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DAY INTERNATIONAL GROUP, INC. Exhibit 1.1
$115,000,000
9 1/2% SENIOR SUBORDINATED NOTES DUE 2008
35,000 SHARES
OF 12 1/4% SENIOR EXCHANGEABLE PREFERRED STOCK DUE 2010
(LIQUIDATION PREFERENCE $1,000 PER SHARE)
PURCHASE AGREEMENT
March 13, 1998
SOCIETE GENERALE SECURITIES CORPORATION
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Day International Group, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell $115,000,000 principal amount of its 9
1/2% Senior Subordinated Notes due 2008 (the "Notes") and 35,000 shares of its
12 1/4% Senior Exchangeable Preferred Stock due 2010 (Liquidation Preference
$1,000 per share) (the "Preferred Stock"). The Notes are to be issued pursuant
to an Indenture dated as of March 16, 1998 (the "Indenture") to be entered into
among the Company, Day International, Inc., a Delaware corporation (the
"Guarantor") and The Bank of New York, as trustee (the "Trustee"). Pursuant to
the terms of the Company's Certificate of Designations for the Preferred Stock
(the "Certificate of Designations"), the Preferred Stock shall be exchangeable,
in whole and not in part, at the option of the Company, into 12 1/4% Exchange
Debentures due 2010 (the "Debentures"), which, when issued, shall be issued
pursuant to the provisions of an indenture (the "Debenture
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Indenture") between the Company and The Bank of New York, as trustee (the
"Debenture Trustee").
This is to confirm the agreement concerning the concurrent
purchase of the Notes and the Preferred Stock from the Company by Societe
Generale Securities Corporation (the "Initial Purchaser"). Payment of principal
of, premium, liquidated damages or expenses, if any, and interest on the Notes
will be unconditionally guaranteed, jointly and severally, on a senior
subordinated basis by the Guarantor (the "Guarantee," together with the Notes,
the Preferred Stock and the Debentures, the "Securities") and any newly acquired
or created Domestic Subsidiary that is a Significant Subsidiary (as such terms
are defined in the Indenture).
The Notes and the Preferred Stock will be concurrently offered
and sold to the Initial Purchaser without being registered under the Securities
Act of 1933, as amended (the "Securities Act"), in reliance upon an exemption
therefrom. The Company has prepared a preliminary offering memorandum dated
February 27, 1998 (the "Preliminary Offering Memorandum") and will prepare an
offering memorandum dated the date hereof (the "Offering Memorandum") setting
forth information concerning the Company and the Securities. Copies of the
Preliminary Offering Memorandum have been, and copies of the Offering Memorandum
will be, delivered by the Company to the Initial Purchaser pursuant to the terms
of this Agreement (the "Agreement"). Any references herein to the Preliminary
Offering Memorandum and the Offering Memorandum shall be deemed to include all
amendments and supplements thereto, unless otherwise noted. The Company hereby
confirms that it has authorized the use of the Preliminary Offering Memorandum
and the Offering Memorandum in connection with the offering and resale of the
Securities by the Initial Purchaser in accordance with Section 2.
Holders of the Notes and the Preferred Stock (including the
Initial Purchaser and their direct and indirect transferees) will be entitled to
the benefits of a Registration Rights Agreement, substantially in the form
attached hereto as Annex A (the "Registration Rights Agreement"), pursuant to
which the Company and the Guarantor will agree to file with the Securities and
Exchange Commission (the "Commission") (i) a registration statement under the
Securities Act (the "Exchange Offer Registration Statement") relating to an
issue of subordinated notes of the Company (the "Exchange Notes") which are
identical in all material respects to the Notes (except that the Exchange Notes
will not contain terms with respect to transfer restrictions) and (A) an issue
of preferred stock of the Company (the "Exchange Preferred") or (B) an issue of
subordinated debentures (the "Exchange Debentures," together with the Exchange
Notes and the Exchange Preferred, the "Exchange Securities") which are identical
in all material respects, respectively, to the Preferred Stock and the
Debentures
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(except that the Exchange Preferred and the Exchange Debentures will not contain
terms with respect to transfer restrictions) and (ii) under certain
circumstances, a shelf registration statement pursuant to Rule 415 under the
Securities Act (the "Shelf Registration Statement," together with the Exchange
Offer Registration Statement, the "Registration Statements") relating to the
sale of the Notes, Preferred Stock and, if applicable, the Debentures, and to
use their best efforts to cause such Registration Statements to be declared
effective.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE GUARANTOR.
The Company and the Guarantor represent and warrant to and agree, jointly and
severally, with the Initial Purchaser that:
(a) Accurate Information. Each of the Preliminary Offering
Memorandum and the Offering Memorandum, as of its respective date, did
not, and on the Closing Date the Offering Memorandum will not, contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided that neither the Company nor any
Guarantor makes any representation or warranty as to information
contained in or omitted from the Preliminary Offering Memorandum or the
Offering Memorandum in reliance upon and in conformity with written
information relating to the Initial Purchaser furnished to the Company
and the Guarantor by or on behalf of the Initial Purchaser specifically
for use therein (the "Initial Purchaser's Information").
(b) Compliance with Securities Act. Each of the Preliminary
Offering Memorandum and the Offering Memorandum, as of its respective
date, contains all of the information that, if requested by a
prospective purchaser of the Securities, would be required to be
provided to such prospective purchaser pursuant to Rule 144A(d)(4)
under the Securities Act.
(c) No Registration Required. Assuming the accuracy of the
representations and warranties of the Initial Purchaser contained in
Section 2 and its compliance with the agreements set forth therein, it
is not necessary, in connection with the issuance and sale of the
Securities to the Initial Purchaser and the offer, resale and delivery
of the Securities by the Initial Purchaser in the manner contemplated
by this Agreement and the Offering Memorandum, to register the
Securities under the Securities Act or to qualify the Indenture or the
Debenture Indenture under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act").
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(d) Corporate Existence; Compliance with Law. The Company and
each of its subsidiaries (as defined in Section 14) have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority necessary
to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to so
qualify or have such power or authority would not have, singularly or
in the aggregate, a material adverse effect on the condition (financial
or otherwise), results of operations, business or prospects of the
Company and its subsidiaries taken as a whole (a "Material Adverse
Effect").
(e) Corporate Power; Authorization. Each of the Company and
the Guarantor has full right, power and authority to execute and
deliver this Agreement, the Registration Rights Agreement, the
Indenture, the Certificate of Designations relating to the Preferred
Stock, the Debenture Indenture and the Securities (collectively, the
"Transaction Documents") and to perform its respective obligations
hereunder and thereunder; and all corporate action required to be taken
for the due and proper authorization, execution and delivery of each of
the Transaction Documents and the consummation of the transactions
contemplated by this Agreement and the Indenture have been duly and
validly taken.
(f) Enforceable Obligations.
