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EXHIBIT 1.1
VLASIC FOODS INTERNATIONAL INC.
10 1/4% SENIOR SUBORDINATED NOTES DUE 2009
PURCHASE AGREEMENT
June 22, 1999
Xxxxxxx, Xxxxx & Co.
Xxxxx Securities Inc.
Xxxxxx Brothers Inc.
X.X. Xxxxxx Securities Inc.
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Vlasic Foods International Inc., a New Jersey corporation (the
"COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Purchasers named in Schedule I hereto (the "PURCHASERS")
an aggregate of $200,000,000 principal amount of the Senior Subordinated Notes
of the Company, specified above (the "SECURITIES").
1. The Company represents and warrants to, and agrees with, each of the
Purchasers that:
(a) A preliminary offering circular, dated June 9, 1999 (the
"PRELIMINARY OFFERING CIRCULAR") and an offering circular, dated June
22, 1999 (the "OFFERING CIRCULAR") have been prepared in connection
with the offering of the Securities. Any reference to the Preliminary
Offering Circular or the Offering Circular shall be deemed to refer to
and include any Additional Issuer Information (as defined in Section
5(f)) furnished by the Company prior to the completion of the
distribution of the Securities and any amendments or supplements
thereto did not and will not, as of their respective dates, contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a Purchaser through
Xxxxxxx, Xxxxx & Co. expressly for use therein;
(b) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Offering Circular any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree which
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would have, individually or in the aggregate, a material adverse effect
on the financial position, results of operations or prospects of the
Company and its subsidiaries taken as a whole (a "MATERIAL ADVERSE
EFFECT"), otherwise than as set forth or contemplated in the Offering
Circular; and, since the respective dates as of which information is
given in the Offering Circular, there has not been any material change
in the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareowners' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Offering
Circular;
(c) The Company and its subsidiaries have good and marketable
title in fee simple to all material real property and good and
marketable title to all material personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except
such as are described in the Offering Circular or such as do not
materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries; and any real property and buildings
held under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as
are not material and do not materially interfere with the use made and
proposed to be made of such property and buildings by the Company and
its subsidiaries;
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of New
Jersey, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering
Circular, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, except where the
failure to have such power and authority or be so qualified in any such
jurisdiction would not have a Material Adverse Effect; and each
subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, except where the failure to be in good
standing would not have a Material Adverse Effect;
(e) The Company has an authorized capitalization as set forth
in the Offering Circular, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable; and all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and (except
for directors' qualifying shares) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims, other than as set forth in the Offering Circular;
(f) The Securities have been duly authorized and, when issued
and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
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provided by the indenture to be dated as of June 29, 1999 (the
"INDENTURE") between the Company and The Bank of New York, as Trustee
(the "TRUSTEE"), under which they are to be issued, which will be
substantially in the form previously delivered to you; the Indenture
has been duly authorized and, when executed and delivered by the
Company and the Trustee, the Indenture will constitute a valid and
legally binding instrument, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity); and the Securities and
the Indenture will conform to the descriptions thereof in the Offering
Circular and will be in substantially the form previously delivered to
you;
(g) The exchange and registration rights agreement, to be
dated as of June 29, 1999 (the "REGISTRATION RIGHTS AGREEMENT"),
between the Company and the Purchasers has been duly authorized by the
Company and, when executed and delivered by the Company, the
Registration Rights Agreement will constitute a valid and legally
binding instrument of the Company enforceable against the Company in
accordance with its terms, except to the extent that (a) enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), and (b) the
enforceability of indemnification and contribution provisions pursuant
to the Registration Rights Agreement may be limited by Federal and
state securities laws and the policies underlying such laws. Pursuant
to the Registration Rights Agreement, the Company will agree to file
with the Commission, under the circumstances set forth therein, (i) a
registration statement under the United States Securities Act of 1933,
as amended (the "ACT"), relating to another series of debt securities
of the Company with terms substantially identical to the Securities
(the "EXCHANGE SECURITIES") to be offered in exchange for the
Securities (the "EXCHANGE OFFER"), (ii) to the extent required by the
Registration Rights Agreement, a shelf registration statement pursuant
to Rule 415 of the Act relating to the resale by certain holders of the
Securities and (iii) to the extent required by the Registration Rights
Agreement, a market making registration statement, and in each case, to
use all commercially reasonable efforts to cause such registration
statements to be declared effective. The Exchange Securities have been
duly authorized for issuance by the Company, and when issued and
authenticated in accordance with the terms of the Indenture will be the
valid and legally binding obligations of the Company, entitled to the
benefits provided by the Indenture, enforceable against the Company in
accordance with their terms, except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity). The Registration
Rights Agreement will conform, in all material respects, to the
description thereof in the Offering Circular and will be in
substantially the form previously delivered to you;
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(h) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale
of the Securities) will violate or result in a violation of Section 7
of the United States Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), or any regulation promulgated thereunder, including,
without limitation, Regulations T, U, and X of the Board of Governors
of the Federal Reserve System;
(i) Prior to the date hereof, neither of the Company, nor any
of its affiliates, has taken any action which is designed to or which
has constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the
