EAGLE-PICHER HOLDINGS, INC.
$141,910,000 11 3/4% Cumulative Redeemable Exchangeable Preferred Stock
PREFERRED STOCK PURCHASE AGREEMENT
February 19, 1998
New York, New York
SBC Warburg Dillon Read Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABN AMRO Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Eagle-Picher Holdings, Inc., a Delaware corporation (the "ISSUER" or
"PARENT"), agrees with you as follows:
1. ISSUANCE OF SENIOR PREFERRED STOCK. The Issuer proposes to issue
and sell to SBC Warburg Dillon Read Inc. and ABN AMRO Incorporated (together,
the "INITIAL PURCHASERS") gross proceeds of $80,000,000 of % Cumulative
Redeemable Exchangeable Preferred Stock (the "ORIGINAL SHARES"). The Original
Shares will be issued pursuant to a certificate of designations, preferences and
rights of the Senior Preferred Stock (the "CERTIFICATE OF DESIGNATION") to be
filed with the Secretary of State of the State of Delaware on the Closing Date
(as defined below). Pursuant to the Certificate of Designation, the Issuer shall
enter into a transfer agency agreement (the "TRANSFER AGENCY AGREEMENT") with
The Bank of New York, as transfer agent (the "TRANSFER AGENT"). Capitalized
terms used but not otherwise defined herein shall have the meanings given to
such terms in the Certificate of Designation or the Offering Memorandum (as
defined below).
The Original Shares will be offered and sold to the Initial Purchasers
pursuant to an exemption from the registration requirements under the Securities
Act of 1933, as amended (the "ACT"). The Issuer has prepared a preliminary
offering memorandum dated February 4, 1998 (the "PRELIMINARY OFFERING
MEMORANDUM") and a final offering memorandum dated February 20, 1998 (the
"OFFERING MEMORANDUM") relating to the Issuer and the Original Shares.
The Initial Purchasers have advised the Issuer that the Initial
Purchasers intend, as soon as they deem practicable after this Preferred Stock
Purchase Agreement has been executed and delivered, to resell (the "EXEMPT
RESALES") the Original Shares purchased by the Initial Purchasers under this
Preferred Stock Purchase Agreement (this "AGREEMENT") in private sales exempt
from registration under the Act on the terms set forth in the Offering
Memorandum, as amended or supplemented, solely to persons whom the Initial
Purchasers reasonably believe to be "qualified institutional buyers," as defined
in Rule 144A under the Act ("QIBS"); the persons specified in the preceding
clause are sometimes collectively referred to herein as the "ELIGIBLE
PURCHASERS."
Holders (including subsequent transferees) of the Original Shares will
have the registration rights set forth in the registration rights agreement (the
"PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT") to be dated the Closing Date in
form and substance satisfactory to the Initial Purchasers and conforming to the
description thereof in the Offering Memorandum, for so long as such Original
Shares constitute "TRANSFER RESTRICTED SECURITIES" (as defined in the Preferred
Stock Registration Rights Agreement). Pursuant to the Preferred Stock
Registration Rights Agreement, the Issuer will agree to (i) file with the
Securities and Exchange Commission (the "COMMISSION"), under the circumstances
set forth in the Preferred Stock Registration Rights Agreement, (a) a
registration statement under the Act (the "EXCHANGE OFFER REGISTRATION
STATEMENT") relating to a new issue of preferred stock (the "NEW SHARES" and,
together with the Original Shares, the "SHARES" or the "SENIOR PREFERRED STOCK")
to be offered in exchange for the Original Shares (the "EXCHANGE OFFER") and
issued under the Certificate of Designation or an indenture substantially
identical to the Certificate of Designation and/or (b) under certain
circumstances set forth in the Preferred Stock Registration Rights Agreement, a
shelf registration statement pursuant to Rule 415 under the Act (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer Registration
Statement, the "REGISTRATION STATEMENTS") relating to the resale by certain
holders of the Original Shares, and (ii) to cause such Registration Statements
to be declared effective.
Upon original issuance of the Original Shares and until such time as
the same is no longer required under the applicable requirements of the Act, the
Original Shares shall bear the legend relating thereto set forth under "Transfer
Restrictions" in the Offering Memorandum.
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Commencing March 1, 2003 and on each Dividend Payment Date thereafter,
the Issuer may, at its option, and subject to certain conditions set forth in
the Certificate of Designation, exchange all but not less than all outstanding
Senior Preferred Stock for its 11 3/4% Exchange Debentures due 2008 (the
"EXCHANGE DEBENTURES") which will be issued pursuant to an indenture to be dated
as of the date of such exchange (the "EXCHANGE DEBENTURES INDENTURE") between
the Issuer and a trustee designated by the Issuer (the "TRUSTEE") in form and
substance satisfactory to the Initial Purchasers and conforming to the
description thereof in the Offering Memorandum.
This Agreement, the Senior Preferred Stock, the Exchange Debentures,
the Certificate of Designation, the Exchange Debentures Indenture, the Transfer
Agency Agreement and the Preferred Stock Registration Rights Agreement are
hereinafter sometimes referred to collectively as the "OPERATIVE DOCUMENTS."
Concurrently with the offering of Senior Preferred Stock hereby, E-P
Acquisition, Inc., a Delaware corporation (the "NOTES ISSUER"), to be merged
into Eagle-Picher Industries, Inc., an Ohio corporation (the "COMPANY"), is
offering (the "NOTES OFFERING") an aggregate of $220,000,000 principal amount of
93/8% Senior Subordinated Notes (the "NOTES"), guaranteed on an unsecured senior
subordinated basis by the Issuer and the Subsidiary Guarantors. In connection
with the Acquisition (as defined below) and the offering of the Original Shares
hereby, the Notes Issuer, the Company and the Guarantors will enter into a
Credit Agreement (the "CREDIT AGREEMENT") with ABN AMRO Bank N.V., as Agent, and
the other agents and lenders party thereto. The net proceeds from the sale of
the Original Shares and from the Notes Offering and borrowings under the New
Credit Agreement will be used as described under "The Acquisition and Use of
Proceeds" in the Offering Memorandum for the Notes (the "NOTES OFFERING
MEMORANDUM"), including, but not exclusively, (i) to pay the Merger
Consideration in connection with the merger of the Issuer into the Company (the
"ACQUISITION") pursuant to a Merger Agreement (the "MERGER AGREEMENT") dated as
of December 23, 1997 by and among the Issuer, the Notes Issuer, the Company and
the Eagle-Picher Industries, Inc. Personal Injury Settlement Trust (the "TRUST")
and (ii) to repay the total amount outstanding under the 10% Debentures and
(iii) to redeem 660,000 shares of Common Stock from the Trust.
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained in this Agreement, the Issuer
agrees to issue and sell to the Initial Purchasers, and the Initial Purchasers
agree to purchase from the Issuer, severally and not jointly, the aggregate
initial Liquidation Preference of the Original Shares set forth opposite its
name in Schedule I hereto. The purchase price for the Original Shares shall be
56.377% of
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their final Liquidation Preference, subject to Special Accretion (as defined
herein).
3. DELIVERY AND PAYMENT. Delivery of, and payment of the purchase
price for, the Original Shares shall be made at 10:00 a.m., New York City time,
on February 24, 1998 (such date and time, the "CLOSING DATE") at the offices of
Xxxxxx, Xxxxx & Xxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
The Closing Date and the location of delivery of and the form of payment for the
Original Shares may be varied by mutual agreement between the Initial Purchasers
and the Issuer.
One or more of the Original Shares in global form registered in such
names as the Initial Purchasers may request upon at least one business day's
notice prior to the Closing Date, having an aggregate principal amount
corresponding to the aggregate principal amount of the Original Shares, shall be
delivered by the Issuer to the Initial Purchasers (or as the Initial Purchasers
direct), against payment by the Initial Purchasers of the purchase price
therefor by means of transfer of immediately available funds to such account or
accounts as the Issuer shall specify prior to the Closing Date, or by such means
as the parties hereto shall agree prior to the Closing Date. The Original Shares
in global form shall be made available to the Initial Purchasers for inspection
not later than 1:00 p.m. on the business day immediately preceding the Closing
Date.
4. AGREEMENTS OF THE ISSUER. The Issuer covenants and agrees
with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by
the Initial Purchasers, without charge, with as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any
amendments or supplements thereto, as the Initial Purchasers may
reasonably request. The Issuer consents to the use of the Preliminary
Offering Memorandum and the Offering Memorandum, and any amendments and
supplements thereto required pursuant to this Agreement, by the Initial
Purchasers in connection with Exempt Resales that are in compliance
with this Agreement.
(b) Not to amend or supplement the Offering Memorandum prior to the
Closing Date unless the Initial Purchasers shall previously have been
advised of, and shall not have objected to, such amendment or
supplement within a reasonable time, but in any event not longer than
two business days after being furnished with a copy of such amendment
or supplement. The Issuer shall promptly prepare, upon the Initial
Purchasers' reasonable request, any amendment or supplement to the
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Offering Memorandum that may be necessary or advisable in connection
with Exempt Resales.