(i) The Indenture, when duly executed by the proper
officers of the Company and the Guarantor and delivered by the
Company and the Guarantor, assuming due authorization,
execution and delivery thereof by the Trustee, will constitute
a valid and binding agreement of the Company and the Guarantor
enforceable against the Company and the Guarantor in
accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing;
(ii) The Debenture Indenture, when duly executed by
the proper officers of the Company and delivered by the
Company, assuming due authorization, execution and delivery
thereof by the Debenture Trustee, will constitute a valid
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and binding agreement of the Company enforceable against the
Company in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
(iii) The Registration Rights Agreement, when duly
executed by the proper officers of the Company and the
Guarantor and delivered by the Company and the Guarantor,
assuming due authorization, execution and delivery thereof by
the Trustee, will constitute a valid and binding agreement of
the Company and the Guarantor, respectively, enforceable
against them in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
(iv) The Guarantee, when duly executed by the proper
officers of each of the Guarantor, and executed and delivered
in accordance with the provisions of the Indenture and, upon
the execution, authentication and delivery of the Notes and
payment therefor, will constitute a valid and binding
obligation of the Guarantor enforceable against the Guarantor
in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing;
(v) The Notes, when duly executed by the proper
officers of the Company, will constitute valid and binding
obligations of the Company enforceable against the Company in
accordance with the provisions of the Indenture, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
(vi) The Preferred Stock, when duly executed by the
proper officers of the Company, will be validly issued, fully
paid and non-assessable, and the
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issuance of the Preferred Stock is not subject to preemptive
or other similar rights of any security holder of the Company
arising by operation of law, under the certificate and by-laws
of the Company or under any agreement to which the Company or
any of its subsidiaries is a party;
(vii) The Debentures, when duly executed by the
proper officers of the Company and, when issued and delivered
in exchange for the Preferred Stock in accordance with the
Certificate of Designations and the Debenture Indenture, will
constitute valid and binding obligations of the Company
enforceable against the Company in accordance with the
provisions of the Debenture Indenture, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
and
(viii) The Indenture, the Debenture Indenture, the
Registration Rights Agreement, the Certificate of Designations
and the Securities conform in all material respects to the
descriptions thereof contained in the Offering Memorandum.
(g) Capitalization of the Company. Upon the completion of the
transactions described in the Offering Memorandum, the Company will
have an authorized capitalization as set forth in the Offering
Memorandum, and all of the issued shares of capital stock of the
Company will have been duly and validly authorized and issued, are
fully paid and non-assessable and conform in all material respects to
the description thereof contained in the Offering Memorandum.
(h) Capitalization of Subsidiaries. All the outstanding shares
of capital stock of each subsidiary of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and,
except to the extent set forth in the Offering Memorandum, are owned by
the Company directly or indirectly through one or more wholly-owned
subsidiaries (or are owned by nominees of the Company or directors of
its subsidiaries), free and clear of any claim, lien, encumbrance,
security interest, restriction upon voting or transfer or any other
claim of any third party.
(i) No Legal Bar. Assuming the proposed amendments to the
indenture governing the 11 1/8% Senior Subordinated Notes due 2005
become effective under the first supplemental indenture thereto, the
execution, delivery and performance of
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each of the Transaction Documents by the Company and the Guarantor and
the consummation of the transactions contemplated hereby and thereby
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 material
indenture, mortgage, deed of trust, loan agreement or other material
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, nor will such actions result in any violation
of the provisions of the charter or by-laws of the Company or any of
its subsidiaries or 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 or
assets.
(j) No Further Requirements. Except for such consents,
approvals, authorizations, registrations or qualifications (i) which
shall have been obtained or made prior to the Closing Date and (ii) as
may be required to be obtained under the Securities Exchange Act of
1934, as amended (the "Exchange Act") and applicable state securities
laws in connection with the purchase and distribution of the Securities
by the Initial Purchaser, no consent, approval, authorization or order
of, or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and performance
of each of the Transaction Documents by the Company or the Guarantor
and the consummation of the transactions contemplated hereby and
thereby.
(k) Financial Statements. Deloitte & Touche LLP and Xxxxxx
Xxxxxxxx LLP are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of Rule 101 of
the Code of Professional Conduct of the American Institute of Certified
Public Accountants ("AICPA") and its interpretations and rulings
thereunder. The historical financial statements (including the related
notes) contained in the Offering Memorandum comply in all material
respects with the requirements applicable to a registration statement
on Form S-1 under the Securities Act (except that certain supporting
schedules are omitted); such financial statements have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods covered thereby and fairly present in
all material respects the financial position of the entities purported
to be covered thereby at the respective dates indicated and the results
of their operations and their cash flows for the respective periods
indicated; and the financial information contained in the Offering
Memorandum under the headings "Summary--Summary Historical and Pro
Forma Financial Information," "Capitalization," "Selected Historical
Financial Data" and "Management's Discussion and Analysis of Financial
Condition and Results of
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Operations" are derived from the accounting records of the Company and
its subsidiaries and fairly present in all material respects the
information purported to be shown thereby. The pro forma financial
information contained in the Offering Memorandum has been prepared on a
basis consistent with the historical financial statements contained in
the Offering Memorandum (except for the pro forma adjustments specified
therein), includes all material adjustments to the historical financial
information required by Rule 11-02 of Regulation S-X under the
Securities Act and the Exchange Act to reflect the transactions
described in the Offering Memorandum, gives effect to assumptions made
on a reasonable basis and fairly presents in all material respects the
historical and proposed transactions contemplated by the Offering
Memorandum and the Transaction Documents. The other historical
financial and statistical information and data included in the Offering
Memorandum are, in all material respects, fairly presented.
(l) No Material Adverse Change. Neither the Company nor any of
its subsidiaries has sustained, since the date of the latest audited
financial statements included in the Offering Memorandum, any material
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 Memorandum; and,
since such date, there has not been any 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 business, general affairs,
management, financial position, stockholders' 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 Memorandum.
(m) No Material Litigation. There is no legal or governmental
proceeding pending to which the Company or any of its subsidiaries is a
party or of which any property or assets of the Company or any of its
subsidiaries is the subject which, singularly or in the aggregate, if
determined adversely to the Company or any of its subsidiaries, is
reasonably likely to have a Material Adverse Effect; and to the best of
the Company's and the Guarantor's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(n) No Defaults. Neither the Company nor any of its
subsidiaries (i) is in violation of its charter or by-laws, (ii) is in
default in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition
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contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its property or assets is subject
or (iii) is in violation in any respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its
property or assets may be subject, except any violations or defaults
which, singularly or in the aggregate, would not have a Material
Adverse Effect.
(o) Possession of Licenses and Permits. The Company and each
of its subsidiaries possess all material licenses, certificates,
authorizations and permits issued by, and have made all declarations
and filings with, the appropriate state, federal or foreign regulatory
agencies or bodies which are necessary or desirable for the ownership
of their respective properties or the conduct of their respective
businesses as described in the Offering Memorandum, except where any
failures to possess or make the same, singularly or in the aggregate,
would not have a Material Adverse Effect, and the Company has not
received notification of any revocation or modification of any such
license, authorization or permit and has no reason to believe that any
such license, certificate, authorization or permit will not be renewed.
(p) No Lending Relationships. Except as disclosed in the
Offering Memorandum, to the best knowledge of the Company, the Company
(i) does not have any material lending or other relationship with any
bank or lending affiliate of the Initial Purchaser and (ii) does not
intend to use any of the proceeds from the sale of the Securities
hereunder to repay any outstanding debt owed to any affiliate of the
Initial Purchaser.
(q) Investment Company Act. Neither the Company nor any of
its subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company
Act"), and the rules and regulations of the Commission thereunder.
(r) No Stabilization. Neither the Company, nor any of its
subsidiaries, has taken or may take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation
of the price of the Securities to facilitate the sale or resale of the
Securities.
(s) Possession of Intellectual Property. The Company and each
of its subsidiaries own or possess adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service
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mark registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the
conduct of their respective businesses, except where the failure to own
or possess such rights or use such intellectual properties would not,
individually or in the aggregate, have a Material Adverse Effect and
have no reason to believe that the conduct of their respective
businesses will conflict with, and have not received any notice of any
claim of conflict with, any such rights of others, except where such
claim would not, individually or in the aggregate, have a Material
Adverse Effect.
(t) Title to Property. The Company and each of its
subsidiaries have good and (in the case of real property) marketable
title in fee simple to, or have valid rights to lease or otherwise use,
all items of real or personal property which are material to the
business of the Company and its subsidiaries taken as a whole, in each
case free and clear of all liens, encumbrances, claims and defects that
could reasonably be expected to have a Material Adverse Effect.
