1
EXHIBIT 10.04
$29,000,000
CARAUSTAR INDUSTRIES, INC.
7.25% SENIOR NOTES DUE 2010
AND
$285,000,000
CARAUSTAR INDUSTRIES, INC.
9.875% SENIOR SUBORDINATED NOTES DUE 2011
PURCHASE AGREEMENT
------------------
March 22, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANC ALEX. BROWN INC.
SUNTRUST EQUITABLE SECURITIES CORPORATION
c/o Credit Suisse First Boston Corporation,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇.▇. 10010-3629
Dear Sirs:
1. Introductory. Caraustar Industries, Inc., a North Carolina
corporation (the "COMPANY"), proposes, subject to the terms and conditions
stated herein, to issue and sell to the several initial purchasers named in
Schedule A hereto (the "PURCHASERS") U.S.$29,000,000 principal amount of its
7.25% Senior Notes Due 2010 (the "SENIOR NOTES") and U.S.$285,000,000 principal
amount of its 9.875% Senior Subordinated Notes Due 2011 (the "SENIOR
SUBORDINATED NOTES," collectively with the Senior Notes, the "OFFERED
SECURITIES") to be issued under an indenture, dated as of March 29, 2001 (the
"INDENTURE"), between the Company and The Bank of New York, as trustee (the
"TRUSTEE"). The Offered Securities will be fully and unconditionally guaranteed
by all existing domestic subsidiaries of the Company, excluding those listed on
Schedule C hereto (the "SUBSIDIARY GUARANTORS"). Each Subsidiary Guarantor is
listed on Schedule C hereto. The United States Securities Act of 1933 is herein
referred to as the "SECURITIES ACT."
The Company hereby agrees with the Purchasers as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Purchasers that:
(a) A preliminary offering circular and an offering
circular relating to the Offered Securities to be offered by the
Purchasers have been prepared by the Company. Such preliminary offering
circular (the "PRELIMINARY OFFERING CIRCULAR") and offering circular
(the "OFFERING CIRCULAR"), as supplemented as of the date of this
Agreement, together with the documents listed in Schedule B hereto and
any other document approved by the Company for use in connection with
the contemplated resale of the Offered Securities, are hereinafter
collectively referred to as the "OFFERING DOCUMENT." On the date of
this Agreement, the Offering Document does not include any untrue
1
2
statement of a material fact or omit to state any 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. The preceding sentence does not apply to
statements in or omissions from the Offering Document based upon
written information furnished to the Company by any Purchaser through
Credit Suisse First Boston Corporation, as agent for the Purchasers
("CSFBC") specifically for use therein, it being understood and agreed
that the only such information is that described as such in Section
7(b) hereof. Except as disclosed in the Offering Document, on the date
of this Agreement, the Company's Annual Report on Form 10-K most
recently filed with the Securities and Exchange Commission (the
"COMMISSION") and all subsequent reports (collectively, the "EXCHANGE
ACT REPORTS") which have been filed by the Company with the Commission
or sent to shareholders pursuant to the Securities Exchange Act of 1934
(the "EXCHANGE ACT") do not include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. Such documents, when they were filed with
the Commission, conformed in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder.
(b) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
North Carolina, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Offering
Document; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification.
(c) Each subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing under the
laws of the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Offering Document and the Exchange Act Reports; and
each subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification; all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and the capital
stock of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects. Each
entity in which the Company has an equity interest but which is not
included in the Company's consolidated financial statements as set
forth in the Offering Circular (each a "Joint Venture") has been duly
incorporated or organized, as applicable, is validly existing as a
corporation, partnership or limited liability company, as applicable,
in good standing under the laws of the jurisdiction of its
incorporation or organization, has corporate or other power and
authority to own, lease and operate its properties and to conduct its
business as described in the Offering Document and the Exchange Act
Reports and is duly qualified, if applicable, as a foreign corporation,
partnership or limited liability company to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business. Except as otherwise stated in the Offering
Document and the Exchange Act Reports, all of the issued and
outstanding capital stock of each Joint Venture that is a corporation
has been duly authorized and is validly issued, fully paid and
non-assessable. Except as otherwise stated in the Offering Document and
the Exchange Act Reports, all of the issued and outstanding partnership
interests and membership interests of each Joint Venture that is a
partnership or a limited liability company have been duly authorized
and validly issued. The capital stock, partnership interest or
membership interest, as applicable, of the Joint Ventures owned by the
Company as set forth in the Offering Circular is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. None of
the outstanding shares of capital stock of any Joint Venture that is a
corporation was issued in violation of the preemptive or similar rights
of any securityholder of such subsidiary.
