement Letter") and NatWest's acting as contemplated hereby
and thereby, will not conflict with or constitute or result in a breach of
or a default under (or an event which with notice or passage of time or
both would constitute a default under) or violation of any of (i) the
terms or provisions of any Contract except such conflicts, breaches,
defaults or violations, that would not, individually or in the aggregate,
have a Material Adverse Effect (ii) the certificate of incorporation or
by-laws (or similar organizational document) of the Company or any of the
Subsidiaries, or (iii) (assuming compliance with all applicable state
securities or "Blue Sky" laws and assuming the accuracy of the
representations and warranties of the Initial Purchaser in Section 8
hereof) any statute, judgment, decree, order, rule or regulation
applicable to the Company or any of the Subsidiaries or any of their
respective properties or assets except such conflicts, breaches, defaults
or violations that would not, individually or in the aggregate, have a
Material Adverse Effect.
(j) The audited consolidated financial statements of the Company and
the Subsidiaries included in the Final Memorandum present fairly in all
material respects the financial position, results of operations and cash
flows of the Company and the Subsidiaries at the dates and for the periods
to which they relate and have (i) been prepared in accordance with
generally accepted accounting principles applied on a consistent basis and
(ii) comply in all material respects with Statement of Position 90-7 with
regards to Fresh Start Reporting, except as otherwise stated therein. The
summary and selected
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financial and statistical data in the Final Memorandum present fairly in
all material respects the information shown therein and have been prepared
and compiled on a basis consistent with the audited financial statements
included therein, except as otherwise stated therein. Xxxxxx Xxxxxxxx LLP
is an independent public accounting firm within the meaning of the Act and
the rules and regulations promulgated thereunder.
(k) The pro forma financial information included in the Final
Memorandum (i) comply as to form in all material respects with the
applicable requirements of Regulation S-X promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), (ii) have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements, and (iii) have been properly
computed on the bases described therein; the assumptions used in the
preparation of the pro forma financial data and other pro forma financial
information included in the Final Memorandum are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(l) There is not pending or, to the knowledge of the Company and the
Subsidiaries, threatened any action, suit, proceeding, inquiry or
investigation to which the Company or any of the Subsidiaries is a party,
or to which the property or assets of the Company or any of the
Subsidiaries are subject, before or brought by any court, arbitrator or
governmental agency or body which, if determined adversely to the Company
or any of the Subsidiaries would, individually or in the aggregate, have a
Material Adverse Effect or which seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of the Notes
to be sold hereunder or the consummation of the other transactions
described in the Final Memorandum.
(m) Each of the Company and the Subsidiaries owns or possesses
adequate licenses or other rights to use all material patents, trademarks,
service marks, trade names, copyrights and know-how necessary to conduct
the businesses now or proposed to be operated by it as described in the
Final Memorandum, and none of the Company or the Subsidiaries has received
any notice of infringement of or conflict with (or knows of any such
infringement of or conflict with) asserted rights of others with respect
to any patents, trademarks, service marks, trade names, copyrights or
know-how which, if such assertion of infringement or conflict were
sustained, would, individually or in the aggregate, have a Material
Adverse Effect.
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(n) Each of the Company and the Subsidiaries possesses all licenses,
permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals,
presently required or necessary to own or lease, as the case may be, and
to operate its respective properties and to carry on its respective
businesses as now or proposed to be conducted as set forth in the Final
Memorandum (collectively, the "Permits"), except where the failure to
obtain such Permits would not, individually or in the aggregate, have a
Material Adverse Effect; each of the Company and the Subsidiaries has
fulfilled and performed all of its obligations with respect to such
Permits and no event has occurred which allows, or after notice or lapse
of time would allow, revocation or termination thereof or results in any
other material impairment of the rights of the holder of any such Permit
except where such revocation, termination or impairment would not,
individually or in the aggregate, have a Material Adverse Effect; and none
of the Company or the Subsidiaries has received any notice of any
proceeding relating to revocation or modification of any such Permit,
except as described in the Final Memorandum and except where such
revocation or modification would not, individually or in the aggregate,
have a Material Adverse Effect.
(o) Since the date of the most recent financial statements appearing
in the Final Memorandum, except as described therein, (i) none of the
Company or the Subsidiaries has incurred any liabilities or obligations,
direct or contingent, or entered into or agreed to enter into any
transactions or contracts (written or oral) not in the ordinary course of
business which liabilities, obligations, transactions or contracts would,
individually or in the aggregate, be material to the general affairs,
management, business, condition (financial or otherwise), prospects or
results of operations of the Company and the Subsidiaries, taken as a
whole (a "Material Change"), (ii) none of the Company or the Subsidiaries
has purchased any of its outstanding capital stock, nor declared, paid or
otherwise made any dividend or distribution of any kind on its capital
stock and (iii) other than as described in the Final Memorandum, there
shall not have been any change in the capital stock or long-term
indebtedness of the Company or the Subsidiaries which would, individually
or in the aggregate, constitute a Material Change.
(p) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the
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Company and the Subsidiaries, either individually or taken as a whole,
from that set forth in the Final Memorandum (exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement).
(q) Each of the Company and the Subsidiaries has filed all necessary
federal, state, local and foreign income and franchise tax returns, and
has paid all taxes shown as due thereon; and other than tax deficiencies
which the Company or any Subsidiaries is contesting in good faith and for
which the Company or such Subsidiaries has provided adequate reserves,
there is no tax deficiency that has been asserted against the Company or
any of the Subsidiaries.
(r) The statistical and market-related data included in the Final
Memorandum are based on or derived from sources which the Company and the
Subsidiaries believe to be reliable and accurate.
(s) None of the Company, the Subsidiaries or any agent acting on
their behalf has taken or will take any action that might cause this
Agreement or the sale of the Notes to violate Regulation G, T, U or X of
the Board of Governors of the Federal Reserve System, in each case as in
effect, or as the same may hereafter be in effect, on the Closing Date.
(t) Each of the Company and the Subsidiaries has good and marketable
title to all real property and good title to all personal property
described in the Final Memorandum as being owned by it and good and
marketable title to any leasehold estate in the real and personal property
described in the Final Memorandum as being leased by it free and clear of
all liens, charges, encumbrances or restrictions, except as described in
the Final Memorandum or to the extent the failure to have such title or
the existence of such liens, charges, encumbrances or restrictions would
not, individually or in the aggregate, have a Material Adverse Effect. All
leases, contracts and agreements to which the Company or any of the
Subsidiaries is a party or by which any of them is bound are valid and
enforceable against the Company or such Subsidiary, and are valid and
enforceable against the other party or parties thereto and are in full
force and effect with only such exceptions as would not, individually or
in the aggregate, have a Material Adverse Effect.