(u) No Labor Dispute. No labor disturbance by the employees
of the Company or any of its subsidiaries exists or, to the best of the
Company's knowledge, is imminent which in either case could reasonably
be expected to have a Material Adverse Effect.
(v) Employee Benefit Plans. No "prohibited transaction" (as
defined in Section 406 of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"), or Section 4975 of the Internal
Revenue Code of 1986, as amended from time to time (the "Code")) or
"accumulated funding deficiency" (as defined in Section 302 of ERISA)
or any of the events set forth in Section 4043(b) of ERISA (other than
events with respect to which the 30-day notice requirement under
Section 4043 of ERISA has been waived) has occurred during the five
year period prior to the date hereof with respect to any employee
benefit plan of the Company or any of its subsidiaries which could
reasonably be expected to have a Material Adverse Effect; each such
employee benefit plan of the Company or any of its subsidiaries is in
compliance in all material respects with applicable law, including
ERISA and the Code; the Company has not incurred during the five year
period prior to the date hereof and does not expect to incur liability
under Title IV of ERISA with respect to the termination of, or
withdrawal from, any "pension plan" which could reasonably be expected
to have a Material Adverse Effect; and each "pension plan" (as defined
in ERISA) for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the
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Code is so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which could reasonably be
expected to cause the loss of such qualification.
(w) No Material Environmental Liabilities. Except as described
in the Offering Memorandum, there has been no storage, generation,
transportation, handling, treatment, disposal, discharge, emission, or
other release of any kind of toxic or other wastes or other hazardous
substances by, due to, or caused by the Company or any of its
subsidiaries (or, to the best of the Company's knowledge, any other
entity for whose acts or omissions the Company or any of its
subsidiaries is or could reasonably be expected to be liable) upon any
of the property now or previously owned or leased by the Company or any
of its subsidiaries, or upon any other property, in violation of any
statute or any ordinance, rule, regulation, order, judgment, decree or
permit or which would, under any statute or any ordinance, rule
(including rule of common law), regulation, order, judgment, decree or
permit, give rise to any liability, except for any violation or
liability which would not have, singularly or in the aggregate with all
such violations and liabilities, a Material Adverse Effect; there has
been no disposal, discharge, emission or other release of any kind onto
such property or into the environment surrounding such property of any
toxic or other wastes or other hazardous substances with respect to
which the Company or any of its subsidiaries have knowledge, except for
any such disposal, discharge, emission, or other release of any kind
which would not have, singularly or in the aggregate with all such
discharges and other releases, a Material Adverse Effect.
(x) Taxes. The Company and its subsidiaries each (i) has filed
all material federal, state and foreign income and franchise tax
returns which it is required to file, (ii) has paid all taxes shown
thereon to be due and payable and all other federal, state, local and
foreign taxes due and payable for which it is liable, including, but
not limited to, withholding taxes and amounts payable under the Code,
and has furnished all material information returns it is required to
furnish pursuant to the Code (other than any taxes with respect to
which the failure to pay, in the aggregate, would not have a Material
Adverse Effect or taxes the amount or validity of which are currently
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves have been established in accordance
with GAAP) and (iii) does not have any tax deficiency or claims
outstanding or assessed or, to the best of the Company's knowledge,
proposed in writing against it which could reasonably be expected to
have a Material Adverse Effect.
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(y) Insurance Policies. The Company and each of its
subsidiaries have insurance covering their respective properties,
operations, personnel and businesses, adequate and suitable
for its business and comparable to insurance customarily carried by
comparable companies similarly situated and carrying on the same or
similar business. Neither the Company nor any of its subsidiaries has
received notice from any insurer or agent of such insurer that material
capital improvements or other material expenditures are required or
necessary to be made in order to continue such insurance.
(z) Accounting Controls. The Company and each of its
subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is computed with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(aa) Minute Books. The minute books of the Company and each of
its subsidiaries have been made available to the Initial Purchaser and
counsel for the Initial Purchaser, and such books (i) contain in all
material respects a complete summary of all meetings and actions of the
directors and stockholders of the Company and each of its subsidiaries
since the time of its respective incorporation through the date of the
latest meeting and action, and (ii) accurately in all material respects
reflect all transactions referred to in such minutes.
(bb) Transactions with Management and Others. No relationship,
direct or indirect, exists between or among the Company or the
Guarantor on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company or the Guarantor on the other
hand, which is required to be described in the Offering Memorandum and
which is not so described.
(cc) No Outstanding Subscriptions. Except as described in the
Offering Memorandum, there are no outstanding subscriptions, rights,
warrants, calls or options to acquire, or instruments convertible into
or exchangeable for, or agreements or understandings with respect to
the sale or issuance of, any shares of capital stock of or other equity
or other ownership interest in the Company or any of its subsidiaries.
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(dd) Solvency. On and immediately after the Closing Date, the
Company (after giving effect to the issuance of the Securities and to
the other transactions related thereto as described in the Offering
Memorandum) will be Solvent. As used in this paragraph, the term
"Solvent" means, with respect to a particular date, that on such date
(i) the present fair market value (or present fair saleable value) of
the assets of the Company is not less than the total amount required to
pay the probable liabilities of the Company on its total existing debts
and liabilities (including contingent liabilities) as they become
absolute and matured, (ii) the Company is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations
and commitments as they mature and become due in the normal course of
business, (iii) assuming the sale of the Securities as contemplated by
this Agreement and the Offering Memorandum, the Company is not
incurring debts or liabilities beyond its ability to pay as such debts
and liabilities mature and (iv) the Company is not engaged in any
business or transaction, and is not about to engage in any business or
transaction, for which its property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in
the industry in which the Company is engaged. In computing the amount
of such contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount that, in the light of all
the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
(ee) No Margin Securities. Neither the Company nor any of its
subsidiaries owns any "margin securities" as that term is defined in
Regulations G and U of the Board of Governors of the Federal Reserve
System (the "Federal Reserve Board"), and none of the proceeds of the
sale of the Securities will be used, directly or indirectly, for the
purpose of purchasing or carrying any margin security, for the purpose
of reducing or retiring any indebtedness which was originally incurred
to purchase or carry any margin security or for any other purpose which
might cause any of the Securities to be considered a "purpose credit"
within the meanings of Regulation G, T, U or X of the Federal Reserve
Board.
(ff) No Brokerage Fees. Neither the Company nor any of its
subsidiaries is a party to any contract, agreement or understanding
with any person that would give rise to a valid claim against the
Company or the Initial Purchaser for a brokerage commission, finder's
fee or like payment in connection with the offering and sale of the
Securities other than fees payable to the Initial Purchaser in
connection with the Offering and the sale of the Securities.
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(gg) Compliance with 144A(d)(3). The Securities satisfy the
eligibility requirements of Rule 144A(d)(3) under the Securities Act.
(hh) No Offers to Buy. Neither the Company nor any of its
affiliates has, directly or through any agent, sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any
security (as such term is defined in the Securities Act), which is or
will be integrated with the sale of the Securities in a manner that
would require registration of the Securities under the Securities Act.
(ii) No General Solicitation. None of the Company or any of
its affiliates or any other person acting on its or their behalf has
engaged, in connection with the offering of the Securities, in any form
of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act.
(jj) No Registered Securities. There are no securities of the
Company registered under the Exchange Act or listed on a national
securities exchange or quoted in a U.S. automated inter-dealer
quotation system.
(kk) Compliance with Regulation M. The Company has not taken
and will not take, directly or indirectly, any action prohibited by
Regulation M under the Exchange Act in connection with the offering of
the Securities.
(ll) No Forward-Looking Statement. No forward-looking
statement (within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in the Preliminary Offering
Memorandum or the Offering Memorandum has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good
faith.
(mm) No Commerce with Cuba. None of the Company or any of its
subsidiaries does business with the government of Cuba or with any
person or affiliate located in Cuba within the meaning of Florida
Statutes Section 517.075.