2
3
(d) The Indenture has been duly authorized by the Company
and each of the Subsidiary Guarantors; the Offered Securities have been
duly authorized by the Company; and when the Offered Securities are
delivered and paid for pursuant to this Agreement on the Closing Date
(as defined below), the Indenture will have been duly executed and
delivered by the Company and each of the Subsidiary Guarantors, such
Offered Securities will have been duly executed, authenticated, issued
and delivered by the Company and will conform in all material respects
to the description thereof contained in the Offering Document and the
Indenture and such Offered Securities will constitute valid and legally
binding obligations of the Company and each of the Subsidiary
Guarantors, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(e) Except as disclosed in the Offering Document, there
are no contracts, agreements or understandings between the Company and
any person that would give rise to a valid claim against the Company or
any Purchaser for a brokerage commission, finder's fee or other like
payment as a result of the Company's performance of its obligations
under this Agreement, the Indenture or the Registration Rights
Agreement.
(f) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement
or the Registration Rights Agreement dated the date hereof, between the
Company and the Purchasers (the "REGISTRATION RIGHTS AGREEMENT"), in
connection with the issuance and sale of the Offered Securities by the
Company, except for the order of the Commission declaring the Exchange
Offer Registration Statement or the Shelf Registration Statement (each
as defined in the Registration Rights Agreement) effective.
(g) The execution, delivery and performance of the
Indenture, this Agreement and the Registration Rights Agreement, and
the issuance and sale of the Offered Securities, and compliance with
the terms and provisions thereof, will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or Joint Venture of the
Company or any of their properties, or any agreement or instrument to
which the Company or any such subsidiary or Joint Venture is a party or
by which the Company or any such subsidiary or Joint Venture is bound
or to which any of the properties of the Company or any such subsidiary
or Joint Venture is subject, or the charter, by-laws or such other
organizational documents of the Company or any such subsidiary or Joint
Venture, and the Company has full power and authority to authorize,
issue and sell the Offered Securities as contemplated by this
Agreement.
(h) This Agreement and the Registration Rights Agreement
have been duly authorized, executed and delivered by the Company.
(i) Except as disclosed in the Offering Document, the
Company and its subsidiaries and Joint Ventures have good and
marketable title to all real properties and all other properties and
assets owned by them, in each case free from liens, encumbrances and
defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them; and except
as disclosed in the Offering Document, the Company and its subsidiaries
and Joint Ventures hold any leased real or personal property under
valid and enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by them.
(j) The Company and its subsidiaries and Joint Ventures
possess adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to conduct the
business now operated by them and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries and Joint Ventures, which would
result in any material
3
4
adverse change, or any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company or its
subsidiaries and its interests in its Joint Ventures taken as a whole
("MATERIAL ADVERSE EFFECT").
(k) No labor dispute with the employees of the Company or
any subsidiary or Joint Venture exists or, to the knowledge of the
Company, is imminent that might have a Material Adverse Effect.
(l) The Company and its subsidiaries and Joint Ventures
own, possess or can acquire on reasonable terms, adequate trademarks,
trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the
business now operated by them, or presently employed by them, and have
not received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights that,
if determined adversely to the Company or any of its subsidiaries or
Joint Ventures, would individually or in the aggregate have a Material
Adverse Effect.
(m) Except as disclosed in the Offering Document, neither
the Company nor any of its subsidiaries or Joint Ventures is in
violation of any statute, any rule, regulation, decision or order of
any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a claim.
(n) Except as disclosed in the Offering Document, there
are no pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries and Joint Ventures or any of their
respective properties that, if determined adversely to the Company or
any of its subsidiaries or Joint Ventures, would individually or in the
aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under the Indenture, this Agreement or the Registration Rights
Agreement, or which are otherwise material in the context of the sale
of the Offered Securities; and no such actions, suits or proceedings
are threatened or, to the Company's knowledge, contemplated.
(o) The historical audited financial statements,
historical unaudited financial statements and the unaudited pro forma
financial data included in the Offering Document present fairly the
financial position of the Company and its consolidated subsidiaries as
of the dates shown and their results of operations and cash flows for
the periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis.
(p) Except as disclosed in the Offering Document, since
the date of the latest audited historical financial statements included
in the Offering Document there has been no material adverse change, nor
any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries and Joint
Ventures taken as a whole, and, except as disclosed in or contemplated
by the Offering Document, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital stock.
(q) Neither the Company nor any of its subsidiaries or
Joint Ventures is in default under any agreement or instrument to which
the Company or any such subsidiary or Joint Venture is a party or by
which the Company or any such subsidiary or Joint Venture is bound or
to which any of
4
5
the properties of the Company or any such subsidiary or Joint Venture
is subject, which would, individually or in the aggregate, result in a
Material Adverse Effect.
(r) Neither the Company nor any of the Subsidiary
Guarantors is 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 United States Investment Company Act of 1940
(the "INVESTMENT COMPANY ACT"); and neither the Company nor any of the
Subsidiary Guarantors is and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds
thereof as described in the Offering Document, will not be an
"investment company" as defined in the Investment Company Act.