(c) If, during the time that an Offering Memorandum is required to be
delivered in connection with any Exempt Resales or market-making
transactions after the date of this Agreement and prior to the
consummation of the Exchange Offer, any event shall occur that, in the
judgment of the Issuer or in the judgment of counsel to the Initial
Purchasers, makes any statement of a material fact in the Offering
Memorandum as then amended or supplemented untrue or that requires the
making of any additions to or changes in the Offering Memorandum in
order to make the statements in the Offering Memorandum as then amended
or supplemented, in the light of the circumstances under which they are
made, not misleading, or if it is necessary to amend or supplement the
Offering Memorandum to comply with all applicable laws, the Issuer
shall promptly notify the Initial Purchasers of such event and prepare
an appropriate amendment or supplement to the Offering Memorandum so
that (i) the statements in the Offering Memorandum as amended or
supplemented will, in the light of the circumstances at the time that
the Offering Memorandum is delivered to prospective Eligible
Purchasers, not be misleading and (ii) the Offering Memorandum will
comply with applicable law.
(d) To cooperate with the Initial Purchasers and counsel to the
Initial Purchasers in connection with the qualification or registration
of the Original Shares under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may request and to continue
such qualification in effect so long as required for the Exempt
Resales. Notwithstanding the foregoing, the Issuer shall not be
required to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to file a general consent to service of
process in any such jurisdiction or subject itself to taxation in
excess of a nominal dollar amount in any such jurisdiction where it is
not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the
Initial Purchasers, to confirm such advice in writing, of the issuance
by any state securities commission of any stop order suspending the
qualification or exemption from qualification of any of the Original
Shares for offering or sale in any jurisdiction, or the initiation of
any proceeding for such purpose by any state securities commission or
other regulatory authority. The Issuer shall use its reasonable best
efforts to prevent the issuance of any stop order or order suspending
the qualification or exemption of any of the Original Shares under any
state securities or Blue
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Sky laws, and if at any time any state securities commission or other
regulatory authority shall issue an order suspending the qualification
or exemption of any of the Original Shares under any state securities
or Blue Sky laws, the Issuer shall use its reasonable best efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time.
(f) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement becomes effective or is terminated, to
pay all costs, expenses, fees, disbursements (including fees, expenses
and disbursements of counsel to the Issuer, but not of counsel to the
Initial Purchasers (except pursuant to clause (iv) herein) or expenses
of the Initial Purchasers if the transactions contemplated hereby are
consummated) and stamp, documentary or similar taxes incident to and in
connection with: (i) the preparation, printing and distribution of the
Preliminary Offering Memorandum and the Offering Memorandum (including,
without limitation, financial statements) and all amendments and
supplements thereto, (ii) the preparation and delivery of the Operative
Documents and all other agreements, memoranda, correspondence and
documents prepared and delivered in connection with this Agreement and
with the Exempt Resales, (iii) the issuance, transfer and delivery by
the Issuer of the Original Shares to the Initial Purchasers, (iv) the
qualification or registration of the Shares for offer and sale under
the securities or Blue Sky laws of the several states of the United
States (including, without limitation, the cost of printing and mailing
a preliminary and final Blue Sky memorandum and the fees and
disbursements of counsel to the Initial Purchasers relating thereto),
(v) the furnishing of such copies of the Preliminary Offering
Memorandum and the Offering Memorandum, and all amendments and
supplements thereto, as may be reasonably requested for use in
connection with Exempt Resales, (vi) the preparation of certificates
for the Shares, (vii) the application for quotation of the Senior
Preferred Stock in the National Association of Securities Dealers, Inc.
("NASD") Automated Quotation System - PORTAL ("PORTAL"), including, but
not limited to, all listing fees and expenses, (viii) the approval of
the Senior Preferred Stock by The Depository Trust Company ("DTC") for
"book-entry" transfer, (ix) the rating of the Senior Preferred Stock by
rating agencies, (x) the fees and expenses of the Transfer Agent and
its counsel and (xi) the performance by the Issuer of its other
obligations under the Operative Documents, including, but not limited
to, the fees, disbursements and expenses of the Issuer's counsel and
accountants.
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(g) To use the proceeds from the sale of the Original Shares in the
manner described in the Offering Memorandum under the caption "The
Acquisition and Use of Proceeds."
(h) To do and perform all things required to be done and performed
under this Agreement by it prior to or after the Closing Date and to
satisfy all conditions precedent on its part to the delivery of the
Original Shares.
(i) Not to, and not to permit any Subsidiary to, sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Act) that would be integrated with the sale
of the Original Shares in a manner that would require the registration
under the Act of the sale of the Original Shares to the Initial
Purchasers or any Eligible Purchasers.
(j) During the period of two years after the Closing Date or, if
earlier, until such time as the Original Shares are no longer
restricted securities (as defined in Rule 144 under the Act), not to,
not to permit any Subsidiary to, and to use its reasonable best efforts
to cause its other affiliates (as defined in Rule 144 under the Act)
not to, resell any of the Original Shares that have been reacquired by
any of them.
(k) Not to engage, not to allow any Subsidiary to engage, and to use
its reasonable best efforts to cause its other affiliates and any
person acting on its behalf (other than in any case any Initial
Purchaser, as to whom the Issuer make no covenant) not to engage, in
any form of general solicitation or general advertising (within the
meaning of Regulation D under the Act) in connection with any offer or
sale of the Original Shares in the United States.
(l) In connection with the offering, until 90 days after the Closing
Date, not to, not to permit any Subsidiary to, and to use its
reasonable best efforts to cause its other affiliates 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 affiliates has a beneficial interest
any Original Shares; and neither it nor any of its affiliates will make
bids or purchases for the purpose of creating actual, or apparent,
active trading in, or of raising the price of, the Original Shares.
(m) During the period of two years after the Closing Date or, if
earlier, until such time as the Original Shares are no longer
restricted securities (as defined in Rule 144 under the Act), not to be
or become a
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closed-end investment company required to be registered, but not
registered, under the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT").
(n) From and after the Closing Date, for so long as any of the Shares
remain outstanding and are "restricted securities" within the meaning
of Rule 144(a)(3) under the Act and during any period in which the
Issuer is not subject to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), to make available upon
request the information required by Rule 144(d)(4) under the Act to (i)
any Holder or beneficial owner or Shares in connection with any sale of
such Shares and (ii) any prospective purchase of such Shares from any
such Holder or beneficial owner designated by the Holder or beneficial
owner. The Issuer will pay the expenses of printing and distributing
such documents.
(o) To comply with all its agreements set forth in the Preferred Stock
Registration Rights Agreement and all agreements set forth in the
representations letter of the Issuer to DTC relating to the approval of
the Senior Preferred Stock by DTC for "book-entry" transfer and to
obtain approval of the Senior Preferred Stock by DTC for "book-entry"
transfer.
(p) To use its reasonable best efforts to effect the inclusion of
the Original Shares in PORTAL.
(q) Prior to the Closing Date, to furnish to the Initial Purchasers,
as soon as they have been prepared by the Company and its Subsidiaries,
a copy of any regularly prepared final internal financial statements of
the Company and its Subsidiaries for any period subsequent to the
period covered by the financial statements appearing in the Offering
Memorandum and prior to the Closing Date.
(r) Not to distribute prior to the Closing Date any offering material
in connection with the offer and sale of the Original Shares other than
the Preliminary Offering Memorandum and the Offering Memorandum.
(s) To cause each Original Share to bear the legend set forth in the
form of Original Share set forth in the Transfer Agency Agreement until
such legend shall no longer be necessary or advisable because the
Shares are no longer subject to the restrictions on transfer described
therein.
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5. REPRESENTATIONS AND WARRANTIES. (a) The Issuer
represents and warrants to the Initial Purchasers that:
(i) Each of the Preliminary Offering Memorandum and the Offering
Memorandum has been prepared in connection with the Exempt Resales.
Neither the Preliminary Offering Memorandum nor the Offering
Memorandum, nor any supplement or amendment thereto, contains any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Issuer makes no representation or warranty with
respect to information contained in or omitted from the Preliminary
Offering Memorandum or the Offering Memorandum, as supplemented or
amended, in reliance upon and in conformity with the information set
forth in Section 9 hereof and furnished to the Issuer in writing by or
on behalf of the Initial Purchasers expressly for inclusion in the
Preliminary Offering Memorandum or the Offering Memorandum or any
supplement or amendment thereto. No order preventing the use of either
the Preliminary Offering Memorandum or the Offering Memorandum, or any
order asserting that any of the transactions contemplated by this
Agreement are subject to the registration requirements of the Act, has
been issued or to the knowledge of Issuer threatened.
(ii) There are no securities of Issuer or any Subsidiary that are
listed on a national securities exchange registered under Section 6 of
the Exchange Act or that are quoted in a United States automated
interdealer quotation system.
(iii) As of the Closing Date, the beneficial ownership of the Issuer
shall be as set forth under "Offering Memorandum Summary" in the Notes
Offering Memorandum, and the Issuer shall have an authorized
capitalization as set forth under the heading entitled "Parent" in the
section of the Notes Offering Memorandum entitled "Capitalization".
Attached as Schedule A is a true and complete list of all Subsidiaries
of the Issuer, their jurisdictions of incorporation, type of entity
and equity ownership. All of the issued and outstanding shares of
capital stock of each Subsidiary have been duly authorized and validly
issued, are fully paid and nonassessable. All shares of capital stock
that are owned of record directly by the Issuer or indirectly by a
wholly-owned Subsidiary of the Issuer are owned free and clear of any
lien, security interest, pledge, charge, encumbrance, equity or claim;
none of the outstanding shares of capital stock of each such
Subsidiary was issued in violation of, or subject to, any preemptive
or similar rights or the charter or by-laws of the Issuer
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or such Subsidiary or any agreement to which the Issuer or such
Subsidiary is a party. Upon the closing of the Acquisition, there will
not be any outstanding rights, warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of capital
stock or other equity interests of any shares of the Subsidiaries,
which shares of capital stock or other equity interests are held by the
Issuer or the Company.