(u) There are no legal or governmental proceedings involving or
affecting the Company or any Subsidiary or any of their respective
properties or assets which would be required to be described in a
prospectus pursuant to
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the Act that are not described in the Final Memorandum, nor are there any
material contracts or other documents which would be required to be
described in a prospectus pursuant to the Act that are not described in
the Final Memorandum.
(v) Except as would not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect (A) each of the
Company and the Subsidiaries is in compliance with and not subject to
liability under applicable Environmental Laws, (B) each of the Company and
the Subsidiaries has made all filings and provided all notices required
under any applicable Environmental Law, and has and is in compliance with
all Permits required under any applicable Environmental Laws and each of
them is in full force and effect, (C) there is no civil, criminal or
administrative action, suit, demand, claim, hearing, notice of violation,
investigation, proceeding, notice or demand letter or request for
information pending or, to the knowledge of the Company or any of the
Subsidiaries, threatened against the Company or any of the Subsidiaries
under any Environmental Law, (D) no lien, charge, encumbrance or
restriction has been recorded under any Environmental Law with respect to
any assets, facility or property owned, operated, leased or controlled by
the Company or any of the Subsidiaries, (E) none of the Company or the
Subsidiaries has received notice that it has been identified as a
potentially responsible party under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA") or
any comparable state law, (F) no property or facility of the Company or
any of the Subsidiaries is (i) listed or proposed for listing on the
National Priorities List under CERCLA or is (ii) listed in the
Comprehensive Environmental Response, Compensation, Liability Information
System List promulgated pursuant to CERCLA, or on any comparable list
maintained by any state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state and local laws or
regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder, relating to pollution or
protection of public or employee health and safety or the environment,
including, without limitation, law relating to (i) emissions, discharges,
releases or threatened releases of hazardous materials, into the
environment (including, without limitation, ambient air, surface water,
ground water, land surface or subsurface strata), (ii) the manufacture,
processing, distribution, use, generation, treatment, storage, disposal,
transport or handling of hazardous materials, and (iii) under-
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ground and above ground storage tanks, and related piping, and emissions,
discharges, releases or threatened releases therefrom.
(w) There is no strike, labor dispute, slowdown or work stoppage
with the employees of the Company or any of the Subsidiaries which is
pending or, to the knowledge of the Company or any of the Subsidiaries,
threatened.
(x) Each of the Company and the Subsidiaries carries insurance in
such amounts and covering such risks as is adequate for the conduct of its
business and the value of its properties. Neither the Company nor any of
its Subsidiaries has received notice from any insurer or agent of such
insurer that capital improvements of other expenditures are required or
necessary to be made in order to continue such insurance.
(y) None of the Company or the Subsidiaries has any material
liability for any prohibited transaction (within the meaning of Section
4975(c) of the Code or Part 4 of Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) (or an accumulated funding
deficiency within the meaning of Section 412 of the Code or Section 302 of
ERISA) or any complete or partial withdrawal liability (within the meaning
of Section 4201 of ERISA) with respect to any pension, profit sharing or
other plan which is subject to ERISA, to which the Company or any of the
Subsidiaries makes or ever has made a contribution and in which any
employee of the Company or of any Subsidiary is or has ever been a
participant. With respect to such plans, the Company and each Subsidiary
is in compliance in all material respects with all applicable provisions
of ERISA.
(z) Each of the Company and the Subsidiaries (i) makes and keeps
accurate books and records and (ii) maintains internal accounting controls
which provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are recorded
as necessary to permit preparation of its financial statements and to
maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management's authorization and (D) the
reported accountability for its assets is compared with existing assets at
reasonable intervals.
(aa) None of the Company or the Subsidiaries will be an "investment
company" or "promoter" or "principal underwriter" for an "investment
company," as such terms are defined in the Investment Company Act of 1940,
as amended, and the rules and regulations thereunder.
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(bb) The Notes, the Exchange Notes, the Indenture and the
Registration Rights Agreement will conform in all material respects to the
descriptions thereof in the Final Memorandum.
(cc) No holder of securities of the Company will be entitled to have
such securities registered under the registration statements required to
be filed by the Company pursuant to the Registration Rights Agreement
other than as expressly permitted thereby.
(dd) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair saleable
value of the assets of each of the Company and the Subsidiaries (each on a
consolidated basis) will exceed the sum of its stated liabilities and
identified contingent liabilities; none of the Company or the Subsidiaries
(each on a consolidated basis) is, nor will any of the Company or the
Subsidiaries (each on a consolidated basis) be, after giving effect to the
execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby, (a) left with
unreasonably small capital with which to carry on its business as it is
currently or proposed to be conducted, (b) unable to pay its debts
(contingent or otherwise) as they mature or otherwise become due or (c)
otherwise insolvent.
(ee) None of the Company, the Subsidiaries or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under the
Act) has directly, or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any
"security" (as defined in the Act) which is or could be integrated with
the sale of the Notes in a manner that would require the registration
under the Act of the Notes or (ii) engaged in any form of general
solicitation or general advertising (as those terms are used in Regulation
D under the Act) in connection with the offering of the Notes or in any
manner involving a public offering within the meaning of Section 4(2) of
the Act. The Company has not distributed and will not distribute any
offering material in connection with the Offering other than the Final
Memorandum and any Preliminary Memorandum. No securities of the same class
as the Notes have been issued and sold by the Company within the six-month
period immediately prior to the date hereof.
(ff) Assuming the accuracy of the representations and warranties of
the Initial Purchaser in Section 8 hereof, it is not necessary in
connection with the
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offer, sale and delivery of the Notes to the Initial Purchaser in the
manner contemplated by this Agreement to register any of the Notes under
the Act or to qualify the Indenture under the TIA.
(gg) No securities of the Company or any Subsidiary are of the same
class (within the meaning of Rule 144A as promulgated under the Act ("Rule
144A")) as the Notes and listed on a national securities exchange
registered under Section 6 of the Exchange Act, or quoted in a U.S.
automated inter- dealer quotation system.
(hh) None of the Company or the Subsidiaries has taken, nor will any
of them take, directly or indirectly, any action designed to, or that
might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Notes.
(ii) None of the Company or the Subsidiaries, or any person acting
on any of their behalf (other than the Initial Purchaser) has engaged in
any directed selling efforts (as that term is defined in Regulation S
under the Act ("Regulation S")) with respect to the Securities; the
Company and its respective Affiliates and any person acting on any of
their behalf (other than the Initial Purchaser or any Affiliate of the
Initial Purchaser) have complied with the offering restrictions
requirement of Regulation S.