2. PURCHASE AND RESALE OF THE SECURITIES. (a) On the basis of
the representations, warranties and agreements contained herein, and subject to
the terms and conditions set forth herein, the Company agrees to issue and sell
to the Initial Purchaser and the Initial Purchaser agrees to purchase from the
Company, (i) the principal amount of Notes set forth in Schedule 1 hereto at a
purchase price equal to 99.638% of the principal amount thereof and (ii) the
number of shares of Preferred Stock set forth in Schedule 1 hereto at a purchase
price of $996.75 per share. The Company shall not be obligated to deliver any of
the
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Notes or Preferred Stock except upon payment for all the Notes and Preferred
Stock to be purchased as provided herein.
(b) The Initial Purchaser has advised the Company that it
proposes to offer the Securities for resale upon the terms and subject to the
conditions set forth herein and in the Offering Memorandum. The Initial
Purchaser represents and warrants to, and agrees with, the Company that (i) it
is purchasing the Securities pursuant to a private sale exempt from registration
under the Securities Act, (ii) it has not solicited offers for, or offered or
sold, and will not solicit offers for, or offer or sell, the Securities by means
of any form of general solicitation or general advertising within the meaning of
Rule 502(c) of Regulation D under the Securities Act ("Regulation D") or in any
manner involving a public offering within the meaning of Section 4(2) of the
Securities Act and (iii) it has solicited and will solicit offers for the
Securities only from, and has offered or sold and will offer, sell or deliver
the Securities, as part of its initial offering, only to (A) persons whom it
reasonably believes to be qualified institutional buyers ("Qualified
Institutional Buyers") as defined in Rule 144A under the Securities Act, 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
it that each such account is a Qualified Institutional Buyer to whom notice has
been given that such sale or delivery is being made in reliance on Rule 144A and
in each case, in transactions in accordance with Rule 144A and (B) outside the
United States in accordance with Regulation S under the Securities Act
("Regulation S"). The Initial Purchaser agrees that, prior to or simultaneously
with the confirmation of sale by the Initial Purchaser to any purchaser of any
of the Securities purchased by the Initial Purchaser from the Company pursuant
hereto, the Initial Purchaser shall furnish to that purchaser a copy of the
Offering Memorandum (and any amendment or supplement thereto that the Company
shall have furnished to the Initial Purchaser prior to the date of such
confirmation of sale). In addition to the foregoing, the Initial Purchaser
acknowledges and agrees that the Company and, for purposes of the opinions to be
delivered to the Initial Purchaser pursuant to Sections 5(d) and (e), counsel
for the Company and for the Initial Purchaser, respectively, may rely upon the
accuracy of the representations and warranties of the Initial Purchaser and its
compliance with its agreements contained in this Section 2, and the Initial
Purchaser hereby consents to such reliance.
(c) The Company acknowledges and agrees that the Initial
Purchaser may sell Securities to any of its affiliates and that any such
affiliate may sell Securities purchased by it to the Initial Purchaser.
3. DELIVERY OF AND PAYMENT FOR THE SECURITIES. Delivery of and
payment for the Securities shall be made at the offices of Xxxxxxx Xxxxxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX, or at such other place as shall be
agreed upon by the Initial Purchaser
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and the Company, at 10:00 A.M., New York City time, on March 18, 1998, or at
such other date or time, not later than seven full business days thereafter, as
shall be agreed upon by the Initial Purchaser and the Company (such date and
time being referred to herein as the "Closing Date").
The Securities to be purchased by the Initial Purchaser
hereunder and sold to Qualified Institutional Buyers or in offshore transactions
to persons other than "U.S. Persons," as defined in Regulation S shall be
represented, respectively, by three global securities, consisting of Rule 144A
Global Notes, Regulation S Global Notes and Institutional Accredited Investor
Global Notes (as such terms are defined in the Offering Memorandum), 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, and in the case of
the Preferred Stock, shall be in definitive or global form in such denominations
and registered in such names as the Initial Purchaser may request at least two
days prior to the Closing Date. On the Closing Date, the Company shall deliver
or cause to be delivered the Securities to the Initial Purchaser against payment
to or upon the order of the Company of the purchase price by wire transfer
payable in Federal (same day) funds by causing the DTC to credit the Securities
to the account of the Initial Purchaser at the DTC.
Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of the Initial Purchaser hereunder. The Company shall make the
certificates representing the Securities available for inspection by the Initial
Purchaser and for delivery to the DTC or its designated custodian in New York,
New York, not later than two full business days prior to the Closing Date.
4. FURTHER AGREEMENTS OF THE COMPANY AND THE GUARANTOR. The
Company and the Guarantor agree with the Initial Purchaser:
(a) to advise the Initial Purchaser promptly and, if
requested, confirm such advice in writing, of the happening of any
event which makes any statement of a material fact made in the Offering
Memorandum untrue or which requires the making of any additions to or
changes in the Offering Memorandum (as amended or supplemented from
time to time) in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; to advise
the Initial Purchaser promptly of any order preventing or suspending
the use of the Preliminary Offering Memorandum or the Offering
Memorandum, of any suspension of the qualification of the Securities
for offering or sale in any jurisdiction and of the initiation or
threatening of any proceeding for any such purpose; and to use its best
efforts to prevent the issuance of any such order preventing or
suspending the use of the
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Preliminary Offering Memorandum or the Offering Memorandum or
suspending any such qualification and, if any such suspension is
issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to the Initial Purchaser and counsel
for the Initial Purchaser, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum (and any
amendments or supplements thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to the
Offering Memorandum, to furnish a copy thereof to the Initial Purchaser
and counsel for the Initial Purchaser and not to effect any such
amendment or supplement to which the Initial Purchaser shall reasonably
object by notice to the Company after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the
Securities by the Initial Purchaser, any event shall occur or condition
exist as a result of which it is necessary, in the opinion of counsel
for the Initial Purchaser or counsel for the Company, to amend or
supplement the Offering Memorandum in order that the Offering
Memorandum will not include 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 existing at the time it is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Offering Memorandum to comply with applicable
law, to promptly prepare and furnish to the Initial Purchaser such
amendment or supplement as may be necessary to correct such untrue
statement or omission or so that the Offering Memorandum, as so amended
or supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, to furnish to holders of the Securities and prospective
purchasers of the Securities designated by such holders, upon request
of such holders or such prospective purchasers, the information
required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act, unless the Company is then subject to and in compliance
with Section 13 or 15(d) of the Exchange Act (the foregoing agreement
being for the benefit of the holders from time to time of the
Securities and prospective purchasers of the Securities designated by
such holders);
(f) for so long as the Securities are outstanding, to furnish
to the Initial Purchaser copies of any annual reports, quarterly
reports and current reports filed by
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the Company with the Commission on Forms 10-K, 10-Q and 8-K, or such
other similar forms as may be designated by the Commission, and such
other documents, reports and information as shall be furnished by the
Company to the Trustee or to the holders of the Securities pursuant to
the Indenture or the Exchange Act or any rule or regulation of the
Commission thereunder;
(g) to promptly take from time to time such actions as the
Initial Purchaser may reasonably request to qualify the Securities for
offering and sale under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchaser may designate and to continue
such qualifications in effect for so long as required for the resale of
the Securities; and to arrange for the determination of the eligibility
for investment of the Securities under the laws of such jurisdictions
as the Initial Purchaser may reasonably request; provided that the
Company and its subsidiaries shall not be obligated to qualify as
foreign corporations in any jurisdiction in which they are not so
qualified or to file a general consent to service of process in any
jurisdiction;
(h) to assist the Initial Purchaser in arranging for the
Securities to be designated Private Offerings, Resales and Trading
through Automated Linkages ("PORTAL") Market securities in accordance
with the rules and regulations adopted by the National Association of
Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL
Market and for the Securities to be eligible for clearance and
settlement through the DTC;
(i) not to, and to cause its affiliates not to, sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect of
any security (as such term is defined in the Securities Act) which
could be integrated with the sale of the Securities in a manner which
would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case
may be, not to, and to cause its affiliates not to, and not to
authorize or knowingly permit any person acting on their behalf to,
solicit any offer to buy or offer to sell the Securities by means of
any form of general solicitation or general advertising within the
meaning of Regulation D or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act; and not to
offer, sell, contract to sell or otherwise dispose of, directly or
indirectly, any securities under circumstances where such offer, sale,
contract or disposition would cause the exemption afforded by Section
4(2) of the Securities Act to cease to be applicable to the offering
and sale of the Securities as contemplated by this Agreement and the
Offering Memorandum;
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(k) During the period beginning from the date hereof and
continuing to, and including, the Closing Date or such earlier time as
the Initial Purchaser may notify the Company, not to offer for sale,
sell, contract to sell or otherwise dispose of, directly or indirectly,
or file a registration statement for, or announce any offering of, any
securities of the Company that are substantially similar to the
Securities.