Company in connection with the offering of the Securities;
(j) The issuance and sale of the Securities by the Company,
the execution and delivery of the Indenture, the Registration Rights
Agreement and the Purchase Agreement by the Company, compliance by the
Company with the terms thereof and the consummation by the Company of
the transactions contemplated thereby, each in accordance with its
terms, will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, except for any such conflict, breach,
violation or default which would not have a Material Adverse Effect, or
any material adverse effect on the issuance and sale of the Securities
or the consummation of any of the transactions contemplated hereby or
by the Indenture or the Registration Rights Agreement nor will such
action result in any violation of the provisions of (i) the Amended and
Restated Certificate of Incorporation or Amended and Restated By-laws
of the Company or (ii) any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties, except
in the case of clause (ii) above, such violation which would not have a
Material Adverse Effect, or any material adverse effect on the issuance
and sale of the Securities or the consummation of any of the
transactions contemplated hereby or by the Indenture or the
Registration Rights Agreement.
(k) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except for the filing of a registration
statement by the Company with the Commission pursuant to the Act
pursuant to the Registration Rights Agreement and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Purchasers;
(l) Neither the Company nor any of its subsidiaries is (i) in
violation of its Amended and Restated Certificate of Incorporation or
Amended and Restated By-laws or (ii) in default in the performance or
observance of any material obligation, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or
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instrument to which it is a party or by which it or any of its
properties may be bound, other than, in the case of clause (ii), any
default which would not have a Material Adverse Effect;
(m) The statements set forth in the Offering Circular under
the caption "Description of Notes", insofar as they purport to
constitute a summary of the terms of the Securities and under the
caption "Underwriting", insofar as they purport to describe provisions
of the agreements, statutes or regulations referred to therein fairly
describe or summarize such provisions in all material respects;
(n) Other than as set forth in the Offering Circular, there
are no legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a Material Adverse Effect; and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(o) When the Securities are issued and delivered pursuant to
this Agreement, the Securities will not be of the same class (within
the meaning of Rule 144A under the Act) as any securities of the
Company which are listed on a national securities exchange registered
under Section 6 of the Exchange Act or quoted in a U.S. automated
inter-dealer quotation system;
(p) The Company is subject to Section 13 or 15(d) of the
Exchange Act;
(q) The Company is not, and after giving effect to the
offering and sale of the Securities, will not be an "investment
company", as such term is defined in the United States Investment
Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT");
(r) None of the Company, or any person acting on its behalf
(other than the Purchasers, with respect to whom the Company makes no
representations or warranties) has offered or sold the Securities by
means of any general solicitation or general advertising within the
meaning of Rule 502(c) under the Act or, with respect to Securities
sold outside the United States to non-U.S. persons (as defined in Rule
902 under the Act), by means of any directed selling efforts within the
meaning of Rule 902 under the Act and the Company, any affiliate of the
Company and any person acting on its behalf (other than the Purchasers,
with respect to whom the Company makes no representations or
warranties) has complied with and will implement the "offering
restriction" within the meaning of such Rule 902;
(s) Within the preceding six months, none of the Company, or
any other person acting on behalf of the Company (other than the
Purchasers with respect to whom the Company makes no representations or
warranties) has offered or sold to any person any Securities, or any
securities of the same or a similar class as the Securities, other than
Securities offered or sold to the Purchasers hereunder. The Company
will take reasonable precautions designed to insure that any offer or
sale, direct or indirect, in the United States or to any U.S. person
(as defined in
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Rule 902 under the Act) of any Securities, or any substantially similar
security issued by the Company within six months subsequent to the date
on which the distribution of the Securities has been completed (as
notified to the Company by Xxxxxxx, Sachs & Co.), is made under
restrictions and other circumstances reasonably designed not to affect
the status of the offer and sale of the Securities in the United States
and to U.S. persons contemplated by this Agreement as transactions
exempt from the registration provisions of the Act;
(t) Neither the Company nor any of its subsidiaries does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(u) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder; and
(v) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to
which the business or operations of the Company or any of its
subsidiaries will be affected by the Year 2000 Problem. As a result of
such review, the Company has no reason to believe, and does not
believe, that the Year 2000 Problem will have a Material Adverse Effect
or result in any material loss or interference with the Company's
business or operations. The "Year 2000 Problem" as used herein means
any significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Purchasers, and each of the Purchasers
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 95.472% of the principal amount thereof, plus accrued interest, if any,
from June 29, 1999 to the Time of Delivery (as defined in paragraph 4)
hereunder, the principal amount of Securities set forth opposite the name of
such Purchaser in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the
several Purchasers propose to offer the Securities for sale upon the terms and
conditions set forth in this Agreement and the Offering Circular and each
Purchaser hereby represents and warrants to, and agrees with the Company that:
(a) It will offer and sell the Securities only to:(i) persons
who it reasonably believes are "qualified institutional buyers"
("QIBS") within the meaning of Rule 144A under the Act in transactions
meeting the requirements of Rule 144A or (ii) upon the terms and
conditions set forth in Annex I to this Agreement;
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(b) It is an Institutional Accredited Investor within the
meaning of Rule 501 under the Act; and
(c) It will not offer or sell the Securities by any form of
general solicitation or general advertising, including but not limited
to the methods described in Rule 502(c) under the Act.