(jj) Each of the Preliminary Memorandum and the Final Memorandum, as
of its respective date, contains all of the information that, if requested
by a prospective purchaser of the Notes, would be required to be provided
to such prospective purchaser to Rule 144A(d)(4) under the Act.
(kk) The Notes satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(ll) Neither the Company nor any of its Subsidiaries nor, to the
Company's knowledge, any officer or director purporting to act on behalf
of the Company or any of its Subsidiaries has at any time: (i) made any
contributions to any candidate for political office, or failed to disclose
fully any such contributions, in violation of law, (ii) made any payment
of funds to, or received or retained any funds from, any state, federal or
foreign governmental officer or official, or other person charged with
similar public or quasi-public duties, other than payments required or
allowed by applicable law, or (iii) engaged in any transactions,
maintained any bank account or used
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any corporate funds except for transactions, bank accounts and funds
which have been and are reflected in the normally maintained books and
records of the Company and its Subsidiaries.
(mm) Except as disclosed in any Memorandum, there are no material
outstanding loans or advances or material guarantees of indebtedness by
the Company or any of its Subsidiaries to or for the benefit of any of the
officers or directors of the Company or any of its Subsidiaries or any of
the members of the families of any of them.
(nn) Neither the Company nor any affiliate of the Company does
business with the government of Cuba or with any person or affiliate
located in Cuba.
(oo) None of the Company or the Subsidiaries has engaged or retained
any person, other than NatWest as the Initial Purchaser, to act as a
financial advisor, underwriter or placement agent in connection with the
issuance of the Notes and, except for the fees and expenses payable in
connection with the issuance of the Notes as described in the Final
Memorandum, no person has the right to receive a material amount of
financial advisory, underwriting, placement, finder's or similar fees in
connection with, or as a result of, the issuance of the Notes and the
purchase of the Notes by the Initial Purchaser or the consummation of the
other transactions contemplated hereby.
Any certificate signed by any officer of the Company or any
Subsidiary and delivered to the Initial Purchaser or to counsel for the Initial
Purchaser shall be deemed a joint and several representation and warranty by the
Company and each of the Subsidiaries to the Initial Purchaser as to the matters
covered thereby.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Initial Purchaser, and the Initial Purchaser agrees to
purchase from the Company the principal amount of Notes set forth opposite its
name on Schedule 1 hereto at 96.2071% of their principal amount. One or more
certificates in definitive form for the Notes that the Initial Purchaser has
agreed to purchase hereunder, and in such denomination or denominations and
registered in such name or names as the Initial Purchaser requests upon notice
to the Company at least 36 hours prior to the Closing Date, shall be delivered
by or on behalf of the Company to the Initial Purchaser,
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against payment by or on behalf of the Initial Purchaser of the purchase price
therefor by wire transfer to such account or accounts as the Company shall
specify prior to the Closing Date, or by such means as the parties hereto shall
agree prior to the Closing Date. Such delivery of and payment for the Notes
shall be made at the offices of White & Case, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx at 10:00 A.M., New York time, on March 24, 1997, or at such other
place, time or date as the Initial Purchaser, on the one hand, and the Company,
on the other hand, may agree upon, such time and date of delivery against
payment being herein referred to as the "Closing Date." The Company will make
such certificate or certificates for the Notes available for inspection and
packaging by the Initial Purchaser at such place as designated by the Initial
Purchaser at least 24 hours prior to the Closing Date.
4. Offering by the Initial Purchaser. The Initial Purchaser proposes
to make an offering of the Notes at the price and upon the terms set forth in
the Final Memorandum, as soon as practicable after this Agreement is entered
into and as in the judgment of the Initial Purchaser is advisable.
5. Covenants of the Company and the Subsidiaries. Each of the
Company and the Subsidiaries, jointly and severally, covenants and agrees with
the Initial Purchaser that:
(a) The Company will not amend or supplement the Final Memorandum or
any amendment or supplement thereto of which the Initial Purchaser shall
not previously have been advised and furnished a copy for a reasonable
period of time prior to the proposed amendment or supplement and as to
which the Initial Purchaser shall not have consented. The Company will
promptly, upon the reasonable request of the Initial Purchaser or counsel
for the Initial Purchaser, make any amendments or supplements to the
Preliminary Memorandum or the Final Memorandum that may be necessary or
advisable in connection with the resale of the Notes by the Initial
Purchaser.
(b) The Company will cooperate with the Initial Purchaser in
arranging for the qualification of the Notes for offering and sale under
the securities or "Blue Sky" laws of which jurisdictions as the Initial
Purchaser may designate and will continue such qualifications in effect
for as long as may be necessary to complete the resale of the Notes;
provided, however, that in connection therewith, none of the Company or
any Subsidiary shall be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction or
subject itself to taxation in excess of a nominal dollar amount in any
such jurisdiction where it is not then so subject.
-14-
(c) If, at any time prior to the completion of the distribution by
the Initial Purchaser of the Notes or the Private Exchange Notes, any
event occurs or information becomes known as a result of which the Final
Memorandum as then amended or supplemented would, in the judgment of the
Company or in the reasonable opinion of your counsel include any untrue
statement of a material fact, or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if for any other reason it is
necessary at any time to amend or supplement the Final Memorandum to
comply with applicable law, the Company and the Subsidiaries will promptly
notify the Initial Purchaser thereof and will prepare, at the expense of
the Company and the Subsidiaries, an amendment or supplement to the Final
Memorandum that corrects such statement or omission or effects such
compliance.
(d) The Company and the Subsidiaries will, without charge, provide
to the Initial Purchaser and to counsel for the Initial Purchaser as many
copies of the Preliminary Memorandum and the Final Memorandum or any
amendment or supplement thereto as the Initial Purchaser may reasonably
request.
(e) The Company will apply the net proceeds from the sale of the
Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) From the Closing Date until the date that no Notes are
outstanding under the Indenture, the Company will furnish to the Initial
Purchaser copies of all reports and other communications (financial or
otherwise) furnished by the Company to the Trustee, or the holders of the
Notes and, as soon as available, copies of any reports or financial
statements furnished to or filed by the Company with the Commission or any
national securities exchange on which any class of securities of the
Company may be listed.
(g) Prior to the Closing Date, the Company and the Subsidiaries will
furnish to the Initial Purchaser, as soon as they have been prepared, a
copy of any unaudited interim financial statements of the Company and the
Subsidiaries for any period subsequent to the period covered by the most
recent financial statements appearing in the Final Memorandum.
(h) None of the Company, the Subsidiaries or any of their Affiliates
will sell, offer for sale or solicit offers to buy or otherwise negotiate
in respect of any "security" (as defined in the Act) which could be
integrated with the
-15-
sale of the Notes in a manner which would require the registration under
the Act of the Notes.