(l) during the period from the Closing Date until two years
after the Closing Date, without the prior written consent of the
Initial Purchaser, not to, and not permit any of its affiliates (as
defined in Rule 144 under the Securities Act) to, resell any of the
Securities that have been reacquired by them, except for Securities
purchased by the Company or any of its affiliates and resold in a
transaction registered under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be
or become, or be or become owned by, an open-end investment company,
unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company
Act, and to not be or become, or be or become owned by, a closed-end
investment company required to be registered, but not registered
thereunder;
(n) in connection with the offering of the Securities, until
the Initial Purchaser shall have notified the Company of the completion
of the resale of the Securities, not to, and to cause its affiliated
purchasers (as defined in Regulation M under the Exchange Act) not to,
either alone or with one or more other persons, bid for or purchase,
for any account in which it or any of its affiliated purchasers has a
beneficial interest, any Securities, or attempt to induce any person to
purchase any Securities; and not to, and to cause its affiliated
purchasers not to, make bids or purchase for the purpose of creating
actual, or apparent, active trading in or of raising the price of the
Securities;
(o) in connection with the offering of the Securities, to make
its officers, employees, independent accountants and legal counsel
reasonably available upon request by the Initial Purchaser;
(p) to furnish to the Initial Purchaser on the date hereof a
copy of the independent accountants' report included in the Offering
Memorandum signed by the accountants rendering such report;
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(q) to do and perform all things required to be done and
performed by it under this Agreement that are within its control prior
to or after the Closing Date, and to use its best efforts to satisfy
all conditions precedent on its part to the delivery of the Securities;
(r) to not take any action prior to the execution and delivery
of the Indenture which, if taken after such execution and delivery,
would have violated any of the covenants contained in the Indenture or
the Debenture Indenture;
(s) to not take any action prior to the Closing Date which
would require the Offering Memorandum to be amended or supplemented
pursuant to Section 4(d);
(t) prior to the Closing Date, not to issue any press release
or other communication directly or indirectly or hold any press
conference with respect to the Company, its condition, financial or
otherwise, or earnings, business affairs or business prospects (except
for routine oral marketing communications in the ordinary course of
business and consistent with the past practices of the Company and of
which the Initial Purchaser is notified), without the prior written
consent of the Initial Purchaser, unless in the judgment of the Company
and its counsel, and after notification to the Initial Purchaser, such
press release or communication is required by law;
(u) to apply the net proceeds from the sale of the Securities
as set forth in the Offering Memorandum under the heading "Use of
Proceeds"; and
(v) to cause the Certificate of Designations to be filed with
the appropriate authorities prior to the Closing Date.
5. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The
obligations of the Initial Purchaser hereunder are subject to the accuracy, when
made and on the Closing Date, of the representations and warranties of the
Company and the Guarantor contained herein, to the accuracy of the statements of
the Company and the Guarantor made in any certificates pursuant to the
provisions hereof, to the performance by the Company and the Guarantor of their
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Company shall have received the consent of the
registered holders of at least a majority in principal amount of the
Company's outstanding 11 1/8% Senior Subordinated Notes due 2005 to
adopt the Proposed Amendments contained in, and as defined in, the
Company's Consent Solicitation Statement dated February
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20, 1998, as supplemented by the Supplement to the Consent Solicitation
Statement dated March 6, 1998 and by the Supplement to the Consent
Solicitation Statement dated March 12, 1998 and such Proposed
Amendments shall be effective.
(b) All corporate proceedings and other legal matters incident
to the authorization, form and validity of each of the Transaction
Documents and all other legal matters relating to the Transaction
Documents and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Initial
Purchaser, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable
them to pass upon such matters.
(c) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchaser as promptly as practicable on or following the date of this
Agreement or at such other date and time as to which the Initial
Purchaser may agree; and no stop order suspending the sale of the
Securities in any jurisdiction shall have been issued and no proceeding
for that purpose shall have been commenced or shall be pending or
threatened.
(d) The Initial Purchaser shall not have discovered and
disclosed to the Company on or prior to the Closing Date that the
Offering Memorandum or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of counsel for the
Initial Purchaser, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(e) Debevoise & Xxxxxxxx shall have furnished to the Initial
Purchaser such counsel's written opinion, as counsel to the Company,
addressed to the Initial Purchaser and dated the Closing Date, in form
and substance reasonably satisfactory to the Initial Purchaser, to the
effect that:
(i) each of the Company and the Guarantor has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of Delaware and each other
domestic jurisdiction identified by management of the Company
to such counsel in which the Company or the Guarantor, as the
case may be, own property or have significant operations and
has all requisite corporate power and authority necessary to
own or hold its properties and to conduct the businesses in
which it is engaged (except where the failure to so
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qualify or have such power or authority would not, singularly
or in the aggregate, have a Material Adverse Effect),
(ii) the Company has an authorized capitalization as
set forth in the Offering Memorandum, and the capital stock of
the Company conforms in all material respects to the
description thereof contained in the Offering Memorandum;
(iii) the statements in the Offering Memorandum under
the heading "United States Federal Tax Considerations",
insofar as such statements purport to summarize the Federal
laws of United States, fairly summarize such provisions
described therein in all material respects; and such counsel
does not have actual knowledge of any current or pending legal
or governmental actions, suits or proceedings which would be
required to be described in the Offering Memorandum if the
Offering Memorandum were a prospectus included in a
registration statement on Form S-1 which are not described as
so required;
(iv) the Indenture conforms in all material respects
with the requirements of the Trust Indenture Act and the rules
and regulations of the Commission applicable to an indenture
which is qualified thereunder;
(v) the Company and the Guarantor have full right,
power and authority to execute and deliver each of the
Transaction Documents to which it is a party and to perform
its obligations thereunder; and all corporate action required
to be taken for the due and proper authorization, execution
and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated thereby have
been duly and validly taken;
(vi) each of the Purchase Agreement and the
Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and the Guarantor and
constitutes a valid and legally binding agreement of the
Company and the Guarantor enforceable against the Company and
the Guarantor in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors'
rights generally and to general equity principles (whether
considered in a proceeding in equity or at law), an implied
covenant of good faith and fair dealing, the possible judicial
application of foreign governmental or judicial
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action affecting creditors' rights, and, in the case of
indemnification and contribution provisions therein,
considerations of public policy;
(vii) the Indenture has been duly authorized,
executed and delivered by the Company and the Guarantor and,
assuming due authorization, execution and delivery thereof by
the Trustee, constitutes a valid and legally binding agreement
of the Company and the Guarantor enforceable against the
Company and the Guarantor in accordance with its terms, except
as may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other
similar laws of general applicability relating to or affecting
creditors' rights generally and to general equity principles
(whether considered in a proceeding in equity or at law), an
implied covenant of good faith and fair dealing, the possible
judicial application of foreign laws or foreign governmental
or judicial action affecting creditors' rights, and, in the
case of indemnification and contribution provisions therein,
considerations of public policy;
(viii) the Securities have been duly authorized and
issued by the Company and, assuming due authentication thereof
by the Trustee in accordance with the terms of the Indenture
and upon payment and delivery in accordance with the Purchase
Agreement and the Indenture and in the case of the Debentures,
when issued and delivered in exchange for the Preferred Stock,
will constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their
terms, except as may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and other similar laws of general applicability relating to or
affecting creditors' rights generally and to general equity
principles (whether considered in a proceeding in equity or at