(iv) Each of the Issuer, the Notes Issuer, the Company and each
Subsidiary of the Company has been duly incorporated, is validly
existing as a corporation in good standing (or its equivalent in the
case of non-U.S. Subsidiaries) under the laws of its respective
jurisdiction of incorporation and has all requisite corporate power
and authority, and all necessary authorizations, approvals, orders,
licenses, certificates and permits of and from regulatory or
governmental officials, bodies and tribunals, except where the failure
to obtain such authorizations, approvals, orders, licenses,
certificates and permits would not reasonably be expected to have a
Material Adverse Effect, to (A) carry on its business as it is
currently being conducted and as described in the Offering Memorandum
and (B) own, lease, license and operate its respective properties in
accordance with its business as currently conducted. The Company and
each Restricted Subsidiary is duly qualified and in good standing as a
foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not, either individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect. A "MATERIAL
ADVERSE EFFECT" means any material adverse effect on the business,
condition (financial or other), properties, results of operations or
prospects of the Issuer and its Subsidiaries, taken as a whole.
(v) The Issuer has all requisite corporate power and authority to
execute, deliver and perform all of its obligations under the
Operative Documents and to consummate the transactions contemplated by
the Operative Documents to be consummated on its part and, without
limitation, the Issuer has all requisite corporate power and authority
to issue, sell and deliver the Senior Preferred Stock.
(vi) This Agreement has been duly and validly authorized, executed
and delivered by the Issuer.
(vii) The Certificate of Designation creating the Senior Preferred
Stock will have been duly filed with the Secretary of State of the
State of Delaware on or prior to the Closing Date and will conform in
all material
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respects to the description thereof in the Preliminary Offering
Memorandum and the Offering Memorandum.
(viii) The Transfer Agency Agreement has been, or upon the Closing
Date will be, duly and validly authorized by the Issuer and, when duly
and validly authorized, executed and delivered by the Transfer Agent,
will be a legal, valid and binding obligation of the Issuer,
enforceable against it in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by
general principles of equity and the discretion of the court before
which any proceedings therefor may be brought.
(ix) The Exchange Debentures Indenture, has been, or upon the Closing
Date will be, duly and validly authorized by the Issuer and, when duly
executed and delivered by the Issuer and the Trustee (assuming the due
authorization, execution and delivery thereof by the Trustee), will be
a legal, valid and binding obligation of the Issuer, enforceable
against each of them in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by
general principles of equity and the discretion of the court before
which any proceedings therefor may be brought. The Exchange Debentures
Indenture, when executed and delivered, will conform in all material
respects to the description thereof in the Preliminary Offering
Memorandum and the Offering Memorandum.
(x) The Original Shares have been, or upon the Closing Date will be,
duly and validly authorized for issuance and sale to the Initial
Purchasers by the Issuer and, when issued, authenticated and delivered
by the Issuer against payment by the Initial Purchasers in accordance
with the terms of this Agreement, the Certificate of Designation and
the Transfer Agency Agreement, the Original Shares will be legal,
valid and binding obligations of the Issuer, entitled to the benefits
of the Certificate of Designation and the Transfer Agency Agreement
and enforceable against the Issuer in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity and the discretion of the court
before which any proceedings therefor may be brought. The Original
Shares, when issued, authenticated and delivered,
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will conform in all material respects to the description thereof in
the Preliminary Offering Memorandum and the Offering Memorandum.
(xi) The New Shares have been, or upon the Closing Date will be, duly
and validly authorized for issuance by the Issuer and, when issued,
authenticated and delivered by the Issuer in accordance with the terms
of the Preferred Stock Registration Rights Agreement, the Exchange
Offer, the Certificate of Designation and the Transfer Agency
Agreement, the New Shares will be legal, valid and binding obligations
of the Issuer, entitled to the benefits of the Certificate of
Designation and the Transfer Agency Agreement and enforceable against
the Issuer in accordance with their terms, except that enforceability
of the New Shares may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by
general principles of equity and the discretion of the court before
which any proceedings therefor may be brought. The New Shares, when
issued, authenticated and delivered, will conform in all material
respects to the description thereof in the Preliminary Offering
Memorandum and the Offering Memorandum.
(xii) The Preferred Stock Registration Rights Agreement has been, or
upon the Closing Date will be, duly and validly authorized, executed
and delivered by the Issuer and, when duly executed and delivered by
the Initial Purchasers, will constitute a legal, valid and binding
obligation of the Issuer, enforceable against it in accordance with
its terms, except that (A) enforceability of the Preferred Stock
Registration Rights Agreement may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity and the discretion of the court
before which any proceedings therefor may be brought and (B) any
rights to indemnity or contribution thereunder may be limited by
federal and state securities laws and public policy considerations.
The Preferred Stock Registration Rights Agreement will conform in all
material respects to the description thereof in the Preliminary
Offering Memorandum and the Offering Memorandum.
(xiii) All taxes, fees and other governmental charges that are due
and payable on or prior to the Closing Date in connection with the
execution, delivery and performance of the Operative Documents and the
Merger Agreement and the execution, delivery and sale of the Original
Shares shall have been paid by or on behalf of the Issuer at or prior
to the Closing Date.
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(xiv) None of the Issuer, the Notes Issuer, the Company or any
Subsidiary of the Company is (A) in violation of its charter,
constitutive documents or bylaws or (B) in default (or, with notice or
lapse of time or both, would be in default) in the performance or
observance of any obligation, agreement, covenant or condition
contained in any bond, debenture, note, indenture, mortgage, deed of
trust, loan or credit agreement, lease, license, franchise agreement,
authorization, permit, certificate or other agreement or instrument to
which any of them is a party or by which any of them is bound or to
which any of their assets or properties is subject (collectively,
"AGREEMENTS AND INSTRUMENTS"), or (C) in violation of any law,
statute, rule, regulation, judgment, order or decree of any domestic
or foreign court with jurisdiction over any of them or any of their
assets or properties or other governmental or regulatory authority,
agency or other body, that, in the case of clauses (B) and (C) herein,
would reasonably be expected to have a Material Adverse Effect. There
exists no condition that, with notice, the passage of time or
otherwise, would constitute a default by the Issuer, the Notes Issuer,
the Company, or any Subsidiary of the Company under any such document
or instrument or result in the imposition of any penalty or the
acceleration of any indebtedness, other than penalties, defaults or
conditions that would not have a Material Adverse Effect.
(xv) The Credit Agreement has been, or upon the Closing Date will be,
authorized, executed and delivered by the Issuer, the Notes Issuer,
the Subsidiary Guarantors, ABN AMRO Bank N.V. and the other agents and
lenders party thereto will constitute the legal, valid and binding
obligations of the Issuer, the Notes Issuer and the Subsidiary
Guarantors, enforceable against the Issuer, the Notes Issuer and the
Subsidiary Guarantors, in accordance with their terms, except that
enforceability of the Credit Agreement may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws affecting the enforceability of creditors' rights
generally and by general principles of equity and the discretion of
the court before which any proceedings therefor may be brought. The
Credit Agreement conforms in all material respects to the description
thereof in the Notes Offering Memorandum.
(xvi) The Merger Agreement has been duly and validly authorized,
executed and delivered by the Issuer and Notes Issuer, and constitutes
a legal, valid and binding obligation of the Issuer and the Notes
Issuer enforceable against the Issuer and the Notes Issuer in
accordance with its terms except that enforceability of the Merger
Agreement may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance,
13
moratorium or similar laws affecting the enforceability of creditors'
rights generally and by general principles of equity and the discretion
of the court before which any proceedings therefor may be brought.