4. (a) The Securities to be purchased by each Purchaser hereunder will
be represented by one or more definitive global Securities in
book-entry form which will be deposited by or on behalf of the Company
with The Depository Trust Company ("DTC") or its designated custodian.
The Company will deliver the Securities to Xxxxxxx, Xxxxx & Co., for
the account of each Purchaser, against payment by or on behalf of such
Purchaser of the purchase price therefor by wire transfer of Federal
(same day) funds to the account specified by the Company at least 10
hours in advance of the closing of the offering of the Securities, by
causing DTC to credit the Securities to the account of Xxxxxxx, Sachs &
Co. at DTC. The Company will cause the certificates representing the
Securities to be made available to Xxxxxxx, Xxxxx & Co. for checking at
least twenty-four hours prior to the Time of Delivery (as defined
below) at the office of DTC or its designated custodian (the
"DESIGNATED OFFICE"). The time and date of such delivery and payment
shall be 9:30 a.m., New York City time, on June 29, 1999 or such other
time and date as Xxxxxxx, Sachs & Co. and the Company may agree upon in
writing. Such time and date are herein called the "TIME OF DELIVERY".
(b) The documents to be delivered at the Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof,
including the cross-receipt for the Securities and any additional
documents requested by the Purchasers pursuant to Section 7(h) hereof,
will be delivered at such time and date at the offices of Xxxxxx &
Xxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000 (the "CLOSING
LOCATION"), and the Securities will be delivered at the Designated
Office, all at the Time of Delivery. A meeting will be held at the
Closing Location at 1:00 p.m., New York City time, on June 25, 1999, at
which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, "NEW YORK BUSINESS
DAY" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Purchasers:
(a) To prepare the Offering Circular in a form acceptable to
you; to make no amendment or any supplement to the Offering Circular
which shall be disapproved by you promptly after reasonable notice
thereof; and to furnish you with as many copies thereof as you shall
reasonably request;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as you
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may reasonably request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the
Securities, provided that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) To furnish the Purchasers with copies of the Offering
Circular and each amendment or supplement thereto signed by an
authorized officer of the Company with the independent accountants'
report(s) in the Offering Circular, and any amendment or supplement
containing amendments to the financial statements covered by such
report(s), signed by the accountants, and additional copies thereof in
such quantities as you may from time to time reasonably request, and
if, at any time prior to the expiration of nine months after the date
of the Offering Circular, any event shall have occurred as a result of
which the Offering Circular as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Offering Circular is delivered, not misleading, or, if for any other
reason it shall be necessary or desirable during such same period to
amend or supplement the Offering Circular, to notify you and upon your
request to prepare and furnish without charge to each Purchaser and to
any dealer in securities as many copies as you may from time to time
reasonably request of an amended Offering Circular or a supplement to
the Offering Circular which will correct such statement or omission or
effect such compliance;
(d) During the period beginning from the date hereof and
continuing until the date six months after the Time of Delivery, not to
offer, sell, contract to sell or otherwise dispose of, except as
provided hereunder any securities of the Company that are substantially
similar to the Securities;
(e) Not to be or become, at any time prior to the expiration
of three years after the Time of Delivery, an open-end investment
company, unit investment trust, closed-end investment company or
face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act;
(f) At any time when the Company is not subject to Section 13
or 15(d) of the Exchange Act, for the benefit of holders from time to
time of Securities, to furnish at its expense, upon request, to holders
of Securities and prospective purchasers of securities information (the
"ADDITIONAL ISSUER INFORMATION") satisfying the requirements of
subsection (d)(4)(i) of Rule 144A under the Act;
(g) If requested by you, to use its reasonable best efforts to
cause the Securities to be eligible for the PORTAL trading system of
the National Association of Securities Dealers, Inc.;
(h) To make generally available to the holders of the
Securities as soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and
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statements of income, shareowners' equity and cash flows of the Company
and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the
first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the date of the Offering Circular), to make
generally available to its shareowners consolidated summary financial
information of the Company and its subsidiaries for such quarter in
reasonable detail;
(i) During a period of three years from the date of the