(s) No securities of the same class (within the meaning
of Rule 144A(d)(3) under the Securities Act) as the Offered Securities
are listed on any national securities exchange registered under Section
6 of the United States Securities Exchange Act of 1934 ("EXCHANGE ACT")
or quoted in a U.S. automated inter-dealer quotation system.
(t) The offer and sale of the Offered Securities in the
manner contemplated by this Agreement will be exempt from the
registration requirements of the Securities Act by reason of Section
4(2) thereof, Regulation D thereunder and Regulation S thereunder; and
it is not necessary to qualify an indenture in respect of the Offered
Securities under the United States Trust Indenture Act of 1939, as
amended (the "TRUST INDENTURE ACT").
(u) Neither the Company, nor any of its affiliates, nor
any person acting on its or their behalf (i) has, within the six-month
period prior to the date hereof, offered or sold in the United States
or to any U.S. person (as such term is defined in Regulation S under
the Securities Act) the Offered Securities, or any security of the same
class or series as the Offered Securities, or (ii) has offered or will
offer or sell the Offered Securities (A) in the United States by means
of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act or (B) with respect to
any such securities sold in reliance on Rule 903 of Regulation S under
the Securities Act ("REGULATION S"), by means of any directed selling
efforts within the meaning of Rule 902(c) of Regulation S. The Company,
its affiliates and any person acting on its or their behalf have
complied and will comply with the offering restrictions requirement of
Regulation S. The Company has not entered and will not enter into any
contractual arrangement with respect to the distribution of the Offered
Securities except for this Agreement.
(v) The Company is subject to Section 13 or 15(d) of the
Exchange Act.
3. Purchase, Sale and Delivery of Offered Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to sell
to the Purchasers, and the Purchasers agree, severally and not jointly, to
purchase from the Company, the Senior Notes at a purchase price of 84.6775% of
the principal amount thereof plus accrued interest, if any, from March 29, 2001
to the Closing Date (as hereinafter defined) and the Senior Subordinated Notes
at a purchase price of 93.8215% of the principal amount thereof plus accrued
interest, if any, from March 29, 2001 to the Closing Date, in the respective
principal amounts of Offered Securities set forth opposite the names of the
several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the
Offered Securities to be offered and sold by each Purchaser in reliance on
Regulation S (the "REGULATION S SECURITIES") in the form of one or more
permanent global securities in registered form without interest coupons (the
"REGULATION S GLOBAL SECURITIES") which will be deposited with the Trustee as
custodian for The Depositary Trust Company ("DTC") for the respective accounts
of the Euroclear System ("EUROCLEAR") and Clearstream Banking, S.A.
("CLEARSTREAM"), each a participant in DTC, and the permanent global securities
will be registered in the name of Cede & Co., as nominee for DTC. The Company
will deliver against payment of the purchase price the Offered Securities to be
purchased by each Purchaser hereunder and to be offered and sold by each
Purchaser in reliance on Rule 144A under the Securities Act (the "144A
SECURITIES") in the form of two or
5
6
more permanent global securities in definitive form without interest coupons
(the "RESTRICTED GLOBAL SECURITIES") deposited with the Trustee as custodian for
DTC and registered in the name of Cede & Co., as nominee for DTC. Each of the
Regulation S Global Securities and the Restricted Global Securities shall be
assigned separate CUSIP numbers. The Restricted Global Securities shall include
the legend regarding restrictions on transfer set forth under "Transfer
Restrictions" in the Offering Document. Until the termination of the restricted
period (as defined in Regulation S) with respect to the offering of the Offered
Securities, interests in the Regulation S Global Securities may only be held by
a DTC participant such as Euroclear or Clearstream. Interests in any permanent
global securities will be held only in book-entry form through
Euroclear,Clearstream or DTC, as the case may be, except in the limited
circumstances described in the Offering Document.
Payment for the Regulation S Securities and the 144A Securities shall
be made by the Purchasers in Federal (same day) funds by wire transfer to an
account at a bank acceptable to CSFBC at the office of ▇▇▇▇▇▇ & Bird LLP at
10:00 A.M. (New York time) on March 29, 2001 or at such other time not later
than seven full business days thereafter as CSFBC and the Company determine,
such time being herein referred to as the "Closing Date," against delivery to
the Trustee as custodian for DTC of (i) the Regulation S Global Securities
representing all of the Regulation S Securities for the respective accounts of
DTC participants Euroclear and Clearstream and (ii) the Restricted Global
Securities representing all of the 144A Securities. The Regulation S Global
Securities and the Restricted Global Securities will be made available for
checking at the above office of CSFBC at least 24 hours prior to the Closing
Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to
the Company that it is an "accredited investor" within the meaning of
Regulation D under the Securities Act.
(b) Each Purchaser severally acknowledges that the
Offered Securities have not been registered under the Securities Act
and may not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except in accordance with
Regulation S or pursuant to an exemption from the registration
requirements of the Securities Act. Each Purchaser severally represents
and agrees that it has offered and sold the Offered Securities, and
will offer and sell the Offered Securities (i) as part of its
distribution at any time and (ii) otherwise until 40 days after the
later of the commencement of the offering and the Closing Date, only in
accordance with Rule 903 or Rule 144A under the Securities Act.
