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EXHIBIT 1.1
Execution Copy
Juno Lighting, Inc.
Juno Manufacturing, Inc.
Indy Lighting, Inc.
Advanced Fiberoptic Technologies, Inc.
$ 125,000,000
11 7/8% Senior Subordinated Notes due 2009
Purchase Agreement
dated June 24, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
Credit Suisse First Boston Corporation
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TABLE OF CONTENTS
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Section 1. Representations and Warranties........................................................................2
(a) No Registration Required.............................................................................2
(b) No Integration of Offerings or General Solicitation..................................................2
(c) Eligibility for Resale under Rule 144A...............................................................3
(d) The Offering Memorandum..............................................................................3
(e) Incorporated Documents...............................................................................3
(f) The Purchase Agreement...............................................................................3
(g) The Registration Rights Agreement and DTC Agreement..................................................3
(h) Authorization of the Securities and the Exchange Securities..........................................4
(i) Authorization of the Indenture.......................................................................4
(j) Description of the Securities and the Indenture......................................................4
(k) No Material Adverse Change...........................................................................4
(l) Independent Accountants..............................................................................4
(m) Preparation of the Financial Statements..............................................................5
(n) Incorporation and Good Standing of the Company and its Subsidiaries..................................5
(o) Capitalization and Other Capital Stock Matters.......................................................5
(p) Stock Exchange Listing...............................................................................6
(q) Non-Contravention of Existing Instruments; No Further Authorizations
or Approvals Required.............................................................................6
(r) No Material Actions or Proceedings...................................................................6
(s) Intellectual Property Rights.........................................................................6
(t) All Necessary Permits, etc...........................................................................7
(u) Title to Properties..................................................................................7
(v) Tax Law Compliance...................................................................................7
(w) Company Not an "Investment Company"..................................................................7
(x) Insurance............................................................................................7
(y) No Price Stabilization or Manipulation...............................................................8
(z) Solvency.............................................................................................8
(aa) No Unlawful Contributions or Other Payments.........................................................8
(bb) Company's Accounting System.........................................................................8
(cc) Compliance with Environmental Laws..................................................................8
(dd) ERISA Compliance....................................................................................9
(ee) No Default in Senior Indebtedness...................................................................9
(ff) New Credit Facility.................................................................................9
(gg) Compliance with Regulation S........................................................................9
(hh) Year 2000 Compliance................................................................................9
Section 2. Purchase, Sale and Delivery of the Securities........................................................10
(a) The Securities......................................................................................10
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(b) The Closing Date....................................................................................10
(c) Delivery of the Securities..........................................................................10
(d) Delivery of Offering Memorandum to the Initial Purchasers...........................................10
(e) Initial Purchasers as Qualified Institutional Buyers................................................10
Section 3. Additional Covenants.................................................................................12
(a) Initial Purchasers' Review of Proposed Amendments and Supplements...................................12
(b) Amendments and Supplements to the Offering Memorandum and Other Securities Act Matters..............12
(c) Copies of the Offering Memorandum...................................................................12
(d) Blue Sky Compliance.................................................................................13
(e) Use of Proceeds.....................................................................................13
(f) The Depositary......................................................................................13
(g) Additional Issuer Information.......................................................................13
(h) Future Reports to the Initial Purchasers............................................................13
(i) No Integration......................................................................................13
(j) Legended Securities.................................................................................14
(k) PORTAL..............................................................................................14
Section 4. Payment of Expenses..................................................................................14
Section 5. Conditions of the Obligations of the Initial Purchasers..............................................14
(a) Accountants' Comfort Letter.........................................................................14
(b) No Material Adverse Change or Ratings Agency Change.................................................14
(c) Opinion of Counsel for the Company..................................................................15
(d) Opinion of Counsel for the Investor.................................................................15
(e) Opinion of Counsel for the Initial Purchasers.......................................................15
(f) Officers' Certificate...............................................................................15
(g) Bring-down Comfort Letter...........................................................................15
(h) PORTAL Listing......................................................................................15
(i) Registration Rights Agreement.......................................................................15
(j) Concurrent Transactions.............................................................................15
(k) Additional Documents................................................................................16
Section 6. Reimbursement of Initial Purchasers' Expenses........................................................16
Section 7. Offer, Sale and Resale Procedures....................................................................16
Section 8. Indemnification......................................................................................17
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(a) Indemnification of the Initial Purchasers...........................................................17
(b) Indemnification of the Company, its Directors and Officers..........................................18
(c) Notifications and Other Indemnification Procedures..................................................18
(d) Settlements.........................................................................................19
Section 9. Contribution.........................................................................................19
Section 10. Termination of this Agreement.......................................................................20
Section 11. Representations and Indemnities to Survive Delivery.................................................21
Section 12. Notices.............................................................................................21
Section 13. Successors..........................................................................................21
Section 14. Partial Unenforceability............................................................................22
Section 15. Governing Law Provisions............................................................................22
(a) Consent to Jurisdiction.............................................................................22
Section 16. Default of One or More of the Several Initial Purchasers............................................22
Section 17. General Provisions..................................................................................22
Schedule A List of Initial Purchasers
Exhibit A Subsidiaries
Exhibit B Opinion of Counsel for the Company
Exhibit C Opinion of Counsel for the Investor
Annex I Resale Restrictions
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PURCHASE AGREEMENT
June 24, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
As Initial Purchasers
c/o BANC OF AMERICA SECURITIES LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Introductory. Juno Lighting, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the several Initial Purchasers named
in Schedule A (the "Initial Purchasers"), acting severally and not jointly, the
respective amounts set forth in such Schedule A of an $125,000,000 aggregate
principal amount of the Company's 11 7/8% Senior Subordinated Notes due 2009
(the "Notes"). Banc of America Securities LLC and Credit Suisse First Boston
Corporation have agreed to act as the Initial Purchasers in connection with the
offering and sale of the Notes.