law), and an implied covenant of good faith and fair dealing
and the possible judicial application of foreign laws or
foreign governmental or judicial action affecting creditors'
rights;
(ix) the Preferred Stock has been duly executed by
the proper officers of the Company, will be validly issued,
fully paid and non-assessable, and the issuance of the
Preferred Stock is not subject to preemptive or other similar
rights of any security holder of the Company arising by
operation of law, under the certificate and by-laws of the
Company or under any agreement to which the Company or any of
its subsidiaries is a party;
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(x) each Transaction Document, to the extent
described in the Offering Memorandum, conforms in all material
respects to the description thereof contained in the Offering
Memorandum;
(xi) the execution, delivery and performance by the
Company and the Guarantor of each of the Purchase Agreement,
the Indenture and the Registration Rights Agreement, the
compliance by the Company and the Guarantor with the terms
thereof, the consummation of the transactions contemplated by
such documents and the issuance, authentication, sale and
delivery of the Securities 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 of the agreements and
instruments listed on Exhibit A hereto (which agreements and
instruments constitute all the agreements or instruments of
the Company or any of its domestic subsidiaries which are
listed in the Exhibit Index to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1997 and
which relate to the transactions contemplated by the
Transaction Documents (other than the Transaction Documents)),
nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any of
its subsidiaries or any existing Federal or New York State,
statute, rule or regulation or, to the knowledge of counsel,
any judgment, order, decree of any Federal or New York State
court or arbitrator or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets; and no consent, approval,
authorization or order of, or filing or registration with, any
such court or arbitrator or governmental agency or body under
any such statute, judgment, order, decree, rule or regulation
is required for the execution, delivery and performance by the
Company or the Guarantor of each of the Purchase Agreement,
the Indenture or the Registration Rights Agreement, the
issuance, authentication, sale and delivery of the Securities
and compliance by the Company and the Guarantor with the terms
thereof and the consummation of the transactions contemplated
by the Transaction Documents, except for such consents,
approvals, authorizations, filings, registrations or
qualifications (i) which have been obtained or made prior to
the Closing Date, (ii) as may be required under state
securities or Blue Sky laws in connection with the purchase
and resale of the Securities by the Initial Purchaser, and
(iii) as may be required under the Securities Act of 1933, as
amended (the "Act"), the Trust Indenture Act of 1939, as
amended, or state securities or Blue Sky laws in connection
with the Exchange Offer contemplated in the Offering
Memorandum.
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(xii) to the best knowledge of such counsel, and
other than as set forth or contemplated in the Offering
Memorandum there are no pending actions or suits or judicial,
arbitral, rule-making, administrative or other proceedings to
which the Company or any of its subsidiaries is a party or of
which any property or assets of the Company or any of its
subsidiaries is the subject which question the validity or
enforceability of any of the Transaction Documents or any
action taken or to be taken pursuant thereto; and to the best
knowledge of such counsel, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others.
(xiii) neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws;
(xiv) neither the Company nor any of its subsidiaries
is (A) an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder, without taking
account of any exemption under the Investment Company Act
arising out of the number of holders of the Company's
securities or (B) a "holding company" or a "subsidiary
company" of a holding company or an "affiliate" thereof within
the meaning of the Public Utility Holding Company Act of 1935,
as amended;
(xv) neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance,
execution or delivery of the Securities will violate
Regulation G, T, U or X of the Federal Reserve Board; and
(xvi) assuming the accuracy of the representations,
warranties and agreements of the Company and of the Initial
Purchaser contained in the Purchase Agreement, the issuance,
offer and sale of the Securities to the Initial Purchaser and
the initial resale and delivery of the Securities in the
manner contemplated by the Purchase Agreement and the Offering
Memorandum are exempt from the registration requirements of
the Securities Act, and it is not necessary to qualify the
Indenture under the Trust Indenture Act.
Such counsel shall also state that they themselves have not
checked the accuracy or completeness of, or otherwise verified, and are
not passing upon and assume no responsibility for the accuracy or
completeness of, the information contained or incorporated by reference
in the Offering Memorandum, except to the limited extent stated in
paragraphs (ii), (iii) and (x) above. In the course of such counsel's
review,
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such counsel has participated in conferences with certain officers and
other representatives of the Company, representatives of its
independent public accountants and representatives of the Initial
Purchaser, at which the contents of the Offering Memorandum were
discussed, and in the course of that review and discussion, but without
independent check or verification, no facts have come to such counsel's
attention that have caused such counsel to believe that any part of the
Offering Memorandum contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being
understood that such counsel shall express no opinion as to the
financial statements or other financial, accounting or statistical data
included in an of the documents mentioned in this paragraph.
In rendering such opinion, such counsel may rely as to matters
of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials which are
furnished to the Initial Purchaser and take such other qualifications
and limitations as are customary for opinions of this type.
References to the Offering Memorandum in this paragraph (e)
include any supplements thereto at the Closing Date.
(f) The Initial Purchaser shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Initial Purchaser, such opinion,
dated the Closing Date, with respect to such matters as the Initial
Purchaser may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for enabling them to
pass upon such matters.
(g) At the time of the execution of this Agreement, the
Initial Purchaser shall have received from each of Xxxxxx Xxxxxxxx LLP
and Deloitte & Touche LLP, respectively, a letter, addressed to the
Initial Purchaser and dated such date, in form and substance
satisfactory to the Initial Purchaser (i) confirming that they are
independent certified public accountants with respect to the Company
and its subsidiaries within the meaning of the Securities Act and the
applicable published rules and regulations thereunder and (ii) stating
the conclusions and findings of such firm with respect to the financial
statements and certain financial information contained in the
Preliminary Offering Memorandum or the Offering Memorandum.
References to the Offering Memorandum in this paragraph (g)
and in paragraph (h) below include any supplement thereto at the date
of the letter.
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(h) On the Closing Date, the Initial Purchaser shall have
received a letter (the "bring-down letter") from each of Xxxxxx
Xxxxxxxx LLP and Deloitte & Touche LLP, respectively, addressed to the
Initial Purchaser and dated the Closing Date (i) confirming, as of the
date of the bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which
specified financial information is given in the Offering Memorandum, as
of a date not more than three business days prior to the date of the
bring-down letter), the conclusions and findings of such firm with
respect to the financial information and other matters covered by its
letter delivered to the Initial Purchaser concurrently with the
execution of this Agreement pursuant to Section 5(g) above (the
"initial letters").
(i) The Company shall have furnished to the Initial Purchaser
a certificate, dated the Closing Date, of its Chairman of the Board,
its President or a Vice President and its chief financial officer
stating that (A) such officers have carefully examined the Offering
Memorandum (B) in their opinion, the Offering Memorandum, as of its
date, did not include any untrue statement of a material fact and did
not omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and since the
date of the Offering Memorandum, no event has occurred which should
have been set forth in a supplement or amendment to the Offering
Memorandum so that the Offering Memorandum (as so amended or
supplemented) would not include any untrue statement of a material fact
and would not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading and (C)
to the best of their knowledge after reasonable investigation, as of
the Closing Date, the representations and warranties of the Company and
the Guarantor in this Agreement are true and correct in all material
respects, each of the Company and the Guarantor has complied in all
material respects with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the
Closing Date, and subsequent to the date of the most recent financial
statements in the Offering Memorandum, there has been no material
adverse change in the financial position or results of operation of the
Company and its subsidiaries, or any change, or any development
including a prospective change, in or affecting the condition
(financial or otherwise), results of operations, business or prospects
of the Company and its subsidiaries taken as a whole, except as set
forth in the Offering Memorandum.