Accordingly, such Purchaser nor its affiliates, nor any persons acting
on its or their behalf, have engaged or will engage in any directed
selling efforts with respect to the Offered Securities, and such
Purchaser, its affiliates and all persons acting on its or their behalf
have complied and will comply with the offering restrictions
requirement of Regulation S. Each Purchaser severally agrees that, at
or prior to confirmation of sale of the Offered Securities, other than
a sale pursuant to Rule 144A, such Purchaser will have sent to each
distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases the Offered Securities from it during
the restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the date of the commencement of the offering and
the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meanings given to them by
Regulation S."
Terms used in this subsection (b) have the meanings given to
them by Regulation S.
(c) Each Purchaser severally agrees that it and each of
its affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
6
7
except for any such arrangements with the other Purchasers or
affiliates of the other Purchasers or with the prior written consent of
the Company.
(d) Each Purchaser severally agrees that it and each of
its affiliates has not and will not offer or sell the Offered
Securities in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act, including, but not limited to (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or
radio, or (ii) any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising. Each Purchaser
severally agrees, with respect to resales made in reliance on Rule 144A
of any of the Offered Securities, to deliver either with the
confirmation of such resale or otherwise prior to settlement of such
resale a notice to the effect that the resale of such Offered
Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
5. Certain Agreements of the Company. The Company agrees with the
several Purchasers that:
(a) The Company will advise CSFBC promptly of any
proposal to amend or supplement the Offering Document and will not
effect such amendment or supplementation without CSFBC's consent, which
consent will not be unreasonably withheld. If, at any time prior to the
completion of the resale of the Offered Securities by the Purchasers,
any event occurs as a result of which the Offering Document as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, the Company promptly will notify CSFBC of
such event and promptly will prepare, at its own expense, an amendment
or supplement which will correct such statement or omission. Neither
CSFBC's consent to, nor the Purchasers' delivery to offerees or
investors of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(b) The Company will furnish to CSFBC copies of any
preliminary offering circular, the Offering Document and all amendments
and supplements to such documents, in each case as soon as available
and in such quantities as CSFBC reasonably requests, and the Company
will furnish to CSFBC on the date hereof three copies of the Offering
Document, one of which will include the independent accountants'
reports therein manually signed by such independent accountants. At any
time when the Company is not subject to Section 13 or 15(d) of the
Exchange Act, the Company will promptly furnish or cause to be
furnished to CSFBC (and, upon request, to each of the other Purchasers)
and, upon request of holders and prospective purchasers of the Offered
Securities, to such holders and purchasers, copies of the information
required to be delivered to holders and prospective purchasers of the
Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto) in order to permit compliance with
Rule 144A in connection with resales by such holders of the Offered
Securities. The Company will pay the expenses of printing and
distributing to the Purchasers all such documents.
(c) The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their eligibility
for investment under the laws of such jurisdictions in the United
States and Canada as CSFBC designates and will continue such
qualifications in effect so long as required for the resale of the
Offered Securities by the Purchasers, provided that the Company will
not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such state.
(d) During the period of five years hereafter, the
Company will furnish to CSFBC and, upon request, to each of the other
Purchasers, as soon as practicable after the end of each fiscal year, a
copy of its annual report to shareholders for such year; and the
Company will furnish to CSFBC and, upon request, to each of the other
Purchasers (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission
under the Exchange Act
7
8
or mailed to shareholders, and (ii) from time to time, such other
information concerning the Company as CSFBC may reasonably request.
(e) During the period of two years after the Closing
Date, the Company will, upon request, furnish to CSFBC, each of the
other Purchasers and any holder of Offered Securities a copy of the
restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing
Date, the Company will not, and will not permit any of its affiliates
(as defined in Rule 144 under the Securities Act) to, resell any of the
Offered Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing
Date, neither the Company nor any Subsidiary Guarantor will become 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.
(h) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, the Indenture and
the Registration Rights Agreement, including (i) the fees and expenses
of the Trustee and its professional advisers; (ii) all expenses in
connection with the execution, issue, authentication, packaging and
initial delivery of the Offered Securities and, as applicable, the
Exchange Securities (as defined in the Registration Rights Agreement),
the preparation and printing of this Agreement, the Registration Rights
Agreement, the Offered Securities, the Indenture, the Offering Document
and amendments and supplements thereto, and any other document relating
to the issuance, offer, sale and delivery of the Offered Securities and
as applicable, the Exchange Securities; (iii) the cost of qualifying
the Offered Securities for trading in The Portal(SM) Market ("PORTAL")
and any expenses incidental thereto; (iv) any expenses (including fees
and disbursements of counsel) incurred in connection with qualification
of the Offered Securities or the Exchange Securities for sale under the
laws of such jurisdictions in the United States and Canada as CSFBC
designates and the printing of memoranda relating thereto; (v) for any
fees charged by investment rating agencies for the rating of the
Offered Securities or the Exchange Securities; and (vi) for expenses
incurred in distributing preliminary offering circulars and the
Offering Document (including any amendments and supplements thereto) to
the Purchasers. The Company will also pay or reimburse the Purchasers
(to the extent incurred by them) for all travel expenses of the
Company's officers and employees and any other expenses of the Company
in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities from the Purchasers; it being
understood that the only expenses of counsel to the Purchasers to be
paid by the Company shall be those pursuant to the foregoing clause
(iv).