(xvii) None of (A) the execution and delivery by the Issuer of this
Agreement and the Preferred Stock Registration Rights Agreement, (B)
the execution, delivery and performance by the Issuer or the Notes
Issuer, as applicable, of (x) the other Operative Documents, (y) the
Credit Agreement or (z) the Merger Agreement or (C) the consummation of
the offer and sale of the Original Shares, the Notes Offering or the
Acquisition does or will violate, conflict with or constitute a breach
of any of the terms or provisions of, or a default under (or an event
that with notice or the lapse of time, or both, would constitute a
default), or require consent under, or result in the creation or
imposition of a lien (other than, as of the Closing Date, the liens
imposed under the Credit Agreement), charge or encumbrance on any
property or assets of the Issuer, the Notes Issuer, the Company or any
Subsidiary of the Company or an acceleration of any indebtedness of the
Issuer, the Notes Issuer, the Company or any Subsidiary of the Company
pursuant to, (i) the charter, constitutive documents or bylaws of the
Issuer, the Notes Issuer, the Company or any Subsidiary of the Company,
(ii) assuming the consummation of the Acquisition and the transactions
contemplated thereby, any Agreement or Instrument, (iii) any law,
statute, rule or regulation applicable to the Issuer, the Notes Issuer,
the Company or any Subsidiary of the Company or their respective assets
or properties or (iv) any judgment, order or decree of any domestic or
foreign court or governmental agency or authority having jurisdiction
over the Issuer, the Notes Issuer, the Company or any Subsidiary of the
Company or their respective assets or properties. Assuming the accuracy
of the representations and warranties of the Initial Purchasers in
Section 5(b) of this Agreement, no consent, approval, authorization or
order of, or filing, registration, qualification, license or permit of
or with, any court or governmental agency, body or administrative
agency, domestic or foreign, is required to be obtained or made by the
Issuer, the Notes Issuer, the Company or any Subsidiary Guarantor for
(1) the execution and delivery by the Issuer of this Agreement or the
Preferred Stock Registration Rights Agreement, (2) the execution,
delivery and performance by the Issuer and the Notes Issuer of (x) the
other Operative Documents, (y) the Credit Agreement to the extent each
is a party or (z) the Merger Agreement or (3) the consummation of the
Acquisition or any of the transactions contemplated thereby, except (x)
such as have been or will be obtained or made on or prior to the
Closing Date, (y) registration of the Exchange Offer or resale of the
Senior Preferred Stock under the Act pursuant to the Preferred Stock
Registration
14
Rights Agreement or (z) such as may be required by the NASD. No
consents or waivers from any other person or entity are required for
the execution, delivery and performance of this Agreement or any of the
other Operative Documents, the execution, delivery and performance of
the Merger Agreement or the Credit Agreement or the consummation of the
Notes Offering or the Acquisition or any of the transactions
contemplated thereby, other than such consents and waivers as have been
obtained or will be obtained prior to the Closing Date.
(xviii) The Issuer has delivered or made available to the Initial
Purchasers true and correct executed copies of the Merger Agreement
and the Credit Agreement and there have been no amendments,
alterations or modifications thereto or waivers of any of the
provisions thereof. The representations and warranties of the Issuer,
the Notes Issuer and each Subsidiary Guarantor set forth in the Merger
Agreement and the Credit Agreement will be true and correct in all
material respects as of the Closing Date (except to the extent that
any such representation or warranty was expressly made as of any other
date, in which case such representation and warranty was true and
correct as of such date).
(xix) Except as set forth in the Offering Memorandum, there is (A) no
action, suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now
pending or, to the knowledge of the Issuer or the Notes Issuer,
threatened or contemplated, to which the Issuer, the Notes Issuer, the
Company or any Subsidiary of the Company is or may be a party or to
which the business, assets or property of such person is or may be
subject, (B) no statute, rule, regulation or order that has been
enacted, adopted or issued or, to the knowledge of the Issuer or Notes
Issuer, that has been proposed by any governmental body or agency,
domestic or foreign, (C) no injunction, restraining order or order of
any nature by a federal or state court or foreign court of competent
jurisdiction to which the Issuer, the Notes Issuer, the Company or any
Subsidiary of the Company is or may be subject that (x) in the case of
clause (A) above, if determined adversely to the Issuer, the Notes
Issuer, the Company or any Subsidiary, would reasonably be expected,
either individually or in the aggregate, (1) to have a Material
Adverse Effect or (2) to interfere with or adversely affect the
issuance of the Senior Preferred Stock in any jurisdiction or
adversely affect the consummation of the transactions contemplated by
any of the Operative Documents, the Merger Agreement or the Credit
Agreement and (y) in the case of clauses (B) and (C) above, would
reasonably be expected, either individually or in the aggregate, (1)
to have a Material Adverse Effect or (2) to interfere with or
adversely affect the issuance of
15
the Senior Preferred Stock or adversely affect the consummation of the
transactions contemplated by any of the Operative Documents, the Merger
Agreement or the Credit Agreement. Every request of any securities
authority or agency of any jurisdiction for additional information with
respect to the Senior Preferred Stock that has been received by the
Issuer or its counsel prior to the date hereof has been, or will prior
to the Closing Date be, complied with in all material respects.
(xx) Except as would not reasonably be expected to have a Material
Adverse Effect, (a) no labor disturbance by the employees of the
Company or any Subsidiary of the Company exists or, to the actual
knowledge of the Issuer, is imminent; (b) the Issuer, the Notes Issuer,
the Company, and each Subsidiary of the Company are in compliance in
all respects with, as applicable, all presently applicable provisions
of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
("ERISA"); (c) no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the
Issuer, the Notes Issuer, the Company or any Subsidiary of the Company
would have any liability; (d) none of the Issuer, the Notes Issuer, the
Company, or any Subsidiary of the Company has incurred or expects to
incur liability under (A) Title IV of ERISA with respect to termination
of, or withdrawal from, any "pension plan" or (B) Section 412 or 4971
of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code"); and
(e) each "pension plan" that is maintained or contributed to by the
Company or its Subsidiaries that is intended to be qualified under
Section 401(a) of the Code is so qualified and nothing has occurred,
whether by action or by failure to act, that would cause the loss of
such qualification.
(xxi) Except as set forth in the Offering Memorandum, each of the
Company and each Subsidiary of the Company (A) is in compliance with,
or not subject to costs or liabilities under, all local, state,
provincial, federal and foreign laws, regulations, rules of common law,
orders and decrees, as in effect as of the date hereof, and any present
judgments and injunctions issued or promulgated thereunder relating to
pollution or protection of public and employee health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants applicable to it or its business or operations or
ownership or use of its property ("ENVIRONMENTAL LAWS"), other than
noncompliance or such costs or liabilities that would not reasonably be
expected to have a Material Adverse Effect, and (B) possesses all
permits, licenses or other approvals required under applicable
Environmental Laws, except where
16
the failure to possess any such permit, license or other approval would
not reasonably be expected to have a Material Adverse Effect. All
currently pending and, to the knowledge of the Issuer, threatened
proceedings, notices of violation, demands, notices of potential
responsibility or liability, suits and existing environmental
conditions by any governmental authority which the Company or its
Subsidiaries could reasonably expect to result in a Material Adverse
Effect are fully and accurately described in all material respects in
the Offering Memorandum.
(xxii) Each of the Company and each Subsidiary of the Company has (A)
good and marketable title to all of the properties and assets described
in the Offering Memorandum as owned by it and good and marketable title
to the leasehold estates in the real and personal property described in
the Offering Memorandum as leased by them, free and clear of all Liens
(as defined in the Notes Indenture), except for Liens described in the
Notes Offering Memorandum and Liens permitted under the Notes
Indenture, and such Liens as would not reasonably be expected to have a
Material Adverse Effect on the rights of the holders of the Senior
Preferred Stock, (B) all licenses, certificates, permits,
authorizations, approvals, franchises and other rights from, and has
made all declarations and filings with, all federal, state, local and
foreign authorities, all self-regulatory authorities and all courts and
other tribunals (each, an "AUTHORIZATION") necessary to engage in the
business conducted by it in the manner described in the Offering
Memorandum, except where failure to hold such Authorizations would not
be reasonably expected to have a Material Adverse Effect, and (C) no
reason to believe that any governmental body or agency, domestic or
foreign, is considering limiting, suspending or revoking any such
Authorization, except where such limitation, suspension or revocation
would not reasonably be expected to have a Material Adverse Effect. All
such Authorizations are valid and in full force and effect and the
Company and each Subsidiary of the Company is in compliance in all
material respects with the terms and conditions of all such
Authorizations and with the rules and regulations of the regulatory
authorities having jurisdiction with respect to such Authorizations,
except for any invalidity, failure to be in full force and effect or
noncompliance with any Authorization that would not reasonably be
expected to have a Material Adverse Effect.
(xxiii) The Company and each Subsidiary of the Company owns,
possesses or has the right to employ all patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names
17
(collectively, the "INTELLECTUAL PROPERTY") necessary to conduct the
businesses operated by it as described in the Offering Memorandum,
except where the failure to own, possess or have the right to employ
such Intellectual Property would not reasonably be expected to have a
Material Adverse Effect. None of the Company or any Subsidiary of the
Company has received any notice of infringement of or conflict with
(and neither knows of any such infringement or a conflict with)
asserted rights of others with respect to any of the foregoing that, if
such assertion of infringement or conflict were sustained, would
reasonably be expected to have a Material Adverse Effect. The use of
the Intellectual Property in connection with the business and
operations of the Company and its Subsidiaries does not infringe on the
rights of any person, except for such infringement as would not
reasonably be expected to have a Material Adverse Effect.
(xxiv) All tax returns required to be filed by the Company and each
Subsidiary of the Company have been filed in all jurisdictions where
such returns are required to be filed; and all taxes, including
withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities or that are due and
payable have been paid, other than those being contested in good faith
and for which reserves have been provided in accordance with generally
accepted accounting principles or those currently payable without
penalty or interest and except where the failure to make such required
filings or payment would not reasonably be expected to have a Material
Adverse Effect. To the knowledge of the Issuer, there are no material
proposed additional tax assessments against any of the Company and its
Subsidiaries or their assets or property.
(xxv) None of the Issuer, the Notes Issuer, the Company or any
Subsidiary of the Company is an "investment company" or a company
"controlled" by an "investment company" incorporated in the United
States within the meaning of the Investment Company Act.
(xxvi) Except as set forth in the Preferred Stock Registration Rights
Agreement or as described in the Offering Memorandum, there are no
holders of securities of the Issuer, the Company, Parent or any
Subsidiary of the Company who have the right to request or demand that
the the Issuer, the Company, Parent or any of the Company's
Subsidiaries register under the Act or analogous foreign laws and
regulations any of such securities held by any such holders.