Offering Circular, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareowners of the
Company, and to deliver to you (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed
with the Commission or any securities exchange on which the Securities
or any class of securities of the Company is listed; and (ii) such
additional information concerning the business and financial condition
of the Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in
reports furnished to its shareowners generally or to the Commission);
(j) During the period of two years after the Time of Delivery,
the Company will not, and will not permit any of its "affiliates" (as
defined in Rule 144 under the Act) to, resell any of the Securities
which constitute "restricted securities" under Rule 144 that have been
reacquired by any of them;
(k) The Company shall file and use all commercially reasonable
efforts to cause to be declared or become effective under the Act, on
or prior to 180 days after the Time of Delivery, a registration
statement on Form S-4 providing for the registration of the Exchange
Securities, and the exchange of the Securities for the Exchange
Securities, all in a manner which will permit persons who acquire the
Exchange Securities to resell the Exchange Securities pursuant to
Section 4(1) of the Act;
(l) To use the net proceeds received by it from the sale of
the Securities pursuant to this Agreement in the manner specified in
the Offering Circular under the caption "Use of Proceeds".
6. The Company covenants and agrees with the several Purchasers that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the issue of the Securities and all other expenses in connection
with the preparation, printing and filing of the Preliminary Offering Circular
and the Offering Circular and any amendments and supplements thereto and the
mailing and delivering of copies thereof to the Purchasers and dealers; (ii) the
cost of printing or producing any Agreement among Purchasers, this Agreement,
the Indenture, the Registration Rights Agreement, the Blue Sky and Legal
Investment Memoranda, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery
of the Securities; (iii) all expenses in connection with the qualification of
the Securities and the Exchange Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
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disbursements of counsel for the Purchasers in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Securities
and the Exchange Securities; (v) the cost of preparing the Securities and
Exchange Securities; (vi) the fees and expenses of the Trustee and any agent of
the Trustee and the fees and disbursements of counsel for the Trustee in
connection with the Indenture, the Securities and the Exchange Securities; (vii)
any cost incurred in connection with the designation of the Securities for
trading in PORTAL and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Purchasers will pay
all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Purchasers hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Time of Delivery,
true and correct, the condition that the Company shall have performed all of its
obligations hereunder therefore to be performed, and the following additional
conditions:
(a) Xxxxxx & Xxxxxxx, counsel for the Purchasers, shall have
furnished to you such opinion or opinions, dated the Time of Delivery,
as you may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable
them to pass upon such matters;
(b) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel
for the Company, shall have furnished to the Purchasers their written
opinion, dated the Time of Delivery, in form and substance reasonably
satisfactory to the Purchasers, to the effect that:
(i) Insofar as execution and delivery are matters
governed by the laws of the State of New York, this Agreement
has been duly executed and delivered by the Company;
(ii) The Securities, when issued by the Company and
duly executed and authenticated in accordance with the terms
of the Indenture, and when issued and delivered to and paid
for by the Purchasers pursuant to this Agreement, will be
valid and legally binding obligations of the Company entitled
to the benefits of the Indenture, enforceable against the
Company in accordance with their terms, except to the extent
that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity);
(iii) Insofar as execution and delivery are matters
governed by the laws of the State of New York, the Indenture
has been duly executed and delivered by the Company and is a
valid and legally binding agreement of the Company,
enforceable against the
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Company in accordance with its terms, except to the extent
that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity);
(iv) Insofar as execution and delivery are matters
governed by the laws of the State of New York, the
Registration Rights Agreement has been duly executed and
delivered by the Company and is a valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that (a)
enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), and (b) the
enforceability of indemnification and contribution provisions
may be limited by Federal and state securities laws and the
policies underlying such laws;
(v) The issuance and sale of the Securities by the
Company, the execution and delivery of the Indenture, the
Registration Rights Agreement and this Agreement by the
Company, compliance by the Company with the terms thereof and