(i) In connection with the offering, until CSFBC shall
have notified the Company and the other Purchasers of the completion of
the resale of the Offered Securities, neither the Company nor any of
its affiliates has or will, either alone or with one or more other
persons, bid for or purchase for any account in which it or any of its
affiliates has a beneficial interest any Offered Securities or attempt
to induce any person to purchase any Offered Securities; and neither it
nor any of its affiliates will make bids or purchases for the purpose
of creating actual, or apparent, active trading in, or of raising the
price of, the Offered Securities.
(j) In connection with the sale of the Offered Securities
to the Purchasers, the Company will file the notice on Form D required
by Rule 503 under the Securities Act within the time required by such
Rule and otherwise in compliance with such Rule. A copy of such notice
shall be furnished promptly to CSFBC.
(k) From the date hereof to the Closing Date, without the
prior written consent of CSFBC, neither the Company nor any of its
subsidiaries will agree to amend, revise or otherwise alter the
operating agreement, partnership agreement, management agreement or
other agreement or agreements governing the business or operations,
financial or otherwise, of the Joint Ventures, if
8
9
such amendment, revision or alteration would adversely affect the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries, individually or in the
aggregate, or adversely affect the provisions of the Offered
Securities.
6. Conditions of the Obligations of the Purchasers. The
obligations of the several Purchasers to purchase and pay for the Offered
Securities will be subject to the accuracy of the representations and warranties
on the part of the Company herein, to the accuracy of the statements of officers
of the Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The Purchasers shall have received a letter, dated
the date of this Agreement, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in agreed form
confirming that they are independent public accountants within the
meaning of the Securities Act and the applicable published rules and
regulations thereunder ("RULES AND REGULATIONS") and to the effect
that:
(i) in their opinion the financial statements
examined by them and included in the Offering Document and in
the Exchange Act Reports comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the related published Rules and
Regulations;
(ii) at the date of the latest available balance
sheet read by such accountants, or at a subsequent specified
date not more than three business days prior to the date of
this Agreement, there was any change in the capital stock or
any increase in short-term indebtedness or long-term debt of
the Company and its consolidated subsidiaries or, at the date
of the latest available balance sheet read by such
accountants, there was any decrease in consolidated net
current assets or net assets, as compared with amounts shown
on the latest balance sheet included in the Offering Document;
or
(iii) for the period from the closing date of the
latest income statement included in the Offering Document to
the closing date of the latest available income statement read
by such accountants there were any decreases, as compared with
previous year, in consolidated net sales, operating income,
equity in income of unconsolidated affiliates, income before
income taxes and minority interest, net income or in the ratio
of earnings to fixed charges;
except in all cases set forth in clauses (ii) and (iii) above
for changes, increases or decreases which the Offering
Document disclose have occurred or may occur or which are
described in such letter; and
(iv) they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and other
financial information contained in the Offering Document and
the Exchange Act Reports (in each case to the extent that such
dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company
and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of CSFBC,
be likely to prejudice materially the success of the proposed issue,
sale or distribution of the Offered Securities, whether in the primary
market or in respect of dealings in the secondary market, or (ii) (A)
any change, or any development or event involving a prospective change,
in the condition (financial or other), business,
9
10
properties or results of operations of the Company or its subsidiaries
which, in the judgment of a majority in interest of the Purchasers
including CSFBC, is material and adverse to the Company and its
subsidiaries when taken as a whole, and makes it impractical or
inadvisable to proceed with completion of the offering or the sale of
and payment for the Offered Securities; (B) any downgrading in the
rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act), or any public announcement that
any such organization has under surveillance or review its rating of
any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (C) any suspension or limitation
of trading in securities generally on the New York Stock Exchange, or
any general setting of minimum prices for trading on such exchange, or
any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (D) any banking moratorium
declared by U.S. Federal or New York authorities; or (E) any outbreak
or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of
a majority in interest of the Purchasers including CSFBC, the effect of
any such outbreak, escalation, declaration, calamity or emergency makes
it impractical or inadvisable to proceed with completion of the
offering or sale of and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated
the Closing Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A. counsel for the
Company, that:
(i) The Company has been duly incorporated and
is an existing corporation in good standing under the laws of
the State of North Carolina, with corporate power and
authority to own its properties and conduct its business as
described in the Offering Document and the Exchange Act
Reports; and the Company is duly qualified to do business as a
foreign corporation in good standing in such jurisdictions
specified therein;
(ii) Each Subsidiary Guarantor has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Offering Document and the Exchange Act
Reports and is duly qualified as a foreign corporation to
transact business and is in good standing in such
jurisdictions as specified therein. Except as otherwise stated
in the Offering Document and the Exchange Act Reports, all of
the issued and outstanding capital stock of each subsidiary
has been duly authorized and is validly issued, fully paid and
non-assessable and, to the best of our knowledge, is owned by
the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. To the best of our knowledge, none of the
outstanding shares of capital stock of any subsidiary was
issued in violation of the preemptive or similar rights of any
securityholder of such subsidiary.