The Notes will be issued pursuant to an indenture (the
"Indenture"), between the Company and Firstar Bank of Minnesota, N.A., as
trustee (the "Trustee"). Notes issued in book-entry form will be issued in the
name of Cede & Co., as nominee of The Depository Trust Company (the
"Depositary") pursuant to a DTC Agreement, to be dated as of the Closing Date
(as defined in Section 2 hereof) (the "DTC Agreement"), among the Company, the
Trustee and the Depositary.
The holders of the Notes will be entitled to the benefits of a
registration rights agreement, to be dated as of the Closing Date (as defined in
Section 2 hereof) (the "Registration Rights Agreement"), among the Company and
the Initial Purchasers, pursuant to which the Company will agree to file, within
60 days of the Closing Date, a registration statement with the Securities and
Exchange Commission (the "Commission") registering the Exchange Securities (as
defined below) under the Securities Act.
The payment of principal of and premium and interest on the
Notes and the Exchange Notes (as defined in Section 1(g) hereof) will be fully
and unconditionally guaranteed on a senior unsecured basis, jointly and
severally, by (i) Juno Manufacturing, Inc., an Illinois corporation, (ii) Indy
Lighting, Inc., an Indiana corporation, (iii) Advanced Fiberoptic Technologies,
Inc., a Florida corporation, and (iv) any subsidiary of the Company formed or
acquired after the Closing Date that executes an additional guarantee in
accordance with the terms of the Indenture and their respective successors and
assigns (collectively, the "Guarantors"), pursuant to their guarantees (the
"Guarantees"). The Notes and the Guarantees attached thereto are herein
collectively referred to as the "Securities," and the Exchange Notes and the
Guarantees attached thereto are herein collectively referred to as the "Exchange
Securities."
The Company will be recapitalized (the "Merger") pursuant to
an Agreement and Plan of Recapitalization and Merger dated as of March 26, 1999
(the "Merger Agreement") by and among the Company, Fremont Investors I, LLC (the
"Investor") and Jupiter Acquisition Corp. The proceeds from the sale of the
Securities will be used to finance a portion of the consideration payable to
stockholders of the Company in the Merger.
The Company understands that the Initial Purchasers propose to
make an offering of the Securities on the terms and in the manner set forth
herein and in the Offering Memorandum (as defined below) and agrees that
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the Initial Purchasers may resell ("Exempt Resales"), subject to the conditions
set forth herein, all or a portion of the Securities to purchasers (the
"Subsequent Purchasers") at any time after the date of this Agreement. The
Securities are to be offered and sold to or through the Initial Purchasers
without being registered with the Commission under the Securities Act of 1933
(as amended, the "Securities Act," which term, as used herein, includes the
rules and regulations of the Commission promulgated thereunder), in reliance
upon exemptions therefrom. The terms of the Securities and the Indenture will
require that investors that acquire Securities expressly agree that Securities
may only be resold or otherwise transferred, after the date hereof, if such
Securities are registered for sale under the Securities Act or if an exemption
from the registration requirements of the Securities Act is available (including
the exemptions afforded by Rule 144A ("Rule 144A") or Regulation S ("Regulation
S") thereunder).
The Company has prepared and delivered to each Initial
Purchaser copies of a Preliminary Offering Memorandum, dated June 4, 1999 (the
"Preliminary Offering Memorandum"), and has prepared and will deliver to each
Initial Purchaser, copies of the Offering Memorandum, dated June 24, 1999,
describing the terms of the Securities, each for use by such Initial Purchaser
in connection with its solicitation of offers to purchase the Securities. As
used herein, the "Offering Memorandum" shall mean, with respect to any date or
time referred to in this Agreement, the Company's Offering Memorandum, dated
June 24, 1999, including amendments or supplements thereto, any exhibits thereto
and the Incorporated Documents (as defined in Section 1(e) hereof), in the most
recent form that has been prepared and delivered by the Company to the Initial
Purchasers in connection with their solicitation of offers to purchase
Securities. Further, any reference to the Preliminary Offering Memorandum or the
Offering Memorandum shall be deemed to refer to and include any Additional
Issuer Information (as defined in Section 3(g) hereof) furnished by the Company
prior to the completion of the distribution of the Securities.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Offering Memorandum (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which are incorporated by reference in the Offering Memorandum; and
all references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (as amended, the "Exchange Act," which term,
as used herein, includes the rules and regulations of the Commission promulgated
thereunder) which is incorporated or deemed to be incorporated by reference in
the Offering Memorandum.