the consummation by the Company of the transactions
contemplated thereby, each in accordance with its terms, will
not (i) constitute a violation of or a default under the terms
of any Applicable Contract (except that such counsel does not
express any opinion as to any covenant, restriction or
provision of any such agreement or instrument with respect to
financial covenants, ratios or tests or any aspect of the
financial condition or results of operations of the Company or
any of its subsidiaries) or (ii) result in any contravention
of any Applicable Law or any Applicable Order. As used herein,
(a) the term "Applicable Contract" means those agreements
which have been identified to us by the Company to be all the
agreements which are material to the Company and its
subsidiaries, taken as a whole, and which are listed on
Schedule I to our opinion, (b) the term "Applicable Law" means
those laws, rules and regulations of the State of New York and
the federal laws of the United States of America, in each case
which, in our experience, are normally applicable to
transactions of the type contemplated by the Purchase
Agreement (other than the United States federal securities
laws, state securities or Blue Sky laws, antifraud laws and
the rules and regulations of the National Association of
Securities Dealers, Inc.), but without such counsel having
made any special investigation with respect to any other laws,
rules or regulations, (c) the term "Applicable Orders" means
those judgments, orders or decrees of any Governmental
Authorities specifically identified to us by the Company to be
applicable to the Company or any of its subsidiaries, as
identified on Schedule II to such counsel's opinion, and (d)
the term "Governmental Authorities" means any court,
regulatory body, administrative agency, or governmental body
of the State of New York or the United States of America
having jurisdiction over the Company or any of its
subsidiaries under Applicable Laws;
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(vi) No consent, approval, authorization, order,
registration or qualification of or with any federal or New
York governmental agency or body or any federal or New York
court is required for the issue and sale by the Company of the
Securities and Exchange Securities and the compliance by the
Company with all the provisions of this Agreement, the
Indenture and the Registration Rights Agreement, except for
the filing of a registration statement by the Company with the
Commission under the Act pursuant to the Registration Rights
Agreement and the related qualification of the Indenture under
the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), in connection with the registration of the
Securities or Exchange Securities and such other consents,
approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws or the
rules of the National Association of Securities Dealers, Inc.;
(vii) The statements set forth in the Offering
Circular under the caption "Description of Notes", insofar as
they purport to constitute a summary of the terms of the
documents described therein, fairly summarize the provisions
of such documents purported to be described therein in all
material respects;
(viii) Assuming (i) the accuracy of the
representations and warranties of the Company set forth in
Section 1 of this Agreement (except for clause (k) of Section
1) and of the representations, warranties and agreements of
the Purchasers set forth in Section 3 of this Agreement, (ii)
the due performance by the Company of the covenants and
agreements set forth in Section 5 of this Agreement, and (iii)
the compliance by the Company and the Purchasers with the
offering and transfer procedures and restrictions described in
the Offering Circular, the offer, sale and delivery of the
Securities to the Purchasers in the manner contemplated by
this Agreement and the Offering Circular, and the initial
resale of the Securities by the Purchasers in the manner
contemplated in the Offering Circular and this Purchase
Agreement, do not require registration under the Act, and the
Indenture does not require qualification under the Trust
Indenture Act, it being understood that such counsel does not
express any opinion as to any subsequent resale of any
Security; and
(ix) The Company is not subject to registration or
regulation as an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
Such counsel has participated in conferences with officers and
other representatives of the Company, internal counsel for the
Company, representatives of the independent accountants for
the Company, and the Purchasers and counsel for the Purchasers
at which the contents of the Offering Circular and related
matters were discussed and, although such counsel is not
passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained
in the Offering Circular and have made no independent check or
verification thereof (except to the extent referred to in
paragraph (vii) above), on the basis of the foregoing, no
facts have come
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to such counsel's attention that have led such counsel to
believe that the Offering Circular, as of its date or as of
the date of such counsel's opinion, contained or contains an
untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading, except that such counsel does
not express any opinion or belief with respect to the
financial statements and related notes and other financial
data included therein or excluded therefrom.