(i) None of the Company or the Subsidiaries will engage in any form
of "general solicitation" or "general advertising" (as those terms are
used in Regulation D under the Act) in connection with the offering of the
Notes or in any manner involving a public offering of the Notes within the
meaning of Section 4(2) of the Act.
(j) None of the Company, the Subsidiaries or their Affiliates nor
any person acting on its or their behalf to engage, in any directed
selling efforts (as that term is defined in Regulation S) with respect to
the Notes, and to comply, and to have its Affiliates and each person
acting on its or their behalf comply, with the offering restrictions
requirements of Regulation S.
(k) For so long as any of the Notes remain outstanding, the Company
and the Subsidiaries will make available, upon request, to any seller of
such Notes the information specified in Rule 144A(d)(4) under the Act,
unless the Company and the Subsidiaries are then subject to Section 13 or
15(d) of the Exchange Act.
(l) For a period of 90 days from the date of the Final Memorandum,
the Company and the Subsidiaries will not offer for sale, sell, contract
to sell or otherwise dispose of, directly or indirectly, or file a
registration statement for, or announce any offer, sale, contract for sale
of or other disposition of any debt securities issued or guaranteed by the
Company or any of its subsidiaries (other than the Notes or the Exchange
Notes or the Private Exchange Notes) without the prior written consent of
the Initial Purchaser;
(m) During the period from the Closing Date until two years after
the Closing Date, without the prior written consent of the Initial
Purchaser, the Company and the Subsidiaries will not, and will not permit
any of their affiliates (as defined in Rule 144 under the Securities Act)
to, resell any of the Notes that have been reacquired by them, except for
Notes purchased by the Company or any of its affiliates and resold in a
transaction registered under the Securities Act;
-16-
(n) In connection with the offering of the Notes, until the Initial
Purchaser shall have notified the Company of the completion of the resale
of the Notes, the Company and the Subsidiaries will not, and will cause
their affiliated purchasers (as defined in Rule 10b-6 under the Exchange
Act) not to, either alone or with one or more other persons, bid for or
purchase, for any account in which it or any of its affiliated purchasers
has a beneficial interest, any Notes, or attempt to induce any person to
purchase any Notes; and not to, and to cause its affiliated purchasers not
to, make bids or purchase for the purpose of creating actual, or apparent,
active trading in or of raising the price of the Notes;
(o) The Company and the Subsidiaries will not take any action prior
to the execution and delivery of the Indenture which, if taken after such
execution and delivery, would have violated any of the covenants contained
in the Indenture;
(p) The Company and the Subsidiaries will not take any action prior
to Closing Date which would require the Final Memorandum to be amended or
supplemented pursuant to Section 5(c);
(q) Prior to the Closing Date, the Company and the Subsidiaries will
not issue any press release or other communication directly or indirectly
or hold any press conference with respect to the Company, its condition,
financial or otherwise, or earnings, business affairs or business
prospects (except for routine oral marketing communications in the
ordinary course of business and consistent with the past practices of the
Company and of which the Initial Purchaser is notified), without the prior
written consent of the Initial Purchaser, unless in the judgment of the
Company and its counsel, after notification to the Initial Purchasers,
such press release or communication is required by law; and
(r) The Company will use its best efforts to (i) permit the Notes to
be designated PORTAL securities in accordance with the rules and
regulations adopted by the NASD relating to trading in the Private
Offerings, Resales and Trading through Automated Linkages market (the
"Portal Market") and (ii) permit the Notes to be eligible for clearance
and settlement through the Depository Trust Company.
(s) The Company will establish the "Collateral Account" as defined
in Section 4.22 of the Indenture.
-17-
6. Expenses. The Company agrees to pay all costs and expenses
incident to the performance of their obligations under this Agreement, whether
or not the transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 11 hereof, including all costs and expenses
incident to (i) the printing, word processing or other production of documents
with respect to the transactions contemplated hereby, including any costs of
printing the Preliminary Memorandum and the Final Memorandum and any amendment
or supplement thereto, and any "Blue Sky" memoranda, (ii) all arrangements
relating to the delivery to the Initial Purchaser of copies of the foregoing
documents, (iii) the fees and disbursements of counsel, accountants and any
other experts or advisors retained by the Company, (iv) preparation (including
printing), issuance and delivery to the Initial Purchaser of the Notes, (v) the
qualification of the Notes under state securities and "Blue Sky" laws, including
filing fees and fees and disbursements of counsel for the Initial Purchaser
relating thereto, (vi) the Company's expenses in connection with any meetings
with prospective investors in the Notes, (vii) fees and expenses of the Trustee
including fees and expenses of counsel, (viii) all expenses and listing fees
incurred in connection with the application for quotation of the Notes on the
PORTAL Market, (ix) any fees charged by investment rating agencies for the
rating of the Notes. If the sale of the Notes provided for herein is not
consummated because any condition to the obligations of the Initial Purchaser
set forth in Section 7 hereof is not satisfied, because this Agreement is
terminated or because of any failure, refusal or inability on the part of the
Company to perform all obligations and satisfy all conditions on their part to
be performed or satisfied hereunder (other than solely by reason of a default by
the Initial Purchaser of their obligations hereunder after all conditions
hereunder have been satisfied in accordance herewith), the Company agrees to
promptly reimburse the Initial Purchaser upon demand for all out-of-pocket
expenses (including all fees, disbursements and charges of White & Case, counsel
for the Initial Purchaser) that shall have been incurred by the Initial
Purchaser in connection with the proposed purchase and sale of the Notes.
7. Conditions of the Initial Purchaser's Obligations. The obligation
of the Initial Purchaser to purchase and pay for the Notes shall, in its sole
discretion, be subject to the satisfaction or waiver of the following conditions
on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser shall have received
the opinion, dated as of the Closing Date and addressed to the Initial
Purchaser, of Cadwalader, Xxxxxxxxxx & Xxxx, counsel for the Company in
form and
-18-
substance satisfactory to counsel for the Initial Purchaser, substantially
to the effect that:
(i) Each of the Company and the material Subsidiaries is
incorporated, validly existing and in good standing under the laws
of its respective jurisdiction of incorporation and has all
requisite corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Final
Memorandum. Each of the Company and the material Subsidiaries is
duly qualified as a foreign corporation and is in good standing in
the jurisdictions set forth below such Subsidiaries' name on
Schedule A attached to such opinion.
(ii) All of the outstanding shares of capital stock of the
Company and the Subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable and were not issued in
violation of any preemptive or similar rights; all of the
outstanding shares of capital stock of the Subsidiaries are owned,
directly or indirectly, by the Company, free and clear of all
security interests perfected, or otherwise, and free and clear of
all other liens, encumbrances, equities and claims or restrictions
on transferability or voting.