(iii) Each Joint Venture of the Company has been
duly incorporated or organized, as applicable, is validly
existing as a corporation, partnership or limited liability
company, as applicable, in good standing under the laws of the
jurisdiction of its incorporation or organization, has
corporate or other power and authority to own, lease and
operate its properties and to conduct its business as
described in the Offering Document and the Exchange Act
Reports and is duly qualified, if applicable, as a foreign
corporation, partnership or limited liability company to
transact business and is in good standing in such
jurisdictions as specified therein. Except as otherwise stated
in the Offering Document and the Exchange Act Reports, all of
the issued and outstanding capital stock of each Joint Venture
that is a corporation has been duly authorized and is validly
issued, fully paid and non-assessable. Except as otherwise
stated in the Offering Document and the Exchange Act Reports,
all of the issued and outstanding partnership or membership
interests of each Joint Venture that is a partnership or
limited liability
10
11
company has been duly authorized. To the best of our
knowledge, such stock, partnership or membership interest is
owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. To the best of our knowledge,
none of the outstanding shares of capital stock of any Joint
Venture that is a corporation was issued in violation of the
preemptive or similar rights of any securityholder of such
subsidiary.
(iv) The Indenture has been duly authorized,
executed and delivered by the Company and each of the
Subsidiary Guarantors; the Offered Securities have been duly
authorized, executed, authenticated, issued and delivered by
the Company and conform in all material respects to the
description thereof contained in the Offering Document; and
the Indenture and the Offered Securities constitute valid and
legally binding obligations of the Company and each of the
Subsidiary Guarantors enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
(v) Neither the Company nor any Subsidiary
Guarantor is and, after giving effect to the offering and sale
of the Offered Securities and the application of the proceeds
thereof as described in the Offering Document, will not be an
"investment company" as defined in the Investment Company Act.
(vi) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any
court is required for the consummation of the transactions
contemplated by this Agreement and the Registration Rights
Agreement in connection with the issuance or sale of the
Offered Securities by the Company, except such as may be
required under state securities laws, except for the order of
the Commission declaring the Exchange Offer Registration
Statement or the Shelf Registration Statement effective and
except for the filing of a notice of sale on Form D as
required by Rule 503 of Regulation D of the Securities Act;
(vii) Except as described in the Offering
Circular, there are no pending actions, suits or proceedings
against or affecting the Company, any of its subsidiaries or
Joint Ventures or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries
or Joint Ventures, would individually or in the aggregate have
a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations
under the Indenture, this Agreement or the Registration Rights
Agreement, or which are otherwise material in the context of
the sale of the Offered Securities; and no such actions, suits
or proceedings are, to such counsel's knowledge, threatened.
(viii) The execution, delivery and performance of
the Indenture, this Agreement and the Registration Rights
Agreement and the issuance and sale of the Offered Securities
and compliance with the terms and provisions thereof will not:
(x) to the knowledge of such counsel, result in a breach or
violation of any of the terms and provisions of, or constitute
a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary or Joint
Venture of the Company or any of their properties, (y) result
in a breach or violation of the material agreements and
instruments, each such agreement and instrument specifically
set forth in such opinion, to which the Company or any such
subsidiary or Joint Venture is a party or by which the Company
or any such subsidiary or Joint Venture is bound or to which
any of the properties of the Company or any such subsidiary or
Joint Venture is subject, or (z) result in a breach or
violation of the charter, by-laws or other organizational
documents of the Company or any such subsidiary or Joint
Venture; and the Company has full power and
11
12
authority to authorize, issue and sell the Offered Securities
as contemplated by this Agreement;
(ix) To the knowledge of such counsel, neither
the Company nor any of its subsidiaries or Joint Ventures is
in default under any material agreement or instrument, each
such agreement and instrument specifically set forth in such
opinion, to which the Company or any such subsidiary or Joint
Venture is a party or by which the Company or any such
subsidiary or Joint Venture is bound or to which any of the
properties of the Company or any such subsidiary or Joint
Venture is subject, which would, individually or in the
aggregate, result in a Material Adverse Effect.