(c) Xxxxx X. Xxxxxx, Esq., General Counsel for the Company,
shall have furnished to the Purchasers her written opinion and any
opinion on which she has relied, dated the Time of Delivery, in form
and substance reasonably satisfactory to the Purchasers, to the effect
that:
(i) This Agreement has been duly authorized, executed
and delivered by the Company;
(ii) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of New Jersey, with power and authority (corporate and
other) to own its properties and conduct its business as
described in the Offering Circular;
(iii) The Company has an authorized share
capitalization as set forth under the heading "Capitalization"
in the Offering Circular, and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iv) The Company and each of its subsidiaries has
been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except where the failure to have such power and
authority or be so qualified in any such jurisdiction would
not have a Material Adverse Effect (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company, provided that
such counsel shall state that she believes that both she and
the Purchasers are justified in relying upon such opinions and
certificates);
(v) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation,
except where the failure to be in good standing would not have
a Material Adverse Effect; and all of the issued shares of
capital stock of each such subsidiary have been duly and
validly authorized and issued, are fully paid and
non-assessable, and (except for directors' qualifying shares)
are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims, other
than as set forth in the Offering Circular (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
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upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that she
believes that both she and the Purchasers are justified in
relying upon such opinions and certificates);
(vi) The issuance and sale of the Securities have
been duly authorized by the Company, and the Securities, when
issued by the Company and duly executed and authenticated in
accordance with the terms of the Indenture, and when issued
and delivered to and paid for by you pursuant to the Purchase
Agreement, will be valid and legally binding obligations of
the Company entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or
in equity);
(vii) The Indenture has been duly authorized,
executed and delivered by the Company and is a valid and
legally binding agreement of the Company, enforceable against
the Company in accordance with its terms, except to the extent
that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity);
(viii) The Registration Rights Agreement has been
duly authorized, executed and delivered by the Company and is
a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except to the extent that (a) enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or
in equity), and (b) the enforceability of indemnification and
contribution provisions may be limited by Federal and state
securities laws and the policies underlying such laws;
(ix) Other than as set forth in the Offering
Circular, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or
in the aggregate, have a Material Adverse Effect, and, to such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(x) The Exchange Securities have been duly authorized
by the Company;
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(xi) The issuance and sale of the Securities by the
Company, the execution and delivery of the Indenture, the
Registration Rights Agreement and the Purchase Agreement by
the Company, compliance by the Company with the terms thereof
and the consummation by the Company of the transactions
contemplated thereby, each in accordance with its terms, will
not, to such counsel's knowledge, conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
except for any such conflict, breach, violation or default
which would not have a Material Adverse Effect, or any
material adverse effect on the issuance and sale of the
Securities or the consummation of any of the transactions
contemplated hereby or by the Indenture or the Registration
Rights Agreement nor will such action result in any violation
of the provisions of (i) the Amended and Restated Certificate
of Incorporation or the Amended and Restated By-Laws of the
Company or (ii) any statute or any order, rule or regulation
of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties, except in the case of clause (ii)
above, such violation which would not have a Material Adverse
Effect, or any material adverse effect on the issuance and
sale of the Securities or the consummation of any of the
transactions contemplated hereby or by the Indenture or the
Registration Rights Agreement; and
(xii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement, the Registration
Rights Agreement or the Indenture, except for the filing of a
registration statement by the Company with the Commission
under the Securities Act pursuant to the Registration Rights
Agreement and the related qualification of the Indenture under
the Trust Indenture Act in connection with the registration of
the Securities and Exchange Securities and such other
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws or the rules of the National Association of
Securities Dealers, Inc.
Such counsel has participated in conferences with officers and
other representatives of the Company, special counsel to the
Company, representatives of the independent accountants for
the Company, and the Purchasers and counsel for the Purchasers
at which the contents of the Offering Circular and related
matters were discussed, and, although such counsel is not
passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained
in the Offering Circular and have made no independent check or
verification thereof, on the basis of the foregoing, no facts
have come to such counsel's attention that have led such
counsel to believe that the Offering Circular, as of its date
or as of the date of such counsel's
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opinion, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading,
except that such counsel need express no opinion or belief
with respect to the financial statements and related notes and
other financial data included therein or excluded therefrom.
(d) On the date of the Offering Circular prior to the
execution of this Agreement and also at the Time of Delivery,
PricewaterhouseCoopers LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance reasonably satisfactory to you, substantially to the effect
set forth in Annex II hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included in the Offering Circular any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Offering Circular, and (ii) since the respective
dates as of which information is given in the Offering Circular there
shall not have been any change in the capital stock or long-term debt
of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, shareowners' equity or results
of operations of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Offering Circular, the effect of
which, in any such case described in clause (i) or (ii), is in the
judgment of the Purchasers so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated
in this Agreement and in the Offering Circular;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities, other
than the negative outlook with respect to the Company assigned by
Standard & Poor's Ratings Group on June 9, 1999 and Xxxxx'x Investors
Service, Inc. on June 15, 1999;
(g) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York
State authorities; (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this clause (iv) in the judgment of the Purchasers makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated
in the Offering Circular;
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or (v) the occurrence of any material adverse change in the existing
financial, political or economic conditions in the United States or
elsewhere which, in the judgment of the Purchasers, would materially
and adversely affect the financial markets or the markets for the
Securities and other debt securities;
(h) The Securities shall have been designated for trading on
PORTAL; and
(i) The Company shall have furnished or caused to be furnished
to you at the Time of Delivery certificates of officers of the Company
reasonably satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as you may reasonably
request.