(iii) Except as set forth in the Final Memorandum, (A) to the
knowledge of such counsel no options, warrants or other rights to
purchase from the Company or any Subsidiary shares of capital stock
or ownership interests in the Company or any Subsidiary are
outstanding, (B) no agreements or other obligations of the Company
or any Subsidiary to issue, or other rights to cause the Company or
any Subsidiary to convert, any obligation into, or exchange any
securities for, shares of capital stock or ownership interests in
the Company or any Subsidiary are outstanding and (C) no holder of
securities of the Company or any Subsidiary is entitled to have such
securities registered under a registration statement filed by the
Company and the Subsidiaries pursuant to the Registration Rights
Agreement.
(iv) The Company has all requisite corporate power and
authority to execute, deliver and perform its respective obligations
under the Indenture, the Notes, the Exchange Notes and the Private
Exchange Notes; the Indenture is in sufficient form for
qualification under the TIA; the Indenture has been duly and validly
authorized by the Company and, when duly executed and delivered by
the Company
-19-
(assuming the due authorization, execution and delivery thereof by
the Trustee), will constitute the valid and legally binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except that the enforcement thereof may
be subject to (i) bankruptcy, insolvency, reorganization, or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought.
(v) The Global Note (as such term is defined in the Indenture)
is in the form contemplated by the Indenture. The Global Note has
been duly and validly authorized by the Company and when duly
executed and delivered by the Company and paid for by the Initial
Purchaser in accordance with the terms of this Agreement (assuming
the due authorization, execution and delivery of the Indenture by
the Trustee and due authentication and delivery of the Notes by the
Trustee in accordance with the Indenture), will constitute the valid
and legally binding obligations of the Company, entitled to the
benefits of the Indenture, and enforceable against the Company in
accordance with their terms, except that the enforcement thereof may
be subject to (i) bankruptcy, insolvency, reorganization or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought.
(vi) The Exchange Notes and the Private Exchange Notes have
been duly and validly authorized by the Company, and when the
Exchange Notes and the Private Exchange Notes have been duly
executed and delivered by the Company in accordance with the terms
of the Registration Rights Agreement and the Indenture (assuming the
due authorization, execution and delivery of the Indenture by the
Trustee and due authentication and delivery of the Exchange Notes
and the Private Exchange Notes by the Trustee in accordance with the
Indenture), will constitute the valid and legally binding
obligations of the Company, entitled to the benefits of the
Indenture, and enforceable against the Company in accordance with
their terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization or other similar laws now
or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity and
-20-
the discretion of the court before which any proceeding therefor may
be brought.
(vii) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Registration Rights Agreement; the Registration Rights Agreement has
been duly and validly authorized by the Company and, when duly
executed and delivered by the Company (assuming due authorization,
execution and delivery thereof by the Initial Purchaser), will
constitute the valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except
that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which
any proceeding therefor may be brought.
(viii) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby;
this Agreement and the consummation by the Company of the
transactions contemplated hereby have been duly and validly
authorized by the Company. This Agreement has been duly executed and
delivered by the Company.
(ix) The Indenture, the Notes (when issued, authorized and
delivered), the Exchange Notes (when issued, authorized and
delivered) and the Registration Rights Agreement conform in all
material respects to the descriptions thereof contained in the Final
Memorandum.
(x) No legal or governmental proceedings are pending or, to
the knowledge of such counsel, threatened to which any of the
Company is a party or to which the property or assets of the Company
is subject which, if determined adversely to the Company, would
result, individually or in the aggregate, in a Material Adverse
Effect, or which seeks to restrain, enjoin, prevent the consummation
of or otherwise challenge the issuance or sale of the Notes to be
sold hereunder or the consummation of the other transactions
described in the Final Memorandum under the caption "Use of
Proceeds."
-21-
(xi) None of the Company or any material Subsidiary is (i) in
violation of its certificate of incorporation or bylaws (or similar
organizational document) or (ii) to the knowledge of such counsel,
in breach or violation of any judgment, decree or order applicable
to any of them or any of their respective properties or assets.
(xii) The execution and delivery of this Agreement, the
Indenture, the Registration Rights Agreement and the consummation of
the transactions contemplated hereby and thereby (including, without
limitation, the issuance and sale of the Notes to the Initial
Purchaser) will not conflict with or constitute or result in a
breach or a default under (or an event which with notice or passage
of time or both would constitute a default under) or violation of
any of (i) the terms or provisions of any Contract known to such
counsel, (ii) the certificate of incorporation or bylaws (or similar
organizational document) of the Company or any material Subsidiary,
or (iii) (assuming compliance with all applicable state securities
or "Blue Sky" laws and assuming the accuracy of the representations
and warranties of the Initial Purchaser in Section 8 hereof) any
statute, judgment, decree, order, rule or regulation which, in such
counsel's experience, is normally applicable both to general
business corporations which are not engaged in regulated business
activities and to transactions of the type contemplated by the Final
Memorandum.
(xiii) No consent, approval, authorization or order of any
governmental authority is required for the issuance and sale by the
Company of the Notes to the Initial Purchaser or the other
transactions contemplated hereby, except such as are disclosed in
the Final Memorandum or as may be required under Blue Sky laws, as
to which such counsel need express no opinion, and those which have
previously been obtained.
(xiv) There are no legal or governmental proceedings involving
or affecting the Company or the Subsidiaries or any of their
respective properties or assets which would be required to be
described in a prospectus pursuant to the Act that are not described
in the Final Memorandum nor are there any material contracts or
other documents which would be required to be described in a
prospectus pursuant to the Act that are not described in the Final
Memorandum.
-22-
(xv) None of the Company or the Subsidiaries is, or
immediately after the sale of the Notes to be sold hereunder and the
application of the proceeds from such sale (as described in the
Final Memorandum under the caption "Use of Proceeds") will be, an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
(xvi) No registration under the Act of the Notes is required
in connection with the sale of the Notes to the Initial Purchaser as
contemplated by this Agreement and the Final Memorandum or in
connection with the initial resale of the Notes by the Initial
Purchaser in accordance with Section 8 of this Agreement, and prior
to the commencement of the Exchange Offer or the effectiveness of
the Shelf Registration Statement (as defined in the Registration
Rights Agreement), the Indenture is not required to be qualified
under the TIA, in each case assuming (i) that the purchasers who buy
such Notes in the initial resale thereof are qualified institutional
buyers as defined in Rule 144A promulgated under the Act ("QIBs") or
accredited investors as defined in Rule 501(a) (1), (2), (3) or (7)
promulgated under the Act ("Accredited Investors"), (ii) the
accuracy of the Initial Purchaser's representations in Section 8
hereof and those of the Company contained in this Agreement
regarding the absence of a general solicitation in connection with
the sale of such Notes to the Initial Purchaser and the initial
resale thereof and (iii) the due performance by the Initial
Purchaser of the agreements set forth in Section 8 hereof.