The Company hereby confirms its agreements with the Initial
Purchasers as follows:
Section 1. Representations and Warranties. The Company and
each of the Guarantors hereby jointly and severally represent, warrant and
covenant to each Initial Purchaser as follows:
(a) No Registration Required. Subject to compliance by the
Initial Purchasers with the representations and warranties set forth in
Section 2(e) hereof and with the procedures set forth in Section 7
hereof, it is not necessary in connection with the offer, sale and
delivery of the Securities to the Initial Purchasers and to each
Subsequent Purchaser in the manner contemplated by this Agreement and
the Offering Memorandum to register the Securities under the Securities
Act or, until such time as the Exchange Securities are issued pursuant
to an effective registration statement, to qualify the Indenture under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act,"
which term, as used herein, includes the rules and regulations of the
Commission promulgated thereunder).
(b) No Integration of Offerings or General Solicitation. The
Company has not, directly or indirectly, solicited any offer to buy or
offered to sell, and will not, directly or indirectly, solicit any
offer to buy or offer to sell, in the United States or to any United
States citizen or resident, any security which is or would be
integrated with the sale of the Securities in a manner that would
require the Securities to be registered under the Securities Act. None
of the Company, its affiliates (as such term is defined in Rule 501(b)
under the Securities Act) (each, an "Affiliate"), or any person acting
on its or any of their behalf (other than the Initial Purchasers, as to
whom the Company makes no representation or warranty) has engaged or
will engage, 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. With
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respect to those Securities sold in reliance upon Regulation S, (i)
none of the Company, its Affiliates or any person acting on its or
their behalf (other than the Initial Purchasers, as to whom the Company
makes no representation or warranty) has engaged or will engage in any
directed selling efforts within the meaning of Regulation S and (ii)
each of the Company and its Affiliates and any person acting on its or
their behalf (other than the Initial Purchasers, as to whom the Company
makes no representation or warranty) has complied and will comply with
the offering restrictions set forth in Regulation S.
(c) Eligibility for Resale under Rule 144A. The Securities are
eligible for resale pursuant to Rule 144A and will not be, at the
Closing Date, of the same class as securities listed on a national
securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated interdealer quotation system.
(d) The Offering Memorandum. The Offering Memorandum does not,
and at the Closing Date 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 under
which they were made, not misleading; provided that this
representation, warranty and agreement shall not apply to statements in
or omissions from the Offering Memorandum made in reliance upon and in
conformity with information furnished to the Company in writing by any
Initial Purchaser through Banc of America Securities LLC expressly for
use in the Offering Memorandum. Each of the Preliminary Offering
Memorandum and the Offering Memorandum, as of its date, contains all
the information specified in, and meeting the requirements of, Rule
144A(d)(4). The Company has not distributed and will not distribute,
prior to the later of the Closing Date and the completion of the
Initial Purchasers' distribution of the Securities, any offering
material in connection with the offering and sale of the Securities
other than a preliminary Offering Memorandum or the Offering
Memorandum.
(e) Incorporated Documents. The Offering Memorandum as
delivered from time to time shall incorporate by reference the most
recent Annual Report of the Company on Form 10-K filed with the
Commission and each Quarterly Report of the Company on Form 10-Q and
each Current Report of the Company on Form 8-K filed with the
Commission since the filing of the end of the fiscal year to which such
Annual Report relates. The documents incorporated or deemed to be
incorporated by reference in the Offering Memorandum at the time they
were or hereafter are filed with the Commission (collectively, the
"Incorporated Documents") complied and will comply in all material
respects with the requirements of the Exchange Act.
(f) The Purchase Agreement. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its terms,
except as rights to indemnification hereunder may be limited by
applicable law and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or
by general equitable principles and except as rights to indemnification
under the Registration Rights Agreement may be limited by applicable
law.
(g) The Registration Rights Agreement and DTC Agreement. At
the Closing Date, each of the Registration Rights Agreement and the DTC
Agreement will be duly authorized, executed and delivered by, and will
be a valid and binding agreement of, the Company, enforceable in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of
creditors or by general equitable principles and except as rights to
indemnification under the Registration Rights Agreement may be limited
by applicable law. Pursuant to the Registration Rights Agreement, the
Company will agree to file with the Commission, under the circumstances
set forth therein, (i) a registration statement under the Securities
Act relating to another series of debt securities of the Company with
terms substantially identical to the Notes (the "Exchange Notes") to be
offered in exchange for the Notes (the "Exchange Offer") and (ii) to
the extent required by the Registration Rights Agreement, a shelf
registration statement pursuant to Rule 415 of the Securities Act
relating to the resale by certain holders of the Notes, and in each
case, to use
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its best efforts to cause such registration statements to be declared
effective.