(x) Such counsel have no reason to believe that
the Offering Document, or any amendment or supplement thereto,
or any Exchange Act Report as of the date hereof and as of the
Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact necessary to make
the statements therein not misleading; the descriptions in the
Offering Document and the Exchange Act Reports of statutes,
legal and governmental proceedings and contracts and other
documents are accurate in all material respects and fairly
present the information required to be shown; it being
understood that such counsel need express no opinion as to the
financial statements or other financial data contained in
Offering Document and the Exchange Act Reports;
(xi) This Agreement and the Registration Rights
Agreement have each been duly authorized, executed and
delivered by the Company;
(xii) It is not necessary in connection with (i)
the offer, sale and delivery of the Offered Securities by the
Company to the several Purchasers pursuant to this Agreement
or (ii) the resales of the Offered Securities by the several
Purchasers in the manner contemplated by this Agreement, to
register the Offered Securities under the Securities Act or to
qualify an indenture in respect thereof under the Trust
Indenture Act.
(xiii) Except as provided in the Registration
Rights Agreement, no holder of any security of the Company or
any of its subsidiaries or Joint Ventures, has or will have
any right to require the registration under the Securities Act
of such security by virtue of the consummation of the
transactions contemplated by this Agreement.
(d) The Purchasers shall have received from ▇▇▇▇▇▇ & Bird
LLP, counsel for the Purchasers, such opinions, dated the Closing Date,
with respect to the enforceability of the Indenture, the due
authorization of this Agreement and the Registration Rights Agreement
and other related matters as CSFBC may require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters. In rendering such
opinion, ▇▇▇▇▇▇ & Bird LLP may rely as to the incorporation of the
Company and all other matters governed by North Carolina law upon the
opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A. referred to above.
(e) The Purchasers shall have received a certificate,
dated the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, and that, subsequent to the date of the most recent financial
statements in the Offering Document there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole except as set forth in or contemplated by the Offering
Document or as described in such certificate.
12
13
(f) The Purchasers shall have received a letter, dated
the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP which meets the requirements
of subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three days
prior to the Closing Date for the purposes of this subsection.
(g) The Company shall have obtained guarantees from the
Subsidiary Guarantors of the outstanding indebtedness under the
Company's 7.375% Senior Notes Due 2009.
The Company will furnish the Purchasers with such conformed copies of
such opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Purchaser, its partners, directors and officers
and each person, if any, who controls such Purchaser within the meaning of
Section 15 of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such Purchaser may become subject, under
the Securities Act or the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Offering Document, or any amendment or supplement thereto,
or any related preliminary offering circular or the Exchange Act Reports, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, including any
losses, claims, damages or liabilities arising out of or based upon the
Company's failure to perform its obligations under Section 5(a) of this
Agreement, and will reimburse each Purchaser for any legal or other expenses
reasonably incurred by such Purchaser in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable to the
Purchasers or any person controlling the Purchasers with respect to any untrue
statement or omission made in the Preliminary Offering Circular that is
corrected in the Offering Circular if the person asserting any such loss, claim,
damage or liability purchased Offered Securities from the Purchasers but was not
sent or given a copy of the Offering Circular by the Purchasers at or prior to
the written confirmation of the sale of such Offered Securities to such person
unless such failure to deliver the Offering Circular was a result of the
Company's failure to comply with Section 5 of this Agreement; provided, further,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Purchaser through CSFBC specifically
for use therein, it being understood and agreed that the only such information
consists of the information described as such in subsection (b) below.
(b) Each Purchaser will severally and not jointly
indemnify and hold harmless the Company, its directors and officers and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or liabilities to which the
Company may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such 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 such
Purchaser through CSFBC specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Purchaser consists of (i) the following information
in the Offering Document furnished on behalf of each Purchaser: under the
caption "Plan of Distribution" paragraphs four and eight; and (ii) the
13
14
following information in the Offering Document furnished on behalf of Deutsche
Banc ▇▇▇▇. ▇▇▇▇▇ Inc., Banc of America Securities LLC and SunTrust Equitable
Securities Corporation: under the caption "Plan of Distribution" paragraphs ten
and eleven; provided, however, that the Purchasers shall not be liable for any
losses, claims, damages or liabilities arising out of or based upon the
Company's failure to perform its obligations under Section 5 of this Agreement.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified party and such
indemnified party shall have the right to select separate counsel to defend such
action on behalf of such indemnified party. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action and does not include a statement as to or an admission of
fault, culpability or failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Purchasers on the other from the offering of
the Offered 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 on the one hand and the Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Purchasers on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total discounts and commissions received by the
Purchasers from the Company under this Agreement. 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 or the Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Purchaser shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered
Securities purchased by it were resold exceeds the amount of any damages which
such Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement
14
15
or omission or alleged omission. The Purchasers' obligations in this subsection
(d) to contribute are several in proportion to their respective purchase
obligations and not joint.