(j) (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 Memorandum any loss or interference
with its business from fire, explosion, flood or
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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 Memorandum or (ii)
since such date 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 the
business, general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth in the
Offering Memorandum, the effect of which, in any such case described in
clause (i) or (ii), is, in the judgment of the Initial Purchaser, so
material and adverse as to make it impracticable or inadvisable to
proceed with the sale or delivery of the Securities on the terms and in
the manner contemplated in the Offering Memorandum exclusive of any
supplement.
(k) The Initial Purchaser shall have received a counterpart of
the Registration Rights Agreement which shall have been executed and
delivered by a duly authorized officer of each of the Company and the
Guarantor.
(l) The Indenture and the Debenture Indenture shall have been
duly executed and delivered by the Company, the Guarantor, the Trustee
and the Debenture Trustee, and the Notes shall have been duly executed
and delivered by the Company and duly authenticated by the Trustee.
(m) The Certificate of Designations shall have been filed with
the appropriate authorities.
(n) The Securities shall have been approved by the NASD for
trading in the PORTAL Market.
(o) If any event shall have occurred that requires the Company
under Section 4(d) to prepare an amendment or supplement to the
Offering Memorandum, such amendment or supplement shall have been
prepared, the Initial Purchaser shall have been given a reasonable
opportunity to comment thereon, and copies thereof shall have been
delivered to the Initial Purchaser reasonably in advance of the Closing
Date.
(p) There shall not have occurred any invalidation of Rule
144A under the Securities Act by any court or any withdrawal or
proposed withdrawal of any rule or regulation under the Securities Act
or the Exchange Act by the Commission or any amendment or proposed
amendment thereof by the Commission which in the
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judgment of the Initial Purchaser would materially impair the ability
of the Initial Purchaser to purchase, hold or effect resales of the
Securities as contemplated hereby.
(q) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of the Closing Date,
prevent the issuance or sale of the Securities; and no injunction,
restraining order or order of any other nature by any federal or state
court of competent jurisdiction shall have been issued as of the
Closing Date which would prevent the issuance or sale of the
Securities.
(r) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Securities or any of the Company's other debt securities by any
"nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review (other than an
announcement with positive implications of a possible upgrading), its
rating of the Securities or any of the Company's other debt securities.
(s) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared
by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv)
there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Initial Purchaser,
impracticable or inadvisable to proceed with the sale or delivery of
the Securities on the terms and in the manner contemplated in the
Offering Memorandum.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Initial Purchaser.
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6. TERMINATION. The obligations of the Initial Purchaser
hereunder may be terminated by the Initial Purchaser, in its absolute
discretion, by notice given to and received by the Company prior to delivery of
and payment for the Securities if, prior to that time, any of the events
described in Sections 5(j), 5(r) or 5(s) shall have occurred.
7. DEFAULT OF INITIAL PURCHASER. (a) Obligations of Default of
Initial Purchaser. If, on the Closing Date, the Initial Purchaser defaults in
the performance of its obligations under this Agreement, the Initial Purchaser
may make arrangements for the purchase of such Securities by other persons
satisfactory to the Company and the Initial Purchaser. If other initial
purchasers satisfactory to the Company and the Initial Purchaser do not elect to
purchase the Securities which the Initial Purchaser agreed but failed to
purchase, this Agreement shall terminate without liability on the part of the
Company, except that the Company will be liable for the payment of expenses to
the extent set forth in Sections 8 and 11 except that the provisions of Section
9 shall not terminate and shall remain in effect.
(b) Liability of Defaulting Initial Purchaser; Closing Date.
Nothing contained herein shall relieve the Initial Purchaser of any liability it
may have for damages caused by its default. If other initial purchasers agree to
purchase the Securities of the Initial Purchaser, either the Initial Purchaser
or the Company may postpone the Closing Date for up to seven full business days
in order to effect any changes that in the opinion of counsel for the Company or
counsel for the Initial Purchaser may be necessary in the Preliminary Offering
Memorandum, the Offering Memorandum or in any other document or arrangement, and
the Company agrees to file promptly any amendment or supplement to the
Preliminary Offering Memorandum, the Offering Memorandum that effects any such
changes.
8. REIMBURSEMENT OF INITIAL PURCHASER'S EXPENSES. If (a) this
Agreement shall have been terminated pursuant to Section 6 or 7, (b) the Company
shall fail to tender the Securities for delivery to the Initial Purchaser for
any reason permitted under this Agreement or (c) the Initial Purchaser shall
decline to purchase the Securities for any reason permitted under this
Agreement, the Company shall reimburse the Initial Purchaser for the fees and
expenses of its counsel and for such other out-of-pocket expenses as shall have
been reasonably incurred by it in connection with this Agreement and the
proposed purchase and resale of the Securities, and upon demand the Company
shall pay the full amount thereof to the Initial Purchaser. If this Agreement is
terminated pursuant to Section 7 by reason of the default of the Initial
Purchaser, the Company shall not be obligated to reimburse the Initial Purchaser
on account of those expenses.
9. INDEMNIFICATION OF INITIAL PURCHASER AND THE COMPANY. (a)
Indemnification of Initial Purchaser. The Company and the Guarantor, jointly and
severally,
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shall indemnify and hold harmless the Initial Purchaser, its officers, directors
and employees and each person, if any, who controls any Initial Purchaser within
the meaning of the Securities Act (collectively referred to for the purposes of
this Section 9 as the Initial Purchaser) against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Initial Purchaser may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of or is
based upon (i) 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 or supplement thereto or (ii) the omission or alleged
omission to state in the Preliminary Offering Memorandum or the Offering
Memorandum or in any amendment or supplement thereto a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and shall reimburse
the Initial Purchaser for any legal or other expenses reasonably incurred by the
Initial Purchaser in connection with investigating or preparing to defend or
defending against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the foregoing indemnification agreement with respect to
the Preliminary Offering Memorandum shall not inure to the benefit of the
Initial Purchaser from whom the person asserting any such loss, claim, damage or
liability purchased Securities, if (i) a copy of the Offering Memorandum (as
then amended or supplemented) was required by law to be delivered to such person
at or prior to the written confirmation of the sale of Securities to such
person, (ii) a copy of the Offering Memorandum (as then amended or supplemented)
was not sent or given to such person by or on behalf of the Initial Purchaser
and (iii) the Offering Memorandum (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage or liability, unless,
in the case of (i), (ii) and (iii) occurring, such failure to deliver the
Offering Memorandum was a result of non-compliance by the Company of Section
4(d) hereunder; and further provided, however, that the Company and the
Guarantor shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
the Preliminary Offering Memorandum or the Offering Memorandum or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company and the Guarantor by the Initial Purchaser
specifically for use therein, which information the parties hereto agree is
limited to the Initial Purchaser's Information.
(b) Indemnification of Company, Directors and Officers. The
Initial Purchaser shall indemnify and hold harmless the Company and the
Guarantor, their respective officers, directors and employees and each person,
if any, who controls the Company or Guarantor within the meaning of the
Securities Act (collectively referred to for the purposes of this
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Section 9 as the Company), against any loss, claim, damage or liability, joint
or several, or any action in respect thereof, to which the Company or any
Guarantor may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of or is based upon (i)
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 or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by the Initial Purchaser specifically for use therein, and shall
reimburse the Company or such Guarantor for any legal or other expenses
reasonably incurred by the Company or such Guarantor in connection with
investigating or preparing to defend or defending against or appearing as third
party witness in connection with any such loss, claim, damage, liability or
action as such expenses are incurred; provided that the parties hereto hereby
agree that such written information provided by the Initial Purchaser consists
solely of the Initial Purchaser's Information.