(h) Authorization of the Securities and the Exchange
Securities. The Notes to be purchased by the Initial Purchasers from
the Company are in the form contemplated by the Indenture, have been
duly authorized for issuance and sale pursuant to this Agreement and
the Indenture and, at the Closing Date, will have been duly executed by
the Company and, when authenticated in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor,
will constitute valid and binding agreements of the Company,
enforceable in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights
and remedies of creditors or by general equitable principles and will
be entitled to the benefits of the Indenture. The Exchange Notes have
been duly and validly authorized for issuance by the Company, and when
issued and authenticated in accordance with the terms of the Indenture,
the Registration Rights Agreement and the Exchange Offer, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws relating to or affecting
enforcement of the rights and remedies of creditors or by general
principles of equity and will be entitled to the benefits of the
Indenture. The Guarantees of the Notes and the Exchange Notes are in
the respective forms contemplated by the Indenture, have been duly
authorized for issuance and sale pursuant to this Agreement and the
Indenture and, at the Closing Date, will have been duly executed by
each of the Guarantors and, when the Notes have been authenticated in
the manner provided for in the Indenture and delivered against payment
of the purchase price therefor, will constitute valid and binding
agreements of the Guarantors, enforceable in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights and remedies of creditors or by general
equitable principles and will be entitled to the benefits of the
Indenture.
(i) Authorization of the Indenture. The Indenture has been
duly authorized by the Company and, at the Closing Date, will have been
duly executed and delivered by the Company and will constitute a valid
and binding agreement of the Company, enforceable against the Company
in accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of
creditors or by general equitable principles.
(j) Description of the Securities and the Indenture. The
Notes, the Exchange Notes, the Guarantees of the Notes and the Exchange
Notes and the Indenture will conform in all material respects to the
respective statements relating thereto contained in the Offering
Memorandum.
(k) No Material Adverse Change. Except as otherwise disclosed
in the Offering Memorandum, subsequent to the respective dates as of
which information is given in the Offering Memorandum: (i) there has
been no material adverse change, or any development that could
reasonably be expected to result in a material adverse change, in the
condition, financial or otherwise, or in the earnings, business,
operations or prospects, whether or not arising from transactions in
the ordinary course of business, of the Company and its subsidiaries,
considered as one entity (any such change is called a "Material Adverse
Change"); (ii) the Company and its subsidiaries, considered as one
entity, have not incurred any material liability or obligation,
indirect, direct or contingent, not in the ordinary course of business
nor entered into any material transaction or agreement not in the
ordinary course of business; and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company or,
except for dividends paid to the Company or other subsidiaries, any of
its subsidiaries on any class of capital stock or repurchase or
redemption by the Company or any of its subsidiaries of any class of
capital stock.
(l) Independent Accountants. PricewaterhouseCoopers LLP, which
has expressed their opinion with respect to the financial statements
(which term as used in this Agreement includes the related notes
thereto) and supporting schedules filed with the Commission included in
the Offering Memorandum
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are independent public or certified public accountants with respect to
the Company and its subsidiaries within the meaning of Regulation S-X
under the Securities Act and the Exchange Act.
(m) Preparation of the Financial Statements. The financial
statements, together with the related schedules and notes, included or
incorporated by reference in the Offering Memorandum present fairly in
all material respects the consolidated financial position of the
Company and its subsidiaries as of and at the dates indicated and the
results of their operations and cash flows for the periods specified in
conformity with generally accepted accounting principles as applied in
the United States applied on a consistent basis throughout the periods
involved, except as may be expressly stated in the related notes
thereto. The financial data set forth in the Offering Memorandum under
the captions "Offering Memorandum Summary--Summary Consolidated
Financial Data" and "Selected Consolidated Financial Data" fairly
present in all material respects the information set forth therein on a
basis consistent with that of the audited and unaudited financial
statements contained in the Offering Memorandum. The pro forma
condensed financial statements of the Company and its subsidiaries and
the related notes thereto included under the caption "Offering
Memorandum Summary--Summary Consolidated Financial Data," "Pro Forma
Consolidated Financial Data" and elsewhere in the Offering Memorandum
present fairly the information contained therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly presented on the
basis described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate
to give effect to the transactions and circumstances referred to
therein.
(n) Incorporation and Good Standing of the Company and its
Subsidiaries. Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and has
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Offering Memorandum
and, in the case of each of the Company, Juno Manufacturing, Inc., Indy
Lighting, Inc. and Advanced Fiberoptic Technologies, Inc., to enter
into and perform its respective obligations under each of this
Agreement, the Registration Rights Agreement, the DTC Agreement, the
Securities, the Exchange Securities, the Indenture and the Merger
Agreement. Each of the Company and each subsidiary is duly qualified as
a foreign corporation 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 for such jurisdictions where the failure to so qualify
or to be in good standing would not, individually or in the aggregate,
result in a Material Adverse Change. All of the issued and outstanding
capital stock of each subsidiary has been duly authorized and validly
issued, is fully paid and nonassessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim. The Company
does not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in
Exhibit A hereto.