(xxvii) Each of the Company and its Subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable
assurance
18
that: (A) transactions are executed in accordance with management's
general or specific authorizations; (B) transactions are recorded as
necessary to permit preparation of its financial statements in
conformity with United States generally accepted accounting principles
and to maintain accountability for assets; (C) access to assets is
permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for its assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxviii) Each of the Company and its Subsidiaries maintains insurance
covering its properties, assets, operations, personnel and businesses,
and such insurance is of such type and in such amounts in accordance
with customary industry practice to protect the Company and its
Subsidiaries and their businesses. None of the Company or any
Subsidiary of the Company has received notice from any insurer or
agent of such insurer that any material capital improvements or other
material expenditures will have to be made in order to continue any
insurance maintained by any of them other than capital improvements
and other expenditures that have been budgeted by the Company or its
Subsidiaries, as the case may be.
(xxix) None of the Issuer, the Notes Issuer, the Company, any
Restricted Subsidiary or their Affiliates (as defined in Rule 501(b)
of Regulation D under the Act) has (A) taken, directly or indirectly,
any action designed to, or that might reasonably be expected to, cause
or result in stabilization or manipulation of the price of any
security of the Issuer to facilitate the sale or resale of the
Original Shares or (B) since the date of the Preliminary Offering
Memorandum (x) sold, bid for, purchased or paid any person any
compensation for soliciting purchases of the Original Shares in a
manner that would require registration of the Original Shares under
the Act or (y) paid or agreed to pay to any person any compensation
for soliciting another to purchase any other securities of the Issuer,
the Notes Issuer, the Company or any Restricted Subsidiary in a manner
that would require registration of the Original Shares under the Act.
(xxx) None of the Issuer, the Notes Issuer, the Company, any
Restricted Subsidiary or any of their Affiliates (as defined in
Regulation D under the Act) has, directly or through any agent, sold,
offered for sale, contracted to sell, pledged, solicited offers to buy
or otherwise disposed of or negotiated in respect of, any security (as
defined in the Act) that is currently or will be integrated with the
sale of the Original Shares in a
19
manner that would require the registration of the Original Shares under
the Act.
(xxxi) No registration under the Act of the Original Shares is
required for the sale of the Original Shares to the Initial Purchasers
as contemplated by this Agreement or for the Exempt Resales, assuming
in each case that (A) the purchasers who buy the Original Shares in
the Exempt Resales are Eligible Purchasers and (B) the accuracy of and
compliance with the Initial Purchasers' representations, warranties
and covenants contained in Section 5(b) of this Agreement. No form of
general solicitation or general advertising (prohibited by the Act in
connection with offers or sales such as the Exempt Resales) was used
by the Issuer, the Notes Issuer, the Company, any Restricted
Subsidiary or any of their representatives (other than any Initial
Purchaser, as to whom the Issuer and Parent make no representation) in
connection with the offer and sale of any of the Original Shares or in
connection with Exempt Resales, including, but not limited to,
articles, notices or other communications published in any newspaper,
magazine or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising. None of the Issuer, the
Notes Issuer, the Company, any Restricted Subsidiary or any of their
affiliates has entered into, and none of the Issuer, the Notes Issuer,
the Company, any Restricted Subsidiary or their affiliates will enter
into any contractual arrangement with respect to the distribution of
the Original Shares except for this Agreement.
(xxxii) The execution and delivery of this Agreement, the other
Operative Documents, and the sale of the Senior Preferred Stock to be
purchased by the QIBs will not involve any prohibited transaction
within the meaning of Section 406(a) of ERISA or Section
4975(c)(1)(A)-(D) of the Code. The representation made by the Issuer
and Parent in the preceding sentence is made in reliance upon and
subject to the accuracy of, and compliance with, the representations
and covenants made or deemed made by the Initial Purchasers in Section
5(b) and by the persons who purchase the Senior Preferred Stock as set
forth in the Offering Memorandum under the caption "Transfer
Restrictions."
(xxxiii) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, and each amendment or
supplement thereto, as of its date, contains the information specified
in, and meets the requirements of, Rule 144A(d)(4) under the Act.
20
(xxxiv) As of November 30, 1997, neither, the Company, nor any
Subsidiary of the Company had any material liabilities or obligations,
direct or contingent, that were not set forth in the Company's
consolidated balance sheet as of November 30, 1997 or in the notes
thereto set forth in the Offering Memorandum. Since November 30, 1997,
except as set forth or contemplated in the Offering Memorandum, (a)
none of the Issuer, the Notes Issuer, the Company or any Subsidiary of
the Company has (1) incurred any liabilities or obligations, direct or
contingent, that would reasonably be expected to have a Material
Adverse Effect, or (2) entered into any material transaction not in
the ordinary course of business, (b) there has not been any event or
development in respect of the business or condition (financial or
other) of the Company and its Subsidiaries that, either individually
or in the aggregate, would reasonably be expected to have a Material
Adverse Effect and (c) there has been no dividend or distribution of
any kind declared, paid or made by the Company or any Subsidiary of
the Company on any class of their capital stock.
(xxxv) None of the Issuer, the Company, Parent or any Subsidiary of
the Company (or any agent thereof acting on their behalf) has taken,
and none of them will take, any action that might cause this Agreement
or the issuance or sale of the Senior Preferred Stock to violate
Regulation G (12 C.F.R. Part 207), Regulation T (12 C.F.R. Part 220),
Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224)
of the Board of Governors of the Federal Reserve System or analogous
foreign laws and regulations, in each case as in effect, or as the
same may hereafter be in effect, on the Closing Date.
(xxxvi) Each firm of accountants that has certified or shall certify
the financial statements included or to be included as part of the
Offering Memorandum is an independent accountant within the meaning of
the Act. The historical financial statements and the notes thereto
included in the Preliminary Offering Memorandum and the Offering
Memorandum comply as to form in all material respects with the
requirements applicable to registration statements on Form S-1 under
the Act and present fairly in all material respects the consolidated
financial position and results of operations of the Issuer, the
Company and its Subsidiaries at the respective dates and for the
respective periods indicated. Such financial statements have been
prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis throughout the
periods presented (except as disclosed in the Offering Memorandum).
The pro forma financial statements included in the Preliminary
Offering Memorandum and the Offering Memorandum have been prepared on
a basis consistent with such historical statements, except for the pro
forma
21
adjustments specified therein, and give effect to assumptions made on a
reasonable basis and present fairly in all material respects the
historical and proposed transactions contemplated by the Preliminary
Offering Memorandum and the Offering Memorandum, this Agreement and the
other Operative Documents. The other financial and statistical
information and data included in the Preliminary Offering Memorandum
and the Offering Memorandum, historical and pro forma, are accurately
presented in all material respects and prepared on a basis consistent
with the financial statements and the books and records of the Issuer,
the Company and its Subsidiaries.
(xxxvii) None of the Issuer, the Notes Issuer, the Company or any
Subsidiary of the Company (A) is "insolvent" as that term is defined
in Section 101(32) of the United States Bankruptcy Code (the
"Bankruptcy Code") (11 U.S.C. ' 101(32)), Section 2 of the Uniform
Fraudulent Transfer Act ("UFTA") or Section 2 of the Uniform
Fraudulent Conveyance Act ("UFCA"), (B) has "unreasonably small
capital" as that term is used in Section 548(a)(2)(ii) of the
Bankruptcy Code or Section 5 of the UFCA, (C) is engaged or about to
engage in a business or transaction for which its remaining property
is "unreasonably small" in relation to the business or transaction as
that term is used in Section 4 of the UFTA or (D) is unable to pay its
debts as they mature or become due, within the meaning of Section
548(a)(2)(B)(iii) of the Bankruptcy Code, Section 4 of the UFTA and
Section 6 of the UFCA. The Issuer, the Notes Issuer, the Company and
each Subsidiary of the Company now own assets having a value both at
"fair valuation" and at "present fair saleable value" greater than the
amount required to pay its "debts" as such terms are used in Section 2
of the UFTA and Section 2 of the UFCA. None of the Issuer, the Notes
Issuer, the Company or any Subsidiary of the Company will be rendered
insolvent by the execution and delivery of any of the Operative
Documents or the Credit Agreement or by the transactions contemplated
hereunder or thereunder.
(xxxviii) Except as described in the Offering Memorandum, the
Consolidated Plan of Reorganization of the Eagle-Picher Group, the
Order of the Bankruptcy Court and the Ohio District Court and the
Injunction (together, the "Bankruptcy Plans and Orders") are in full
force and effect, and none of them has been stayed, voided, vacated or
reversed or modified in any material respect; the Eagle-Picher Group,
the Issuer and the Notes Issuer have not taken any actions or omitted
to take actions in violation of the Bankruptcy Plans and Orders.
22
(xxxix) Except as described in the section entitled "Certain
Relationships and Related Transactions" in the Notes Offering
Memorandum, there are no contracts, agreements or understandings
between the Issuer, the Notes Issuer, the Company or any Subsidiary of
the Company and any other person other than the Initial Purchasers
that would give rise to a valid claim against the Issuer, the Notes
Issuer, the Company, any Subsidiary of the Company or the Initial
Purchasers for a brokerage commission, finder's fee or like payment in
connection with the issuance, purchase and sale of the Senior
Preferred Stock.