(xvii) Neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution or
delivery of the Notes will violate Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System.
At the time the foregoing opinion is delivered, Cadwalader,
Xxxxxxxxxx & Xxxx shall additionally state that it has participated in
conferences with officers and other representatives of the Company and the
Subsidiaries, representatives of the independent public accountants for
the Company, representatives of the Initial Purchaser and counsel for the
Initial Purchaser, at which conferences the contents of the Final
Memorandum and related matters were discussed, and, although it has not
independently verified
-23-
and is not passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Final
Memorandum, no facts have come to its attention which lead it to believe
that the Final Memorandum, on the date thereof or at the Closing Date,
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 contained therein, in the light of the circumstances under
which they were made, not misleading (it being understood that such firm
need express no opinion with respect to the financial statements and
related notes thereto and the other financial, statistical and accounting
data included in the Final Memorandum). In rendering such opinion,
Cadwalader, Xxxxxxxxxx & Xxxx shall have received and may rely upon such
certificates and other documents and information as it may reasonably
request to pass on such matters. The opinion of Cadwalader, Xxxxxxxxxx &
Xxxx described in this Section shall be rendered to the Initial Purchaser
at the request of the Company and shall so state therein.
References to the Final Memorandum in this subsection (a) shall
include any amendment or supplement thereto prepared in accordance with
the provisions of this Agreement at the Closing Date.
(b) On the Closing Date, the Initial Purchaser shall have received
the opinion, in form and substance satisfactory to the Initial Purchaser,
dated as of the Closing Date and addressed to the Initial Purchaser, of
White & Case, counsel for the Initial Purchaser, with respect to certain
legal matters relating to this Agreement and such other related matters as
the Initial Purchaser may reasonably require. In rendering such opinion,
White & Case shall have received and may rely upon such certificates and
other documents and information as it may reasonably request to pass upon
such matters.
(c) The Initial Purchaser shall have received from Xxxxxx Xxxxxxxx
LLP comfort letters dated the date hereof and the Closing Date, in form
and substance satisfactory to counsel for the Initial Purchaser.
(d) The representations and warranties of the Company contained in
this Agreement shall be true and correct on and as of the date hereof and
on and as of the Closing Date as if made on and as of the Closing Date;
the statements of the Company's officers made pursuant to any certificate
delivered in accordance with the provisions hereof shall be true and
correct on and as of the date made and on and as of the Closing Date; the
Company shall
-24-
have performed all covenants and agreements and satisfied all conditions
on their part to be performed or satisfied hereunder at or prior to the
Closing Date; and, except as described in the Final Memorandum (exclusive
of any amendment or supplement thereto after the date hereof), subsequent
to the date of the most recent financial statements in such Final
Memorandum, there shall have been no event or development that,
individually or in the aggregate, has or would be reasonably likely to
have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(f) The Notes shall have been approved by the NASD for trading in
the PORTAL Market.
(g) There shall not have occurred any invalidation of Rule 144A
under the Securities Act by any court or any withdrawal or proposed
withdrawal of any rule or regulation under the Securities Act or the
Exchange Act by the Commission or any amendment or proposed amendment
thereof by the Commission which in the judgment of the Initial Purchaser
would materially impair the ability of the Initial Purchaser to purchase,
hold or effect resales of the Securities as contemplated hereby.
(h) There shall have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations, of the Company and the
Subsidiaries, taken as a whole, from that set forth in the Final
Memorandum that constitutes a Material Adverse Effect and that makes it,
in the Initial Purchaser's judgment, impracticable to market the Notes on
the terms and in the manner contemplated in the Final Memorandum.
(i) Subsequent to the date of the most recent financial statements
in the Final Memorandum (exclusive of any amendment or supplement thereto
after the date hereof), the conduct of the business and operations of the
Company shall not have been interfered with by strike, fire, flood,
hurricane, accident or other calamity (whether or not insured) or by any
court or governmental action, order or decree, and, except as otherwise
stated therein, the properties of the Company shall not have sustained any
loss or damage (whether or not insured) as a result of any such
occurrence, except any such interference, loss or damage which would not,
individually or in the aggregate, have a Material Adverse Effect.
-25-
(j) Any securities of the Company shall have been downgraded or
placed on any "watch list" for possible downgrading by any nationally
recognized statistical rating organization.
(k) The Initial Purchaser shall have received certificates of the
Company, dated the Closing Date, signed by their respective Chairman of
the Board, President or any Senior Vice President and the Chief Financial
Officer, to the effect that:
(i) The representations and warranties of the Company
contained in this Agreement are true and correct as of the date
hereof and as of the Closing Date, and the Company has performed all
covenants and agreements and satisfied all conditions on their part
to be performed or satisfied hereunder at or prior to the Closing
Date;
(ii) At the Closing Date, since the date hereof or since the
date of the most recent financial statements in the Final Memorandum
(exclusive of any amendment or supplement thereto after the date
hereof), no event or events have occurred, no information has become
known nor does any condition exist that, individually or in the
aggregate, would have a Material Adverse Effect;
(iii) The sale of the Notes hereunder has not been enjoined
(temporarily or permanently); and
(iv) such other information as the Initial Purchaser may
reasonably request.
(l) On the Closing Date, the Initial Purchaser shall have received
the Registration Rights Agreement executed by the Company and such
agreement shall be in full force and effect at all times pursuant to its
terms.
(m) The Company shall have established the "Collateral Account" as
defined in Section 4.22 of the Indenture.
On or before the Closing Date, the Initial Purchaser and counsel for
the Initial Purchaser shall have received such further documents, opinions,
certificates, letters and schedules or instruments relating to the business,
corporate, legal and
-26-
financial affairs of the Company and the Subsidiaries as they shall have
heretofore reasonably requested from the Company and the Subsidiaries.
All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchaser and counsel for the Initial Purchaser. The Company and the
Subsidiaries shall furnish to the Initial Purchaser such conformed copies of
such documents, opinions, certificates, letters, schedules and instruments in
such quantities as the Initial Purchaser shall reasonably request.