(o) Capitalization and Other Capital Stock Matters. At May 31,
1999, on a consolidated basis, after giving pro forma effect to the
issuance and sale of the Securities pursuant hereto, the Company would
have an authorized and outstanding capitalization as set forth in the
Offering Memorandum under the caption "Capitalization" (other than for
subsequent issuances of capital stock, if any, pursuant to employee
benefit plans described in the Offering Memorandum or upon exercise of
outstanding options described in the Offering Memorandum). The Common
Stock conforms in all material respects to the description thereof set
forth or incorporated by reference in the Offering Memorandum. All of
the outstanding shares of Common Stock have been duly authorized and
validly issued, are fully paid and nonassessable and have been issued
in compliance with federal and state securities laws. None of the
outstanding shares of Common Stock were issued in violation of any
preemptive rights, rights of first refusal or other similar rights to
subscribe for or purchase securities of the Company. There are no
authorized or outstanding options, warrants, preemptive rights, rights
of first refusal or other rights to purchase, or equity or debt
securities convertible into or exchangeable or exercisable for, any
capital stock of the Company or any of its subsidiaries other than
those accurately described in the Offering Memorandum. The description
of the Company's stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted thereunder, set
forth or incorporated by reference in
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the Offering Memorandum accurately and fairly describes such plans,
arrangements, options and rights.
(p) Stock Exchange Listing. The Common Stock is registered
pursuant to Section 12(g) of the Exchange Act and is listed on the
Nasdaq National Market, and the Company has taken no action designed
to, or likely to have the effect of, terminating the registration of
the Common Stock under the Exchange Act or delisting the Common Stock
from the Nasdaq National Market, nor has the Company received any
notification that the Commission or the National Association of
Securities Dealers, Inc. (the "NASD") is contemplating terminating such
registration or listing.
(q) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor any of
its subsidiaries is in violation of its charter or by-laws or is in
default (or, with the giving of notice or lapse of time, would be in
default) ("Default") under any indenture, mortgage, loan or credit
agreement, note, contract, franchise, lease or other instrument to
which the Company or any of its subsidiaries is a party or by which it
or any of them may be bound, or to which any of the property or assets
of the Company or any of its subsidiaries is subject (each, an
"Existing Instrument"), except for such Defaults as would not,
individually or in the aggregate, result in a Material Adverse Change.
The Company's execution, delivery and performance of this Agreement,
the Registration Rights Agreement, the DTC Agreement and the Indenture,
and the issuance and delivery of the Securities or the Exchange
Securities, and consummation of the transactions contemplated hereby
and thereby and by the Offering Memorandum (i) have been duly
authorized by all necessary corporate action and will not result in any
violation of the provisions of the charter or by-laws of the Company or
any subsidiary, (ii) will not conflict with or constitute a breach of,
or Default or a Debt Repayment Triggering Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, or require the consent of any other party to,
any Existing Instrument, except for such conflicts, breaches, Defaults,
liens, charges or encumbrances as would not, individually or in the
aggregate, result in a Material Adverse Change and (iii) will not
result in any violation of any law, administrative regulation or
administrative or court decree applicable to the Company or any
subsidiary. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or
regulatory authority or agency, is required for the Company's
execution, delivery and performance of this Agreement, the Registration
Rights Agreement, the DTC Agreement or the Indenture, or the issuance
and delivery of the Securities or the Exchange Securities, or
consummation of the transactions contemplated hereby and thereby and by
the Offering Memorandum, except such as have been obtained or made by
the Company and are in full force and effect under the Securities Act,
applicable state securities or blue sky laws and except such as may be
required by federal and state securities laws with respect to the
Company's obligations under the Registration Rights Agreement. As used
herein, a "Debt Repayment Triggering Event" means any event or
condition which gives, or with the giving of notice or lapse of time
would give, the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any of its subsidiaries.
(r) No Material Actions or Proceedings. Except as otherwise
disclosed in the Offering Memorandum, there are no legal or
governmental actions, suits or proceedings pending or, to the best of
the Company's knowledge, threatened against or affecting the Company or
any of its subsidiaries, which has as the subject thereof any property
owned or leased by, the Company or any of its subsidiaries, where in
any such case (A) there is a reasonable possibility that such action,
suit or proceeding might be determined adversely to the Company or such
subsidiary and (B) any such action, suit or proceeding, if so
determined adversely, would reasonably be expected to result in a
Material Adverse Change or adversely affect the consummation of the
transactions contemplated by this Agreement. Except as disclosed in the
Offering Memorandum, no material labor dispute with the employees of
the Company or any of its subsidiaries, or with the employees of any
principal supplier of the Company, exists or, to the Company's
knowledge, is threatened or imminent.
(s) Intellectual Property Rights. Except as disclosed in the
Offering Memorandum, the
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Company and its subsidiaries own or possess sufficient trademarks,
trade names, patent rights, copyrights, licenses, approvals, trade
secrets and other similar rights (collectively, "Intellectual Property
Rights") reasonably necessary to conduct their businesses as now
conducted and the expected expiration of any of such Intellectual
Property Rights would not result in a Material Adverse Change. Except
as disclosed in the Offering Memorandum, neither the Company nor any of
its subsidiaries has received any notice of infringement or conflict
with asserted Intellectual Property Rights of others, which
infringement or conflict, if the subject of an unfavorable decision,
would reasonably be expected to result in a Material Adverse Change.