(xl) Each of the Issuer and the Company has the authorized, issued
and outstanding capitalization set forth in the Preliminary Offering
Memorandum and the Offering Memorandum under the caption
"Capitalization"; all of the outstanding capital stock of the Issuer
and the Company, in each case, has been duly authorized and validly
issued, is or will be on the Closing Date fully paid and nonassessable
and was not issued in violation of any preemptive or similar rights.
(xli) The statistical and market-related data and forward-looking
statements (within the meaning of Section 27A of the Act and Section
21E of the Exchange Act) included in the Preliminary Offering
Memorandum and the Offering Memorandum are based on or derived from
sources that the Issuer believes to be reliable and accurate in all
material respects and represent their good faith estimates that are
made on the basis of data derived from such sources, and the Notes
Issuer and the Company and its Subsidiaries have informed the Issuer
that they believe such sources to be reliable and accurate in all
material respects and have notified the Issuer as to their good faith
estimates made on the basis of data derived from such sources.
(xlii) Each certificate signed by any officer of the Issuer and
delivered to the Initial Purchasers or counsel for the Initial
Purchasers pursuant to, or in connection with, this Agreement shall be
deemed to be a representation and warranty by the Issuer to the
Initial Purchasers as to the matters covered by such certificate.
(xliii) All of the representations and warranties made by the Issuer
in each of the Operative Documents will be true and correct as of the
Closing Date in all material respects, in each case after giving
effect to the Merger and the transactions contemplated thereby.
The Issuer acknowledges that the Initial Purchasers and, for
purposes of the opinions to be delivered to the Initial Purchasers
pursuant
23
to Section 8 of this Agreement, counsel to the Issuer and counsel to
the Initial Purchasers will rely upon the accuracy and truth of the
foregoing representations and the Issuer hereby consent to such
reliance.
(b) Each Initial Purchaser represents, warrants and covenants (as to
itself only) to the Issuer that:
(i) 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 Senior Preferred Stock.
(ii) (A) It has not and will not solicit offers for, or offer or
sell, the Original Shares 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 (B) it has and will solicit offers for
the Original Shares only from, and will offer and sell the Original
Shares only to 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 reliance on the exemption from the registration
requirements of the Act pursuant to Rule 144A.
(iii) The source of funds being used by it to acquire the Original
Shares does not include the assets of any "employee benefit plan"
(within the meaning of Section 3 of ERISA) or any "plan" (within the
meaning of Section 4975 of the Code).
Each of the Initial Purchasers understands that the Issuer
and, for purposes of the opinions to be delivered to them pursuant to
Sections 8(g) and 8(h) hereof, counsel to the Issuer and counsel to the
Initial Purchasers will rely upon the accuracy and truth of the
foregoing representations, and each of the Initial Purchasers hereby
consents to such reliance.
6. INDEMNIFICATION.
(a) The Issuer agrees to indemnify and hold harmless each Initial
Purchaser, each person, if any, who controls an Initial Purchaser
within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, the agents, employees, officers and directors of the
Initial Purchasers and the agents, employees, officers and directors of
any such
24
controlling person from and against any and all losses, liabilities,
claims, damages and expenses whatsoever (including, but not limited, to
reasonable attorneys' fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and
any and all reasonable amounts paid in settlement of any claim or
litigation) (collectively, "LOSSES") to which they or any of them may
become subject under the Act, the Exchange Act or otherwise insofar as
such Losses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum, or in any supplement thereto or amendment thereof, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that the Issuer will not be liable in
any such case to the extent, but only to the extent, that any such Loss
arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information relating to
the Initial Purchasers furnished to the Issuer by or on behalf of the
Initial Purchasers expressly for use therein; and, provided further,
however, that the indemnity agreement contained in this subsection (a)
with respect to any Preliminary Offering Memorandum shall not inure to
the benefit of the Initial Purchasers or their agents, employees,
officers and directors for any Loss if the Offering Memorandum
corrected any such alleged untrue statement or omission and if such
Initial Purchasers failed to send or give a copy of the Offering
Memorandum at or prior to the written confirmation of a sale of the
Senior Preferred Stock to the person alleging such Loss. This indemnity
agreement will be in addition to any liability that the Issuer may
otherwise have, including, but not limited to, liability under this
Agreement.
(b) The Initial Purchasers agree, severally and not jointly, to
indemnify and hold harmless the Issuer, each person, if any, who
controls the Issuer within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, and each of its agents, employees,
officers and directors and the agents, employees, officers and
directors of any such controlling person from and against any Losses to
which it may become subject under the Act, the Exchange Act or
otherwise insofar as such Losses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Offering
Memorandum or the Offering Memorandum, or in any amendment thereof or
supplement thereto, or arise out of or are based
25
upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case
to the extent, but only to the extent, that any such Loss arises out of
or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with information relating to the Initial Purchasers
furnished in writing to the Issuer and Parent by the Initial Purchasers
expressly for use therein. The Issuer, Parent and the Initial
Purchasers acknowledge that the information set forth in Section 9 is
the only information furnished in writing by the Initial Purchasers to
the Issuer and Parent expressly for use in the Preliminary Offering
Memorandum or the Offering Memorandum.
(c) Promptly after receipt by an indemnified party under subsection
6(a) or 6(b) above of notice of the commencement of any action, suit or
proceeding (collectively, an "ACTION"), such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement of such
action (but the failure so to notify an indemnifying party shall not
relieve such indemnifying party from any liability that it may have
under this Section 6 except to the extent that it has been prejudiced
in any material respect by such failure or from any liability which it
may otherwise have). In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the
commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense of
such action with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall
have the right to employ its or their own counsel in any such action,
but the fees and expenses of such counsel shall be at the expense of
such indemnified party or parties unless (i) the employment of such
counsel shall have been authorized in writing by the indemnifying
parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of
the defense of such action within a reasonable time after notice of
commencement of the action, or (iii) the named parties to such action
(including any impleaded parties) include such indemnified party and
the indemnifying parties (or such indemnifying parties shall have
assumed the defense of such action), and such indemnified party or
parties shall have reasonably concluded that there may be defenses
available to it or them that are different from or additional to those
available to one or all of the indemnifying parties (in
26
which case the indemnifying parties shall not have the right to direct
the defense of such action on behalf of the indemnified party or
parties), in any of which events such reasonable fees and expenses of
counsel shall be borne by the indemnifying parties. In no event shall
the indemnifying party be liable for the fees and expenses of more than
one counsel (together with appropriate local counsel) at any time for
all indemnified parties in connection with any one action or separate
but substantially similar or related actions arising in the same
jurisdiction out of the same general allegations or circumstances.
Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim
or action effected without its written consent; provided, however, that
such consent was not unreasonably withheld.
7. CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6 of this
Agreement is for any reason held to be unavailable from the indemnifying party,
or is insufficient to hold harmless a party indemnified under Section 6 of this
Agreement, the Issuer and the Initial Purchasers shall contribute to the amount
paid or payable by such indemnified party as a result of such aggregate Losses
of the nature contemplated by such indemnification provision (but after
deducting in the case of Losses suffered by the indemnifying party, any
contribution received by the indemnifying party from persons other than the
indemnified party who may also be liable for contribution, including persons who
control the indemnified party within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act) to which the Issuer and the Initial
Purchasers may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Issuer, on the one hand, and the Initial
Purchasers, on the other hand, from the offering of the Original Shares or, if
such allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in paragraph (c) of this Section 8 and having been prejudiced in any
material respect by the absence of such notice, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Issuer, on the one hand, and the Initial Purchasers,
on the other hand, in connection with the statements or omissions that resulted
in such Losses, as well as any other relevant equitable considerations. The
relative benefits received by the Issuer, on the one hand, and the Initial
Purchasers, on the other hand, shall be deemed to be in the same proportion as
(x) the total proceeds from the offering of Original Shares (net of discounts
and commissions but before deducting expenses) received by the Issuer, and (y)
the total discounts and commissions received by the Initial Purchasers as set
forth in the table on the cover page of the Offering Memorandum. The relative
fault of the Issuer, on the one hand, and the Initial Purchasers, on the other
hand, shall be determined by reference to, among other things, whether the
untrue or alleged
27
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuer or the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission or alleged
statement or omission.
The Issuer and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to above. Notwithstanding the
provisions of this Section 7, (i) in no case shall the Initial Purchasers be
required to contribute any amount in excess of the amount by which the total
discount and commissions applicable to the Original Shares pursuant to this
Agreement exceeds the amount of any damages that the Initial Purchasers have
otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission and (ii) 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 Section 7, each person, if
any, who controls the Initial Purchasers within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as the Initial Purchasers, and each person, if any, who controls
the Issuer within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act shall have the same rights to contribution as the Issuer, subject
in each case to clauses (i) and (ii) of this Section 7. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim for contribution may be
made against another party or parties under this Section 7, notify such party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 7 or
otherwise, except to the extent that it has been prejudiced in any material
respect by such failure; provided, however, that no additional notice shall be
required with respect to any action for which notice has been given under
Section 6 for purposes of indemnification. Anything in this section to the
contrary notwithstanding, no party shall be liable for contribution with respect
to any action or claim settled without its written consent, provided, however,
that such written consent was not unreasonably withheld.
8. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The obligations of
the Initial Purchasers to purchase and pay for the Original Shares, as provided
for in this Agreement, shall be subject to satisfaction of the following
conditions prior to or concurrently with such purchase:
28
(a) All of the representations and warranties of the Issuer contained
in this Agreement shall be true and correct, or true and correct in all
material respects where such representations and warranties are not
qualified by materiality or Material Adverse Effect, on the date of
this Agreement and, in each case after giving effect to the Merger and
the transactions contemplated thereby, on the Closing Date, except that
if a representation and warranty is made as of a specific date, and
such date is expressly referred to therein, such representation and
warranty shall be true and correct (or true and correct in all material
respects, as applicable) as of such date. The Issuer shall have
performed or complied with all of the agreements contained in this
Agreement and required to be performed or complied with by them at or
prior to the Closing Date.
(b) The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchasers not later than 5:00 p.m., New
York City time, on the day following the date of this Agreement or at
such later date and time as the Initial Purchasers may agree. No stop
order suspending the qualification or exemption from qualification of
the Original Shares in any jurisdiction shall have been issued and no
proceeding for that purpose shall have been commenced or shall be
pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency that would, as of the Closing Date, prevent the issuance of the
Original Shares or consummation of the Exchange Offer; except as
disclosed in the Offering Memorandum, no action, suit or proceeding
shall have been commenced and be pending against or affecting or, to
the best knowledge of the Issuer, threatened against the Issuer, the
Notes Issuer, the Company, and/or any Subsidiary of the Company before
any court or arbitrator or any governmental body, agency or official
that, if adversely determined, would reasonably be expected to have a
Material Adverse Effect; and no stop order preventing the use of the
Offering Memorandum, or any amendment or supplement thereto, or any
order asserting that any of the transactions contemplated by this
Agreement are subject to the registration requirements of the Act shall
have been issued.
(d) As of November 30, 1997, neither, the Company, nor any Subsidiary
of the Company had any material liabilities or obligations, direct or
contingent, that were not set forth in the Company's consolidated
balance sheet as of November 30, 1997 or in the notes thereto set forth
in the Offering Memorandum. Since November 30, 1997, except as set
forth
29
or contemplated in the Offering Memorandum, (a) none of the Issuer, the
Notes Issuer, the Company, or any Subsidiary of the Company has (1)
incurred any liabilities or obligations, direct or contingent, that
would reasonably be expected to have a Material Adverse Effect, or (2)
entered into any material transaction not in the ordinary course of
business, (b) there has not been any event or development in respect of
the business or condition (financial or other) of the Company and its
Subsidiaries that, either individually or in the aggregate, would be
reasonably expected to have a Material Adverse Effect and (c) there has
been no dividend or distribution of any kind declared, paid or made by
the Company or any Subsidiary of the Company on any class of their
capital stock.
(e) The Initial Purchasers shall have received certificates, dated the
Closing Date, signed by two authorized officers of the Issuer
confirming, as of the Closing Date, the matters set forth in paragraphs
(a), (b), (c) and (d) of this Section 8.
(f) The Initial Purchasers shall have received on the Closing Date an
opinion dated the Closing Date, addressed to the Initial Purchasers, of
Xxxxxx, Xxxxx & Xxxxx, counsel to the Issuer, the Notes Issuer, the
Subsidiary Guarantors and the Company, in form and substance reasonably
satisfactory to the Initial Purchasers and counsel to the Initial
Purchasers.
(g) The Initial Purchasers shall have received on the Closing Date an
opinion (satisfactory in form and substance to the Initial Purchasers)
dated the Closing Date of Xxxxx Xxxx & Xxxxxxxx, special counsel to the
Initial Purchasers, covering such matters as are customarily covered in
such opinions.
In addition, such counsel shall state that they have
participated in discussions with your representatives, representatives
of the Issuer and the Guarantors and their counsel and independent
public accountants concerning the preparation of the Offering
Memorandum. Such counsel shall state that, although they are not
passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of any of the statements in the Offering
Memorandum, on the basis of the foregoing (relying as to materiality to
a large extent upon officers or other representatives of the Issuer and
the Company and upon your representations), no facts have come to their
attention that lead such counsel to believe that the Offering
Memorandum (other than the financial statements and other financial and
statistical data contained therein as to which such counsel need
express no belief), on the date of such Offering
30
Memorandum and as of the date of the time of purchase, contained or
contains an untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(h) Prior to the execution of this Agreement, the Initial Purchasers
shall have received a "comfort letter" from each of KPMG Peat Marwick
LLP and Deloitte & Touche LLP, independent public accountants for the
Company, dated as of the date of this Agreement, addressed to the
Initial Purchasers and in form and substance satisfactory to the
Initial Purchasers and counsel to the Initial Purchasers. In addition,
as of the Closing Date, the Initial Purchasers shall have received a
"bring-down comfort letter" from Deloitte & Touche LLP in form and
substance satisfactory to the Initial Purchasers and counsel to the
Initial Purchasers covering the same items and matters as covered in
their "comfort letter" but as of a date that is not more than three
days prior to the date thereof and any changes and additions to the
Preliminary Offering Memorandum that were made producing the Offering
Memorandum.
(i) The Issuer shall filed the Certificate of Designation with the
Secretary of State of the State of Delaware.
(j) The Issuer shall have entered into the Transfer Agency Agreement
and the Initial Purchasers shall have received executed copies thereof.
(k) The Issuer shall have entered into the Preferred Stock
Registration Rights Agreement and the Initial Purchasers shall have
received counterparts, conformed as executed, thereof.
(l) The Issuer and each of the Guarantors shall have entered into the
Credit Agreement, and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof.
(m) The Initial Purchasers shall have received on the Closing Date a
certificate from the Company dated the Closing Date as to the solvency
of the Company and its Subsidiaries, addressed to the Initial
Purchasers and to the lenders in connection with the Issuer and
Guarantors entering into the Credit Agreement.
(n) Simultaneously with the purchase by the Initial Purchasers of the
Original Shares under this Agreement, the Initial Purchasers shall have
consummated the Notes Offering.
31
(o) Prior to or simultaneously with the closing of the transactions
contemplated by this Agreement, the Acquisition shall have been
consummated or will be consummated and the Issuer shall have been
merged into, or on the Closing Date will be merged into, the Company.
(p) The Initial Purchasers shall have been furnished with copies of
such documents as they may reasonably request and all closing documents
from the closings of the transactions contemplated hereby.
(q) Xxxxx Xxxx & Xxxxxxxx, counsel to the Initial Purchasers, shall
have been furnished with such documents as they may reasonably request
to enable them to review or pass upon the matters referred to in this
Section 8 and in order to evidence the accuracy, completeness or
satisfaction in all material respects of any of the representations,
warranties or conditions contained in this Agreement.
(r) The Original Shares shall be eligible for trading in the PORTAL
market upon issuance.
(s) The Senior Preferred Stock shall have initially been assigned
ratings of "B-" and "Caa" by Standard & Poor's Rating Services and
Xxxxx'x Investors Service, Inc., respectively, and no such rating shall
have been downgraded or placed on any "watch list" for possible
downgrading as of or prior to the Closing Date.
(t) All agreements set forth in the representation letter of the
Issuer to DTC relating to the approval of the Senior Preferred Stock by
DTC for "book-entry" transfer shall have been complied with.
If any of the conditions specified in this Section 8 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Initial Purchasers on notice to the Issuer at
any time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party. Notwithstanding any such termination,
the provisions of Sections 4(f), 6, 7, 10, 11(d) and 14 shall remain in effect.
The Issuer's obligation under this Agreement to sell the Original
Shares to the Initial Purchasers on the Closing Date is subject to the Initial
Purchasers purchasing and paying for all of the Original Shares and the accuracy
of, and compliance with, the representations and warranties and agreements in
Section 5(b).
32
9. INITIAL PURCHASERS' INFORMATION. The Issuer and the Initial
Purchasers severally acknowledge that the statements with respect to the offer
and sale of the Original Shares set forth in (i) the last paragraph of the cover
page, (ii) the first paragraph of page 3 and (iii) in the second, fourth, and
fifth paragraph under the caption "Plan of Distribution", all in the Offering
Memorandum constitute the only information furnished in writing by the Initial
Purchasers expressly for use in the Preliminary Offering Memorandum or the
Offering Memorandum.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations
and warranties, covenants and agreements contained in this Agreement, including
the agreements contained in Sections 4(f) and 11(d), the indemnity agreements
contained in Section 6 and the contribution agreements contained in Section 7
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Initial Purchasers or any controlling
person thereof or by or on behalf of the Issuer or any controlling person of any
thereof, and shall survive delivery of and payment for the Original Shares to
and by the Initial Purchasers. The agreements contained in Sections 4(f), 6, 7,
11(d) and 14 shall survive the termination of this Agreement, including pursuant
to Section 11.
11. EFFECTIVE DATE OF AGREEMENT; TERMINATION. (a) This
Agreement shall become effective upon execution and delivery of a counterpart
hereof by each of the parties hereto.