8. Offering of Notes; Restrictions on Transfer. The Initial
Purchaser agrees with the Company that (i) it has not and will not solicit
offers for, or offer or sell, the Notes by any form of general solicitation or
general advertising (as those terms are used in Regulation D under the Act) or
in any manner involving a public offering within the meaning of Section 4(2) of
the Act; and (ii) it has and will solicit offers for the Notes only from, and
will offer the Notes only to (A) in the case of offers inside the United States,
(x) persons whom the Initial Purchaser reasonably believes to be QIBs or, if any
such person is buying for one or more institutional accounts for which such
person is acting as fiduciary or agent, only when such person has represented to
the Initial Purchaser that each such account is a QIB, to whom notice has been
given that such sale or delivery is being made in reliance on Rule 144A, and, in
each case, in transactions under Rule 144A or (y) a limited number of other
institutional investors reasonably believed by the Initial Purchaser to be
Accredited Investors that, prior to their purchase of the Notes, deliver to the
Initial Purchaser a letter containing the representations and agreements set
forth in Appendix A to the Final Memorandum and (B) in the case of offers
outside the United States, to persons other than U.S. persons ("foreign
purchasers," which term shall include dealers or other professional fiduciaries
in the United States acting on a discretionary basis for foreign beneficial
owners (other than an estate or trust)); provided, however, that, in the case of
this clause (B), in purchasing such Notes such persons are deemed to have
represented and agreed as provided under the caption "Transfer Restrictions"
contained in the Final Memorandum.
The Initial Purchaser represents and warrants that it is a QIB, with
such knowledge and experience in financial and business matters as are necessary
in order to evaluate the merits and risks of an investment in the Notes. The
Initial Purchaser agrees to comply with the applicable provisions of Rule 144A
and Regulation S under the Act. The Initial Purchaser hereby acknowledges that
the Company and, for purposes of the opinions to be delivered to the Initial
Purchaser
-27-
pursuant to Section 7(a) hereof, counsel to the Company will rely upon the
accuracy and truth of the representations contained in this Section 8 and the
Initial Purchaser hereby consents to such reliance.
9. Indemnification and Contribution. (a) The Company and the
Subsidiaries jointly and severally agree to indemnify and hold harmless the
Initial Purchaser and its respective affiliates, directors, officers, agents,
representatives general partners and employees of such Initial Purchaser or its
affiliates, and each other person, if any, who controls the Initial Purchaser or
its affiliates within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, to the full extent lawful against any losses, claims, damages,
expenses or liabilities (or action in respect thereof, including, without,
limitation, shareholder derivative actions and arbitration proceedings) to which
any Initial Purchaser or such other person may become subject under the Act, the
Exchange Act or otherwise, insofar as any such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material
fact contained in any Memorandum or any amendment or supplement thereto or
any application or other document, or any amendment or supplement thereto,
executed by the Company or the Subsidiaries or based upon written
information furnished by or on behalf of the Company or the Subsidiaries
filed in any jurisdiction in order to qualify the Notes under the
securities or "Blue Sky" laws thereof or filed with any securities
association or securities exchange (each an "Application");
(ii) the omission or alleged omission to state, in any Memorandum or
any amendment or supplement thereto or any Application, a material fact
required to be stated therein or necessary to make the statements therein
not misleading; or
(iii) any breach of any of the representations and warranties of the
Company and the Subsidiaries set forth in this Agreement or the
Registration Rights Agreement,
and will reimburse, as incurred, the Initial Purchaser and each such other
person for any legal or other expenses incurred by the Initial Purchaser or such
other person in connection with investigating, defending against or appearing as
a third-party witness in connection with any such loss, claim, damage, liability
or action; provided, however, the Company and the Subsidiaries 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
-28-
any untrue statement or alleged untrue statement or omission or alleged omission
made in any Memorandum or any amendment or supplement thereto or any Application
in reliance upon and in conformity with written information concerning the
Initial Purchaser furnished to the Company by an Initial Purchaser specifically
for use therein. This indemnity agreement will be in addition to any liabilities
or obligations that the Company and the Subsidiaries may otherwise have to the
indemnified parties, including without limitation the indemnification
obligations of the Company pursuant to the NatWest Engagement. The Company and
the Subsidiaries shall not be liable under this Section 9 for any settlement of
any claim or action effected without its prior consent, which shall not be
unreasonably withheld.
(b) The Initial Purchaser agrees to indemnify and hold harmless the
Company, their directors, their officers and each person, if any, who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in any Memorandum or any amendment or supplement thereto or any
Application, or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in any Memorandum or any amendment or
supplement thereto or any Application, 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
concerning the Initial Purchaser, furnished to the Company or the Subsidiaries
by the Initial Purchaser specifically for use therein; and subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses incurred by the Company, or any such
director, officer or controlling person in connection with investigating or
defending against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability that the Initial Purchaser may
otherwise have to the indemnified parties. The Initial Purchaser shall not be
liable under this Section 9 for any settlement of any claim or action effected
without their written consent, which shall not be unreasonably withheld. The
Company and the Subsidiaries shall not, without the prior written consent of the
Initial Purchaser, effect any settlement or compromise of any pending or
threatened proceeding in respect of which the Initial Purchaser is or could have
been a party, or indemnity could have been sought hereunder by any Initial
Purchaser, unless such settlement (A) includes an unconditional written release
of the
-29-
Initial Purchaser, in form and substance reasonably satisfactory to the
Initial Purchaser, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of the Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 9, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraphs (a) and (b)
above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 9 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
under-
-30-
stood, however, that in connection with such action the indemnifying party shall
not be liable for the expenses of more than one separate counsel (in addition to
local counsel) in any one action or separate but substantially similar actions
in the same jurisdiction arising out of the same general allegations or
circumstances, designated by the Initial Purchaser in the case of paragraph (a)
of this Section 9 or either the Company or any of the Subsidiaries in the case
of paragraph (b) of this Section 9, representing the indemnified parties under
such paragraph (a) or paragraph (b), as the case may be, who are parties to such
action or actions) or (ii) the indemnifying party has authorized in writing the
employment of counsel for the indemnified party at the expense of the
indemnifying party. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified party
without the prior written consent of the indemnifying party (which consent shall
not be unreasonably withheld), unless such indemnified party waived in writing
its rights under this Section 9, in which case the indemnified party may effect
such a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 9 is unavailable to an indemnified
party in respect of any losses, claims, damages or liabilities (or actions in
respect thereof), each indemnifying party, in order to provide for just and
equitable contribution, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect (i)
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the offering of the Notes or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Company on
the one hand and the Initial Purchaser on the other shall be deemed to be in the
same proportion as the total proceeds from the offering ( net of commissions and
before deducting expenses) received by the Company and the Subsidiaries bear to
the total discounts and commissions received by the Initial Purchaser. The
relative fault of the parties 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 on the one hand, or the Initial Purchaser on the other,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission or
-31-
alleged statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company and the Initial Purchaser agree
that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to in the first sentence of this paragraph (d). Notwithstanding any other
provision of this paragraph (d), the Initial Purchaser shall not be obligated to
make contributions hereunder that in the aggregate exceed the total discounts,
commissions and other compensation received by the Initial Purchaser under this
Agreement, less the aggregate amount of any damages that the Initial Purchaser
has otherwise been required to pay by reason of the untrue or alleged untrue
statements or the omissions or alleged omissions to state a material fact, and
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. For purposes of this paragraph (d),
each person, if any, who controls the Initial Purchaser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Initial Purchaser, and each director of the
Company, each officer of the Company and each person, if any, who controls the
Company or the Subsidiaries within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, shall have the same rights to contribution as
the Company.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, their
respective officers and the Initial Purchaser set forth in this Agreement or
made by or on behalf of them pursuant to this Agreement shall remain in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Company, any of their respective officers or directors, the Initial
Purchaser or any other person referred to in Section 9 hereof and (ii) delivery
of and payment for the Notes. The respective agreements, covenants, indemnities
and other statements set forth in Sections 6, 9 and 15 hereof shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement.