(e) The obligations of the Company under this Section
shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Purchaser within the meaning of the Securities Act or the Exchange
Act; and the obligations of the Purchasers under this Section shall be in
addition to any liability which the respective Purchasers may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act.
8. Default of Purchasers. If any Purchaser or Purchasers default
in their obligations to purchase Offered Securities hereunder and the aggregate
principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, CSFBC may make arrangements satisfactory
to the Company for the purchase of such Offered Securities by other persons,
including any of the Purchasers, but if no such arrangements are made by the
Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to CSFBC and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Purchaser or the
Company, except as provided in Section 9. As used in this Agreement, the term
"Purchaser" includes any person substituted for a Purchaser under this Section.
Nothing herein will relieve a defaulting Purchaser from liability for its
default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Purchasers set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Purchaser, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Offered Securities by the Purchasers is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Company and the Purchasers
pursuant to Section 7 shall remain in effect. If the purchase of the Offered
Securities by the Purchasers is not consummated for any reason other than solely
because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (C), (D) or (E) of Section 6(b)(ii),
the Company will reimburse the Purchasers for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and,
if sent to the Purchasers will be mailed, delivered or telegraphed and confirmed
to the Purchasers, c/o Credit Suisse First Boston Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. 10010-3629, Attention: Investment Banking Department, or,
if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief
Financial Officer; provided, however, that any notice to a Purchaser pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company as if such
holders were parties thereto.
15
16
12. 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 Agreement.
13. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to principles of conflicts of laws. The Company hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
16
17
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
CARAUSTAR INDUSTRIES, INC.
By /s/ ▇. ▇▇▇ ▇▇▇▇▇▇, III
-------------------------
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
BANC OF AMERICA SECURITIES LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
DEUTSCHE BANC ALEX. BROWN INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
SUNTRUST EQUITABLE SECURITIES CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
17
18
SCHEDULE A
7.25% SENIOR NOTES DUE 2010
PRINCIPAL AMOUNT OF
OFFERED SECURITIES
PURCHASER
---------
CREDIT SUISSE FIRST BOSTON CORPORATION..................... $18,412,680
BANC OF AMERICA SECURITIES LLC............................. 4,603,170
DEUTSCHE BANC ▇▇▇▇. ▇▇▇▇▇ INC.............................. 4,603,170
SUNTRUST EQUITABLE SECURITIES CORPORATION.................. 1,380,980
-----------
Total............................ $29,000,000
===========
9.875% SENIOR SUBORDINATED NOTES DUE 2011
PRINCIPAL AMOUNT OF
OFFERED SECURITIES
PURCHASER
---------
CREDIT SUISSE FIRST BOSTON CORPORATION..................... $180,952,200
BANC OF AMERICA SECURITIES LLC............................. 45,238,050
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.............................. 45,238,050
SUNTRUST EQUITABLE SECURITIES CORPORATION.................. 13,571,700
------------
Total............................ $285,000,000
============
18
19
SCHEDULE B
ADDITIONAL DOCUMENTS CONSTITUTING
PART OF THE OFFERING DOCUMENT
NONE.
19
20
SCHEDULE C
SUBSIDIARY GUARANTORS
AUSTELL BOXBOARD CORPORATION
AUSTELL HOLDING COMPANY, LLC
BUFFALO PAPERBOARD, INC.
CAMDEN PAPERBOARD CORPORATION
CARAUSTAR CUSTOM PACKAGING GROUP, INC.
CARAUSTAR CUSTOM PACKAGING GROUP (MARYLAND), INC.
CARAUSTAR INDUSTRIAL & CONSUMER PRODUCTS GROUP, INC.
CARAUSTAR INDUSTRIES, INC.
CARAUSTAR PAPERBOARD CORPORATION
CARAUSTAR RECOVERED FIBER GROUP, INC.
CAROLINA COMPONENT CONCEPTS, INC.
CAROLINA CONVERTING INCORPORATED
CAROLINA PAPER BOARD CORPORATION
CAROTELL PAPER BOARD CORPORATION
CHATTANOOGA PAPERBOARD CORPORATION
CHICAGO PAPERBOARD CORPORATION
CINCINNATI PAPERBOARD, INC.
COLUMBUS RECYCLING, INC.
FEDERAL TRANSPORT, INC.
GYPSUM MGC, INC.
HALIFAX PAPER BOARD COMPANY, INC.
▇▇▇▇▇▇▇▇▇ GYPSUM COMPANY
▇▇▇▇▇▇▇▇ GYPSUM COMPANY, LLC
NEW AUSTELL BOX BOARD COMPANY
PAPER RECYCLING, INC.
PBL INC.
READING PAPERBOARD CORPORATION
RICHMOND PAPERBOARD CORPORATION
▇▇▇▇▇▇▇ PAPERBOARD, INC.
SWEETWATER PAPER BOARD COMPANY, INC
EXCLUDED DOMESTIC SUBSIDIARIES
PARAGON PLASTICS, INC.
20