(b) The Initial Purchasers shall have the right to terminate this
Agreement at any time prior to the Closing Date by notice to the Issuer
from the Initial Purchasers, without liability (other than with respect
to Sections 6 and 7) on the Initial Purchasers' part to the Issuer if,
on or prior to such date, (i) the Issuer shall have failed, refused or
been unable to perform in any material respect any agreement on its
part to be performed under this Agreement when and as required, (ii)
any other condition to the obligations of the Initial Purchasers under
this Agreement to be fulfilled by the Issuer pursuant to Section 8 is
not fulfilled when and as required in any material respect, (iii)
trading in securities generally on the New York Stock Exchange or the
American Stock Exchange shall have been suspended or materially
limited, or minimum prices shall have been established on such exchange
by the Commission, or by such exchange or other regulatory body or
governmental authority having jurisdiction, (iv) a general banking
moratorium shall have been declared by federal, New York or Ohio
authorities or (v) there is an outbreak or escalation of armed
hostilities involving the United States on or after the date of this
Agreement, or if there has been a declaration by the United States of a
33
national emergency or war or other national or international calamity
or crisis (economic, political, financial or otherwise) which affects
the U.S. and international markets, making it, in the Initial
Purchasers' judgment, impracticable to proceed with the offering or
delivery of the Original Shares on the terms and in the manner
contemplated in the Offering Memorandum.
(c) Any notice of termination pursuant to this Section 11 shall be
given at the address specified in Section 12 below by telephone, telex,
telephonic facsimile or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to clause (i) or
(ii) of Section 11(b), or if the sale of the Senior Preferred Stock
provided for in this Agreement is not consummated because the Issuer or
Parent to satisfy any condition to the obligations of the Initial
Purchasers set forth in this Agreement to be satisfied on their part or
because of any refusal, inability or failure on the part of the Issuer
to perform any agreement in this Agreement or comply with any provision
of this Agreement, the Issuer will, subject to demand by the Initial
Purchasers, reimburse the Initial Purchasers for all of their
reasonable out-of-pocket expenses (including the fees and expenses of
the Initial Purchasers' counsel) incurred in connection with this
Agreement.
12. NOTICE. All communications with respect to or under this
Agreement, except as may be otherwise specifically provided in this Agreement,
shall be in writing and, if sent to the Initial Purchasers, shall be mailed,
delivered, or telexed, telegraphed or telecopied and confirmed in writing to SBC
Warburg Dillon Read Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(telephone: (000) 000-0000), Attention: Syndicate Department, telecopy number:
000-000-0000; and if sent to the Issuer, shall be mailed, delivered or telexed,
telegraphed or telecopied and confirmed in writing to Eagle-Picher Holdings,
Inc. c/o Eagle-Picher Industries, Inc., 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxx 00000 (telephone: (000) 000-0000, Telecopy (000) 000-0000, Attention:
President).
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; when answered back, if
telexed; when receipt acknowledged by telecopier machine, if telecopied; and one
business day after being timely delivered to a next-day air courier.
13. PARTIES. This Agreement shall inure solely to the benefit of,
and shall be binding upon, the Initial Purchasers and the Issuer and the
controlling persons and agents referred to in Sections 6 and 7, and their
respective successors
34
and assigns, and no other person shall have or be construed to have any legal or
equitable right, remedy or claim under or in respect of or by virtue of this
Agreement or any provision herein contained. The term "successors and assigns"
shall not include a purchaser, in its capacity as such, of Senior Preferred
Stock from the Initial Purchasers.
14. CONSTRUCTION. This Agreement shall be construed in accordance with
the internal laws of the State of New York (without giving effect to any
provisions thereof relating to conflicts of law) and each of the parties hereto
consent to the jurisdiction of the courts of the State of New York. Each of the
parties hereto agrees to submit to the jurisdiction of the courts of the State
of New York and the U.S. federal courts sitting in the City of New York for the
purposes of any suit, action or proceeding arising out of or relating to this
Agreement. Nothing herein shall affect the right to serve process in any other
manner permitted by law or shall limit the right of the Initial Purchasers to
bring proceedings against the Company in the courts of any other jurisdiction.
15. CAPTIONS. The captions included in this Agreement are included
solely for convenience of reference and are not to be considered a part of this
Agreement.
16. COUNTERPARTS. This Agreement may be executed in various
counterparts that together shall constitute one and the same instrument.
35
If the foregoing Preferred Stock Purchase Agreement correctly sets
forth the understanding between the Issuer and the Initial Purchasers, please so
indicate in the space provided below for the purpose, whereupon this letter and
your acceptance shall constitute a binding agreement among the Issuer and the
Initial Purchasers.
EAGLE-PICHER HOLDINGS, INC.
By: /s/ XXXX X. XXXXX
---------------------------------
Name: Xxxx X. Xxxxx
Title: Chairman and President
Confirmed and accepted as of
the date first above written:
SBC WARBURG DILLON READ INC.
By: /s/ XXXX X. XXXX
---------------------------
Name: Xxxx X. Xxxx
Title: Managing Director
ABN AMRO INCORPORATED
By: /s/ XXXXX X. XXXXXX
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
SCHEDULE I
Initial
Liquidation Preference
Initial Purchaser of Original Shares
----------------- ----------------------
SBC Warburg Dillon Read Inc............................. $73,059,940
ABN AMRO Incorporated................................... 6,944,661
-----------
Total $80,004,601
-----------
-----------
SCHEDULE A
Subsidiaries
------------
Jurisdiction
Name Type of Entity of Incorporation Equity Ownership and Direct Owner
---------------------------------- -------------- ----------------- ----------------------------------
1. Domestic Operating Subsidiaries
Daisy Parts, Inc. corporation Michigan Eagle-Picher Industries, Inc.-100%
Eagle Picher Development Company, Inc. corporation Delaware Eagle-Picher Industries, Inc.-100%
Eagle-Picher Far East, Inc. corporation Delaware Eagle-Picher Industries, Inc.-100%
Eagle-Picher Fluid Systems, Inc. corporation Michigan Eagle-Picher Industries, Inc.-100%
Eagle-Picher Minerals, Inc. corporation Nevada Eagle-Picher Industries, Inc.-100%
Hillsdale Tool & Manufacturing Co. corporation Michigan Eagle-Picher Industries, Inc.-100%
Michigan Automotive Research corporation Michigan Eagle-Picher Development Company, Inc.-100%
Corporation
2. Foreign Subsidiaries
Eagle-Picher Automotive GmbH Gesellschaft mit Germany Eagle-Picher Industries Europe B.V.-100%
beschraenkter Haftung
(company with limited
liability)
Eagle-Picher Espana, S.A. Sociedad Anonima (joint Spain Eagle-Picher Industries Europe B.V.-100%
stock company)
Eagle-Picher Fluid Systems Ltd. private limited company England & Wales Eagle-Picher UK Limited-100%
Eagle-Picher Hillsdale Limited private limited company England & Wales Eagle-Picher UK Limited-100%
Eagle-Picher Industries Europe B.V. Besloten Venwootschap Netherlands Eagle-Picher Industries, Inc.-100%
(private company with
limited liability)
Jurisdiction
Name Type Of Entity Of Incorporation Equity Ownership and Direct Owner
-------------------------------- -------------------- ---------------- ----------------------------------
Eagle-Pitcher Technologies GmbH Gesellschaft mit Germany Eagle-Picher Wolverine GmbH - 100%
beschraenkter Haftung
(company with limited
liability)
Eagle-Picher Industries of Canada corporation Ontario, Canada Eagle-Picher Industries, Inc. - 100%
Limited
Eagle-Picher Minerals International Societe a Responsabilite France Eagle-Picher Minerals, Inc. - 100%
S.A.R.L. Limitee (limited liability
company)
Eagle-Picher UK Limited private limited company England & Wales Eagle-Picher Industries Europe B.V. - 100%
Eagle-Picher Wolverine GmbH private limited company Germany Eagle-Picher Industries Europe B.V.
- 99.95% (DM 3,798,000); A Ruijssenaars
in trust for Eagle-Picher Industries, Inc.
- .05% (DM 2,000)
Eagle-Picher, Inc. foreign sales corporation Virgin Islands Eagle-Picher Industries, Inc. - 100%
EPTEC, S.A. de C.V. Sociedad Anonima de Mexico Eagle-Picher Industries, Inc. (28,582,138
Capital Variable shares) & Hillsdale Tool & Manufacturing
(corporation with Co. (1 share)
variable capital)
Equipos xx Xxxxx, X.X. de C.V. Sociedad Anonima de Mexico Eagle-Picher Industries, Inc. (999 shares
Capital Variable of Series A; 19,794,801 shares of Series
(corporation with B; 1,508,248 shares of Series C; Xxxxx X.
variable capital) Xxxxxxx - 1 share of Series A
United Minerals GmbH & Co. KG Kommandit Gesellschaft Germany Eagle-Picher Minerals International
(limited partnership) S.A.R.L. - 100%
United Minerals Verwaltungs-und Gesellschaft mit Germany Eagle-Picher Minerals International
Beteiligungs GmbH beschraenkter Haftung S.A.R.L. - 100%
(company with limited
liability)
3. IMMATERIAL SUBSIDIARIES
Fabricon Corporation corporation Michigan Eagle-Picher Industries, Inc. - 100%
Fabricon Products Corporation of corporation Pennsylvania Fabricon Corporation - 100%
Pennsylvania
Jurisdiction
Name Type of Entity Of Incorporation Equity Ownership and Direct Owner
-------------------------------------------------------------------------------------------------------------------------
Xxxx Aluminum Foundries, Inc. corporation Ohio Eagle-Picher Industries, Inc. - 100%
Wolverine Gasket and Manufacturing Company corporation Michigan Eagle-Picher Industries, Inc. - 100%
Cincinnati Industrial Machinery Sales Company corporation Ohio Eagle-Picher Industries, Inc. - 100%