8. (a) The Company will indemnify and hold harmless each Purchaser
against any losses, claims, damages or liabilities, joint or several,
to which such Purchaser may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Offering Circular or the Offering Circular, or any
amendment or supplement thereto, 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 not misleading, and will reimburse each
Purchaser for any legal or other expenses reasonably incurred by such
Purchaser in connection with investigating or defending any such action
or claim as such expenses are incurred. The Company shall not be
required to indemnify a Purchaser for any amount paid or payable by
such Purchaser in the settlement of any action, proceeding or
investigation, without the written consent of the Company, which
consent shall not be unreasonably withheld or delayed; provided,
however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Offering Circular
or the Offering Circular or any such amendment or supplement in
reliance upon and in conformity with written information furnished to
the Company by any Purchaser through Xxxxxxx, Xxxxx & Co. expressly for
use therein.
(b) Each Purchaser will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Offering
Circular or the Offering Circular, or any amendment or supplement
thereto, 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 not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in any Preliminary Offering
Circular or the Offering Circular or any such amendment or supplement
in reliance upon and in conformity with written
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information furnished to the Company by such Purchaser through Xxxxxxx,
Sachs & Co. expressly for use therein; and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as
such expenses are incurred and documented.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party be counsel to the
indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Purchasers on the other from the
offering of the Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the
Purchasers on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Purchasers on the other
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shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by
the Purchasers, in each case as set forth in the Offering Circular. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Purchasers
on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Purchasers agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Purchasers were treated
as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), no Purchaser shall be required
to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to
investors were offered to investors exceeds the amount of any damages
which such Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The Purchasers' obligations in this subsection (d)
to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Purchaser within the meaning of the Act; and
the obligations of the Purchasers under this Section 8 shall be in
addition to any liability which the respective Purchasers may otherwise
have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who
controls the Company within the meaning of the Act.
9. (a) If any Purchaser shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to
purchase such Securities on the terms contained herein. If within
thirty-six hours after such default by any Purchaser you do not arrange
for the purchase of such Securities, then the Company shall be entitled
to a further period of thirty-six hours within which to procure another
party or other parties satisfactory to you to purchase such Securities
on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the
purchase of such Securities, or the Company notifies you that it has so
arranged for the purchase of such Securities, you or the Company shall
have the right to postpone the Time of Delivery for a period of not
more than seven days, in order to effect whatever changes may thereby
be made necessary in the Offering Circular, or
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in any other documents or arrangements, and the Company agrees to
prepare promptly any amendments to the Offering Circular which in your
opinion may thereby be made necessary. The term "PURCHASER" as used in
this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to this
Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Purchaser or Purchasers by
you and the Company as provided in subsection (a) above, the aggregate
principal amount of such Securities which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of all the
Securities, then the Company shall have the right to require each
non-defaulting Purchaser to purchase the principal amount of Securities
which such Purchaser agreed to purchase hereunder and, in addition, to
require each non-defaulting Purchaser to purchase its pro rata share
(based on the principal amount of Securities which such Purchaser
agreed to purchase hereunder) of the Securities of such defaulting
Purchaser or Purchasers for which such arrangements have not been made;
but nothing herein shall relieve a defaulting Purchaser from liability
for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Purchaser or Purchasers by
you and the Company as provided in subsection (a) above, the aggregate
principal amount of Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Securities,
or if the Company shall not exercise the right described in subsection
(b) above to require non-defaulting Purchasers to purchase Securities
of a defaulting Purchaser or Purchasers, then this Agreement shall
thereupon terminate, without liability on the part of any
non-defaulting Purchaser or the Company, except for the expenses to be
borne by the Company and the Purchasers as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Purchaser from liability for
its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Purchasers, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Purchaser or any controlling person of any Purchaser, or the Company, or
any officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Purchaser except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Purchasers through you for all out-of-pocket
expenses approved in writing by you, including reasonable fees and disbursements
of counsel, reasonably incurred by the Purchasers in making preparations for the
purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to any Purchaser except as provided in Sections 6 and
8 hereof.
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12. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or given
by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives at 00 Xxx Xxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; and if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Company set forth in the Offering Circular, Attention:
Corporate Secretary; provided, however, that any notice to a Purchaser pursuant
to Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Purchaser at its address set forth in its Purchasers'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Purchasers, the Company and to the extent provided in Sections 8
and 10 hereof, the officers and directors of the Company and each person who
controls the Company or any Purchaser, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Purchaser shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Purchasers, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Purchasers and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Purchasers is pursuant to the authority set forth in a form of Agreement
among Purchasers, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
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22
Very truly yours,
Vlasic Foods International Inc.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Vice President and Chief
Financial Officer
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxx Securities Inc.
Xxxxxx Brothers Inc.
X.X. Xxxxxx Securities Inc.
By: /s/ Xxxxxxx, Sachs & Co.