(t) All Necessary Permits, etc. Except as disclosed in the
Offering Memorandum, the Company and each subsidiary possess such valid
and current certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or other
bodies necessary to conduct their respective businesses as currently
conducted, and neither the Company nor any subsidiary has received any
notice of proceedings relating to the revocation or modification of, or
non-compliance with, any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could result in a Material Adverse Change.
(u) Title to Properties. The Company and each of its
subsidiaries has good and marketable title to all the properties and
assets reflected as owned in the financial statements referred to in
Section 1(m) above (or elsewhere in the Offering Memorandum), in each
case free and clear of any security interests, mortgages, liens,
encumbrances, equities, claims and other defects, except such as do not
materially and adversely affect the value of such property and do not
materially interfere with the use made or proposed to be made of such
property by the Company or such subsidiary or would not reasonably be
expected to result in a Material Adverse Change. The real property,
improvements, equipment and personal property held under lease by the
Company or any subsidiary are held under valid and enforceable leases,
with such exceptions as do not materially interfere with the use made
or proposed to be made of such real property, improvements, equipment
or personal property by the Company or such subsidiary.
(v) Tax Law Compliance. The Company and its subsidiaries have
filed all necessary federal, state and foreign income and franchise tax
returns or have duly requested extensions thereof and have paid all
taxes required to be paid by any of them and, if due and payable, any
related or similar assessment, fine or penalty levied against any of
them except as may be being contested in good faith and by appropriate
proceedings. The Company has made adequate charges, accruals and
reserves in the applicable financial statements referred to in Section
1(m) above in respect of all federal, state and foreign income and
franchise taxes for all periods as to which the tax liability of the
Company or any of its subsidiaries has not been finally determined.
(w) Company Not an "Investment Company". The Company has been
advised of the rules and requirements under the Investment Company Act
of 1940, as amended (the "Investment Company Act"). The Company is not,
and after receipt of payment for the Securities will not be, an
"investment company" within the meaning of Investment Company Act and
will conduct its business in a manner so that it will not become
subject to the Investment Company Act.
(x) Insurance. Each of the Company and its subsidiaries is
insured by recognized, financially sound institutions with policies in
such amounts and with such deductibles and covering such risks as are
generally deemed adequate and customary by the Company for its
respective businesses including, but not limited to, policies covering
real and personal property owned or leased by the Company and its
subsidiaries against theft, damage, destruction and acts of vandalism.
The Company has no reason to believe that it or any subsidiary will not
be able (i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its business
as now conducted and at a cost that would not reasonably be expected to
result in a Material Adverse Change. Neither of the Company nor any
subsidiary has been denied any insurance coverage which it has sought
or for which it has applied.
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(y) No Price Stabilization or Manipulation. The Company has
not taken and will not take, directly or indirectly, any action
designed to or that might be reasonably expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(z) Solvency. The Company is, and immediately after the
Closing Date will be, Solvent. As used herein, the term "Solvent"
means, with respect to the Company on a particular date, that on such
date (i) the fair market value of the assets of the Company is greater
than the total amount of liabilities (including contingent liabilities)
of the Company, (ii) the present fair salable value of the assets of
the Company is greater than the amount that will be required to pay the
probable liabilities of the Company on its debts as they become
absolute and matured, (iii) the Company is able to realize upon its
assets and pay its debts and other liabilities, including contingent
obligations, as they mature and (iv) the Company does not have
unreasonably small capital.
(aa) No Unlawful Contributions or Other Payments. Neither the
Company nor any of its subsidiaries nor, to the best of the Company's
knowledge, any employee or agent of the Company or any subsidiary, has
made any contribution or other payment to any official of, or candidate
for, any federal, state or foreign office in violation of any law or of
the character necessary to be disclosed in the Offering Memorandum in
order to make the statements therein not misleading.
(bb) Company's Accounting System. The Company maintains a
system of accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles as applied in
the United States and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(cc) Compliance with Environmental Laws. Except disclosed in
the Offering Memorandum or as would not, individually or in the
aggregate, result in a Material Adverse Change, to their respective
knowledge (i) neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign law or regulation
relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including
without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
and petroleum products (collectively, "Materials of Environmental
Concern"), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Materials of Environmental Concern (collectively, "Environmental
Laws"), which violation includes, but is not limited to, noncompliance
with any permits or other governmental authorizations required for the
operation of the business of the Company or its subsidiaries under
applicable Environmental Laws, or noncompliance with the terms and
conditions thereof, nor has the Company or any of its subsidiaries
received any written communication from a governmental authority that
alleges that the Company or any of its subsidiaries is in violation of
any Environmental Law; (ii) there is no claim, action or cause of
action filed with a court or governmental authority, no investigation
with respect to which the Company has received written notice, and no
written notice by any person or entity alleging potential liability for
investigatory costs, cleanup costs, governmental responses costs,
natural resources damages, property damages, personal injuries,
attorneys' fees or penalties arising out of, based on or resulting from
the presence, or release into the environment, of any Material of
Environmental Concern at any location owned, leased or operated by the
Company or any of its subsidiaries, now or in the past (collectively,
"Environmental Claims"), pending or, to the Company's knowledge,
threatened against the Company or any of its subsidiaries or any person
or entity whose liability for any Environmental Claim the Company or
any of its subsidiaries has retained or assumed either contractually or
by operation of law; and (iii) to the Company's knowledge, there are no
past or present actions, activities, circumstances, conditions, events
or incidents, including, without
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limitation, the release, emission, discharge, presence or disposal of
any Material of Environmental Concern, that reasonably could result in
a violation of any Environmental Law by the Company or form the basis
of a potential Environmental Claim against the Company or any of its
subsidiaries or against any person or entity whose liability for any
Environmental Claim the Company or any of its subsidiaries has retained
or assumed either contractually or by operation of law.