(c) Actions; Notification. Promptly after receipt by an
indemnified party under this Section 9 of notice of any claim or the
commencement of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this Section 9,
notify the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 9 except to the extent it has been materially prejudiced by such
failure; and, provided, further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 9. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to
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it which are different from or additional to those available to the indemnifying
party and in the reasonable judgment of such counsel it is advisable for such
indemnified party to employ separate counsel or (iii) the indemnifying party has
failed to assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such indemnified party
notifies the indemnifying party in writing that it elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying party shall
not have the right to assume the defense of such action on behalf of such
indemnified party, it being understood, however, that the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for all such
indemnified parties, which firm shall be designated in writing by the Initial
Purchaser, if the indemnified parties under this Section 9 consist of the
Initial Purchaser or any of its respective officers, employees or controlling
persons, or by the Company, if the indemnified parties under this Section 9
consist of the Company or any of the Company's directors, officers, employees or
controlling persons. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 9(a) and 9(b), shall use all reasonable efforts
to cooperate with the indemnifying party in the defense of any such action or
claim. Subject to the provisions of Section 9(d) below, no indemnifying party
shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) Settlement Without Consent if Failure to Reimburse. If at
any time an indemnified party shall have requested that an indemnifying party
reimburse the indemnified party for fees and expenses of counsel in accordance
with the applicable provisions of this Agreement, such indemnifying party agrees
that it shall be liable for any settlement of the nature contemplated by this
Section 9 effected without its written consent if (i) such settlement is entered
into more than 60 days after receipt by such indemnifying party of the request
for reimbursement, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 45 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request and the applicable terms of
this Agreement prior to the date of such settlement.
(e) Contribution. If the indemnification provided for in this
Section 9 is unavailable or insufficient to hold harmless an indemnified party
under Section 9(a) or (b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss,
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claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
and the Guarantor on the one hand and the Initial Purchaser on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Guarantor on the one hand and the
Initial Purchaser on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company and the Guarantor on the one hand and the Initial
Purchaser on the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Securities purchased under this Agreement (before deducting expenses) received
by the Company and the Guarantor bear to the total underwriting discounts and
commissions received by the Initial Purchaser with respect to the Securities
purchased under this Agreement, in each case as set forth in the table on the
cover page of the Offering Memorandum. 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 and the Guarantor on the one hand
or the Initial Purchaser on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission; provided that the parties hereto agree that
the written information furnished to the Company by the Initial Purchaser for
use in the Preliminary Offering Memorandum, or the Offering Memorandum consists
solely of the Initial Purchaser's Information. The Company and the Initial
Purchaser agree that it would not be just and equitable if contributions
pursuant to this Section 9(e) were to be determined by pro rata allocation or by
any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 9(e) shall be deemed to include, for
purposes of this Section 9(e), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending or
preparing to defend any such action or claim. Notwithstanding the provisions of
this Section 9(e), the Initial Purchaser shall not be required to contribute any
amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public less
the amount of any damages which the Initial Purchaser has otherwise paid or
become liable to pay by reason of any 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
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The obligations of the Company, the Guarantor and the Initial
Purchaser in this Section 9 are in addition to any other liability which the
Company, the Guarantor or the Initial Purchaser, as the case may be, may
otherwise have.
10. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the Initial Purchaser, the
Company, the Guarantor and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Initial Purchaser, the Company, the
Guarantor and their respective successors and the controlling persons and
officers, directors and employees referred to in Section 9 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
11. EXPENSES. The Company and the Guarantor agree with the
Initial Purchaser to pay (a) the costs incident to the authorization, issuance,
sale, preparation and delivery of the Securities and any taxes payable in that
connection; (b) the costs incident to the preparation, printing and distribution
of the Preliminary Offering Memorandum the Offering Memorandum any amendments
and exhibits thereto the costs of printing, reproducing and distributing the
applicable Transaction Documents by mail, telex or other means of
communications; (c) all expenses and listing fees incurred in connection with
the application for quotation of the Securities on the PORTAL Market and the
approval of the Securities for book-entry transfer by the DTC; (d) any
applicable listing or other fees; (e) the fees and expenses of qualifying the
Securities under the securities laws of the several jurisdictions as provided in
Section 4(g) and of preparing, printing and distributing Blue Sky Memoranda and
legal investment surveys (including related fees and expenses of counsel to the
Initial Purchaser); (f) any fees charged by securities rating services for
rating the Securities; (g) all fees and expenses of the Trustee and any agent
thereof; and (h) all other costs and expenses incident to the performance of the
obligations of the Company under this Agreement (including, without limitation,
the fees and expenses of counsel to the Company and the fees and expenses of
Xxxxxx Xxxxxxxx LLP and Deloitte & Touche LLP); provided that, except as
otherwise provided in this Section 11 and in Section 8, the Initial Purchaser
shall pay its own costs and expenses, including the fees and expenses of its
counsel, any transfer taxes on the Securities which it may sell and the expenses
of advertising any offering of the Securities made by the Initial Purchaser.
12. SURVIVAL. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Company, the
Guarantor and the Initial Purchaser contained in this Agreement or made by or on
behalf on them, respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Securities and
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shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
of them or any person controlling any of them.
13. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Initial Purchaser, shall be delivered or sent by
mail, telex or facsimile transmission to Societe Generale Securities
Corporation, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Xxxxxxxxx: Xxxx Xxxxx, Telephone: (000) 000-0000, Telecopy: (212)
278-5460 with a copy to Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxx, Esq.,
Telecopy: (000) 000-0000;
(b) if to the Company or the Guarantor, shall be delivered or
sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Offering Memorandum, Attention: Xxxxxx
Xxxxxxx, Telephone: (000) 000-0000, Telecopy: (000) 000-0000 with a
copy to Debevoise & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx X. Xxxxxx, Esq., Telecopy: (000) 000-0000) and
to Greenwich Street Capital Partners, L.P., 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx X. Xxxxxx Xxxxxx,
Telecopy: (000) 000-0000;
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
14. DEFINITIONS OF CERTAIN TERMS. For purposes of this
Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading and (b) "subsidiary" has the meaning set
forth in Rule 405 of the Rules and Regulations.
15. INITIAL PURCHASER'S INFORMATION. The parties hereto
acknowledge and agree that, for all purposes of this Agreement, the Initial
Purchaser's Information consists solely of the following information in the
Offering Memorandum: (i) the last paragraph on the front cover page concerning
the terms of the offering by the Initial Purchaser; (ii) the legend on pages i
and ii of the Offering Memorandum concerning over-allotment and trading
activities by the Initial Purchaser; and (iii) the statements concerning the
Initial Purchaser contained in the third, fourth and fifth paragraphs under the
heading "Plan of Distribution."
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16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
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If the foregoing is in accordance with your understanding of
the agreement between the Company, the Guarantor and the Initial Purchaser,
kindly indicate your acceptance in the space provided for that purpose below.
Very truly yours,
DAY INTERNATIONAL GROUP, INC.
By
Name:
Title:
DAY INTERNATIONAL, INC.
By
Name:
Title:
Accepted:
SOCIETE GENERALE SECURITIES CORPORATION
By
Name:
Title:
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SCHEDULE 1
Principal Amount
of Notes to be Number of Shares
Initial Purchaser Purchased of Preferred Stock
----------------- --------- ------------------
Societe Generale Securities Corporation....... $115,000,000 35,000
-------------------------------------------------------------------------------------------
Total......................................... $115,000,000 35,000
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Annex A
[Form of Registration Rights Agreement]
2