11. Termination. (a) This Agreement may be terminated in the sole
discretion of the Initial Purchaser by notice to the Company given prior to the
Closing Date in the event that the Company shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on their respective
part to be performed or satisfied hereunder at or prior thereto or, if at or
prior to the Closing any of the following shall have occurred:
-32-
(i) any of the Company or the Subsidiaries shall have sustained any
loss or interference with respect to its businesses or properties from
fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any strike, labor dispute, slow down or work
stoppage or any legal or governmental proceeding, which loss or
interference has had or has a Material Adverse Effect, or there shall have
been, in the sole judgment of the Initial Purchaser, any event or
development that, individually or in the aggregate, has or could be
reasonably likely to have a Material Adverse Effect (including without
limitation a change in control of the Company or the Subsidiaries), except
in each case as described in the Final Memorandum (exclusive of any
amendment or supplement thereto);
(ii) there shall have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations, of the Company and the
Subsidiaries, taken as a whole, from that set forth in the Final
Memorandum that is material and adverse and that makes it, in the Initial
Purchasers' judgment, impracticable to market the Notes on the terms and
in the manner contemplated in the Final Memorandum.
(iii) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange
or the National Association of Securities Dealers, Inc. or the setting of
minimum prices for trading on such exchange or market shall have occurred
or trading of any securities of the Company shall have been suspended on
any exchange or in any over-the-counter market;
(iv) a banking moratorium shall have been declared by New York or
United States authorities;
(v) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States, (C) any material change in the financial
markets of the United States (D) or any other national or international
calamity or emergency which, in the case of (A), (B), (C) or (D) above and
in the sole judgment of the Initial Purchaser, makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Notes as contemplated by the Final Memorandum;
-33-
(vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs that in
has a material adverse effect on the financial markets in the United
States, and would, in the sole judgment of the Initial Purchaser, make it
impracticable or inadvisable to market the Notes;
(vii) the enactment, publication, decree, or other promulgation of
any federal or state statute, regulation, rule order of any court or other
governmental authority which, in your judgment, would have a Material
Adverse Effect;
(viii) any securities of the Company shall have been downgraded or
placed on any "watch list" for possible downgrading by any nationally
recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 11 shall
be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by the Initial Purchaser. The statements
set forth in the last paragraph on the cover page of the Final Memorandum,
paragraphs 6 and 7 under the heading "Private Placement" in the Final Memorandum
(to the extent such statements relate to the Initial Purchaser) constitute the
only information furnished by the Initial Purchaser to the Company for the
purposes of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing and,
if sent to the Initial Purchaser, shall be mailed or delivered to (i) NatWest
Capital Markets Limited, 000 Xxxxxxxxxx, Xxxxxx, Xxxxxxx, Attention:
[___________]; with a copy to White & Case, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxxx, Esq.; if sent to the Company,
shall be mailed or delivered to the Company at 00000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxx with a copy to
Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx, XX 00000, Attention:
Xxxxxxx X. Xxxx, Esq.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; and one business
day after being timely delivered to a next-day air courier.
-34-
14. Successors. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchaser, the Company and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained; this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the indemnities
of the Company and the Subsidiaries contained in Section 9 of this Agreement
shall also be for the benefit of any person or persons who control the Initial
Purchaser within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and (ii) the indemnities of the Initial Purchaser contained in
Section 9 of this Agreement shall also be for the benefit of the directors of
the Company and officers and any person or persons who control the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act.
No purchaser of Notes from the Initial Purchaser will be deemed a successor
because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-35-
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company
and the Initial Purchaser.
Very truly yours,
ANACOMP, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: EVP & CFO
-36-
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
NATWEST CAPITAL MARKETS LIMITED
By: /s/ Xxxxxxx Xxxxx
-------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
-37-
SCHEDULE 1
Principal
Amount of
Initial Purchaser Notes
----------------- ---------
NatWest Capital Markets Limited.............. $200,000,000
SCHEDULE 1
Page 2
SCHEDULE 2(b)
SUBSIDIARIES
Domestic Subsidiaries Percentage Ownership Jurisdiction of Organization
--------------------- -------------------- ----------------------------
Dysan International Sales Corporation 100% California
II*
Xidex International Corporation* 100% California
Foreign Subsidiaries
--------------------
Xidex GmbH Germany
Anacomp GmbH Germany
Datamagnetics GmbH Germany
Anacomp Holdings Ltd. U.K.
Anacomp Ltd. U.K.
Xidex U.K. Ltd. U.K.
Anacomp B.V. Holland
Anacomp Scandinavia A.B. Sweden
Anacomp A/S Denmark
Anacomp O.Y. Finland
Anacomp A/S Norway
Anacomp S.A. France
Anacomp GesmbH Austria
N.V. Anacomp Belgium S.A. Belgium
--------
* Has substantially no assets and/or in process of being dissolved.
SCHEDULE 1
Page 3
Anacomp Italia S.r.l. Italy
COM S.r.l. Italy
Xidex Magnetics S.A.* Switzerland
Xidex Corp. S.A.* Switzerland
Anacomp Canada, Inc. Canada
Anacomp do Brazil Ltda. Brazil
Anacomp Japan Ltd. Japan
Anacomp Pty Ltd.* Australia
Xidex New Zealand Ltd.* New Zealand
Data-Xxxx Development Int'l, Ltd.** Barbados
--------
* Has subsantially no assets and/or in process of being dissolved.
** Has approximately $46,400 in assets.