(dd) ERISA Compliance. The Company and its subsidiaries and
any "employee benefit plan" (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (collectively, "ERISA"))
established or maintained by the Company, its subsidiaries or their
"ERISA Affiliates" (as defined below) are in compliance in all material
respects with ERISA. "ERISA Affiliate" means, with respect to the
Company or a subsidiary, any member of any group of organizations
described in Sections 414(b), (c), (m) or (o) of the Internal Revenue
Code of 1986, as amended, and the regulations and published
interpretations thereunder (the "Code") of which the Company or such
subsidiary is a member. No "reportable event" (as defined under ERISA)
has occurred or is reasonably expected to occur with respect to any
"employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates. No "employee benefit
plan" established or maintained by the Company, its subsidiaries or any
of their ERISA Affiliates, if such "employee benefit plan" were
terminated, would have any "amount of unfunded benefit liabilities" (as
defined under ERISA). Neither the Company, its subsidiaries nor any of
their ERISA Affiliates has incurred or reasonably expects to incur any
liability under (i) Title IV of ERISA with respect to termination of,
or withdrawal from, any "employee benefit plan" or (ii) Sections 412,
4971, 4975 or 4980B of the Code. Each "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of
their ERISA Affiliates that is intended to be qualified under Section
401(a) of the Code is so qualified and nothing has occurred, whether by
action or failure to act, which would cause the loss of such
qualification.
(ee) No Default in Senior Indebtedness. No event of default
exists under any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument constituting Senior Indebtedness
(as defined in the Indenture).
(ff) New Credit Facility. The senior credit facilities (as
described in the Offering Memorandum) has been duly and validly
authorized by the Company and, when duly executed and delivered by the
Company, will be the valid and legally binding obligation of the
Company, enforceable in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles.
(gg) Compliance with Regulation S. The Company, the Guarantors
and their respective affiliates and all persons acting on their behalf
(other than the Initial Purchasers, as to whom the Company and the
Guarantors make no representation) have complied with and will comply
with the offering restrictions requirements of Regulation S in
connection with the offering of the Securities outside the United
States. The Company is a "reporting issuer," as defined in Rule 902
under the Securities Act.
(hh) Year 2000 Compliance. The Company has taken reasonable
steps to ensure that all Date Data and Date-Sensitive Systems of the
Company and its subsidiaries will be Year 2000 Compliant by December
31, 1999. As used herein: (i) "Date Data" means any data of any type
that includes date information or which is otherwise derived from,
dependent on or related to date information, (ii) "Date-Sensitive
System" means any software, microcode or hardware system or component,
including any electronic or electronically controlled system or
component, that processes any Date Data and that is installed, in
development or on order by the Company or any of its subsidiaries for
their internal use, or which the Company or any of its subsidiaries
sells, leases, licenses, assigns or otherwise provides, or the
provision or operation of which the Company or any of its subsidiaries
provides the benefit, to its customers, vendors, suppliers, affiliates
or any other third party, and (iii) "Year 2000 Compliant" means (A)
with respect to Date Data, that such data is in proper format and
accurate for all dates in the twentieth and twenty-first centuries, and
(B) with respect to Date-Sensitive Systems, that each such system
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accurately processes all Date Data, including for the twentieth and
twenty-first centuries, without loss of any functionality, including
but not limited to calculating, comparing, sequencing, storing and
displaying such Date Data (including all leap year considerations),
when used as a stand-alone system or in combination with other software
or hardware.
Any certificate signed by an officer of the Company and
delivered to the Initial Purchasers or to counsel for the Initial
Purchasers shall be deemed to be a representation and warranty by the
Company to each Initial Purchaser as to the matters set forth therein.
Section 2. Purchase, Sale and Delivery of the Securities.
(a) The Securities. The Company agrees to issue and sell to
the several Initial Purchasers, severally and not jointly, all of the
Securities upon the terms herein set forth. On the basis of the
representations, warranties and agreements herein contained, and upon
the terms but subject to the conditions herein set forth, the Initial
Purchasers agree, severally and not jointly, to purchase from the
Company the aggregate principal amount of Securities set forth opposite
their names on Schedule A, at a purchase price of 96.282% of the
principal amount thereof payable on the Closing Date.