--------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Purchasers
23
SCHEDULE I
PRINCIPAL
AMOUNT OF
SECURITIES
TO BE
PURCHASER PURCHASED
--------- ---------
Xxxxxxx, Sachs & Co. ........................................ $100,000,000.00
Chase Securities Inc. ....................................... 60,000,000.00
Xxxxxx Brothers Inc..........................................
X.X. Xxxxxx Securities Inc................................... 20,000,000.00
--------------
Total............................................... $200,000,000
==============
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ANNEX I
(1) The Securities have not been and will not be registered under
the Act and may not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except in accordance with Regulation S
under the Act or pursuant to an exemption from the registration requirements of
the Act. Each Purchaser represents that it has offered and sold the Securities,
and will offer and sell the Securities (i) as part of its distribution at any
time and (ii) otherwise until 40 days after the later of the commencement of the
offering and the Time of Delivery, only in accordance with Rule 903 of
Regulation S, Rule 144A or pursuant to Paragraph 2 of this Annex I under the
Act. Accordingly, each Purchaser agrees that neither it, its affiliates nor any
persons acting on its or their behalf has engaged or will engage in any directed
selling efforts with respect to the Securities, and it and they have complied
and will comply with the offering restrictions requirement of Regulation S. Each
Purchaser agrees that, at or prior to confirmation of sale of Securities (other
than a sale pursuant to Rule 144A) or pursuant to Paragraph 2 of this Annex I,
it will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities from it during
the restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the later of the commencement of
the offering and the closing date, except in either case in accordance
with Regulation S (or Rule 144A if available) under the Securities Act.
Terms used above have the meaning given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
Each Purchaser further agrees that it has not entered and will not
enter into any contractual arrangement with respect to the distribution or
delivery of the Securities, except with its affiliates or with the prior written
consent of the Company.
In addition,
(A) except to the extent permitted under U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D) (the "D Rules"), (i) each Purchaser agrees
that it has not offered or sold, and during the restricted period will
not offer or sell, Securities in bearer form to a person who is within
the United States or its possessions or to a U.S. person, and (ii) it
has not delivered and will not deliver within the United States or its
possessions definitive Securities in bearer form that are sold during
the restricted period;
(B) each Purchaser represents and agrees that it has, and
throughout the restricted period will have, in effect procedures
reasonably designed to ensure that its employees or agents who are
directly engaged in selling Securities in bearer form are aware that
such Securities may not be offered or sold during the restricted period
to a person who is within the
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25
United States or its possessions or to a United States person, except
as permitted by the D Rules;
(C) if it is a United States person, each such Purchaser
represents that it is acquiring the Securities in bearer form for
purposes of resale in connection with their original issuance and if it
retains Securities in bearer form for its own account, it will only do
so in accordance with the requirements of U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(6); and
(D) with respect to each affiliate that acquires from it
Securities in bearer form for the purpose of offering or selling such
Securities during the restricted period, such Purchaser either (i)
repeats and confirms the representations and agreements contained in
clauses (A), (B) and (C) on its behalf or (ii) agrees that it will
obtain from such affiliate for the Company's benefit the
representations and agreements contained in clauses (A), (B) and (C).
Terms used in this paragraph have the meanings given to them by the United
States Internal Revenue Code and regulations thereunder, including the D Rules.
(2) Notwithstanding the foregoing, Securities in registered form
may be offered, sold and delivered by the Purchasers in the United States and to
U.S. persons pursuant to Section 3 of this Agreement without delivery of the
written statement required by paragraph (1) above.
(3) Each Purchaser further represents and agrees that (i) it has
not offered or sold and prior to the date six months after the date of issue of
the Securities will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995, (b) it
has complied, and will comply, with all applicable provisions of the Financial
Services Act of 1986 of Great Britain with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United Kingdom,
and (c) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issuance of
the Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996
of Great Britain or is a person to whom the document may otherwise lawfully be
issued or passed on.
(4) Each Purchaser agrees that it will not offer, sell or deliver
any of the Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws thereof,
and that it will take at its own expense whatever action is required to permit
its purchase and resale of the Securities in such jurisdictions. Each Purchaser
understands that no action has been taken to permit a public offering in any
jurisdiction outside the United States where action would be required for such
purpose. Each Purchaser agrees not to cause any advertisement of the Securities
to be published in any newspaper or periodical or posted in any public place and
not to issue any circular relating to the Securities, except in any such case
with the Company's and Xxxxxxx, Xxxxx & Co.'s express written consent and then
only at such Purchaser's own risk and expense.
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26
ANNEX II
Pursuant to Section 7(e) of the Purchase Agreement, the accountants
shall furnish a letter to the Purchasers in the form attached hereto.
[see attached].