(b) The Closing Date. Delivery of certificates for the
Securities in definitive form to be purchased by the Initial Purchasers
and payment therefor shall be made at the offices of Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois) LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or such other place as may be agreed to by the Company
and the Initial Purchasers) at 9:00 a.m. New York City time, on June
30, 1999, or such other time and date as the Initial Purchasers shall
designate by notice to the Company (the time and date of such closing
are called the "Closing Date"). The Company hereby acknowledges that
circumstances under which the Initial Purchasers may provide notice to
postpone the Closing Date as originally scheduled include, but are in
no way limited to, any determination by the Company or the Initial
Purchasers to recirculate to investors copies of an amended or
supplemented Offering Memorandum or a delay as contemplated by the
provisions of Section 16.
(c) Delivery of the Securities. The Company shall deliver, or
cause to be delivered, to Banc of America Securities LLC for the
accounts of the several Initial Purchasers certificates for the
Securities at the Closing Date against the irrevocable release of a
wire transfer of immediately available funds for the amount of the
purchase price therefor. The certificates for the Securities shall be
in such denominations and registered in the name of Cede & Co., as
nominee of the Depository, pursuant to the DTC Agreement, and shall be
made available for inspection on the business day preceding the Closing
Date at a location in New York City, as the Initial Purchasers may
designate. Time shall be of the essence, and delivery at the time and
place specified in this Agreement is a further condition to the
obligations of the Initial Purchasers.
(d) Delivery of Offering Memorandum to the Initial Purchasers.
Not later than 12:00 p.m. on the second business day following the date
of this Agreement, the Company shall delivery or cause to be delivered
copies of the Offering Memorandum in such quantities and at such places
as the Initial Purchasers shall reasonably request.
(e) Initial Purchasers as Qualified Institutional Buyers. Each
of the Initial Purchasers, severally and not jointly, represent and
warrant to the Company and the Guarantors, and agrees that:
(1) Such Initial Purchaser is either a
"qualified institutional buyer" within the meaning of Rule
144A (a "Qualified Institutional Buyer") or an Accredited
Institution, in either case, with such knowledge and
experience in financial and business matters as is necessary
in order to evaluate the merits and risks of an investment in
the Securities.
(2) Such Initial Purchaser (A) is not
acquiring the Securities with a view to any distribution
thereof or with any present intention of offering or selling
any of the Securities in
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a transaction that would violate the Securities Act or the
securities laws of any state of the United States or any other
applicable jurisdiction and (B) will be reoffering and
reselling the Securities only to (x) Qualified Institutional
Buyers in reliance on the exemption from the registration
requirements of the Securities Act provided by Rule 144A and
(y) in offshore transactions in reliance upon Regulation S
under the Securities Act.
(3) Such Initial Purchaser agrees that no
form of general solicitation or general advertising (within
the meaning of Regulation D under the Securities Act) has been
or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the
Securities pursuant hereto, including, but not limited to,
articles, notices or other communications published in any
newspaper, magazine or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general
advertising.
(4) Such Initial Purchaser agrees that, in
connection with Exempt Resales, such Initial Purchaser will
solicit offers to buy the Securities only from, and will offer
to sell the Securities only to, Subsequent Purchasers. Each
Initial Purchaser further agrees that it will offer to sell
the Securities only to, and will solicit offers to buy the
Securities only from (1)(A) Qualified Institutional Buyers
who, in purchasing the Securities will be deemed to have
represented and agreed that (x) they are purchasing the
Securities for their own accounts or accounts with respect to
which they exercise sole investment discretion and that they
or such accounts are Qualified Institutional Buyers and (y)
they acknowledge that the seller of such Securities may be
relying on the exemption from the provisions of Section 5 of
the Securities Act provided by Rule 144A thereunder and that
such Securities will not have been registered under the
Securities Act and (B) Regulation S Purchasers who, in
purchasing the Securities will be deemed to have represented
and agreed that their purchase of Securities pursuant to
Regulation S is not part of a plan or scheme to evade the
registration provisions of the Securities Act and (2)
Subsequent Purchasers that agree that (x) Securities purchased
by them may be resold, pledged or otherwise transferred within
the time period referred to under Rule 144(k) (taking into
account the provisions of Rule 144(d) under the Securities
Act, if applicable) under the Securities Act, as in effect on
the date of the transfer of such Securities, only (I) to the
Company or any of its subsidiaries, (II) to a person whom the
seller reasonably believes is a Qualified Institutional Buyer
purchasing for its own account or for the account of a
Qualified Institutional Buyer in a transaction meeting the
requirements of Rule 144A under the Securities Act, (III) in
an offshore transaction (as defined in Rule 902 under the
Securities Act) meeting the requirements of Rule 904 of the
Securities Act, (IV) in a transaction meeting the requirements
of Rule 144 under the Securities Act, (V) to an Accredited
Institution that, prior to such transfer, furnishes the
Trustee a signed letter containing certain representations and
agreements relating to the registration of transfer of such
Series A Note and, if such transfer is in respect of an
aggregate principal amount of Securities less than $250,000,
an opinion of counsel acceptable to the Company that such
transfer is in compliance with the Securities Act, (f) in
accordance with another exception from the registration
requirements of the Securities Act (and based upon an opinion
of counsel acceptable to the Company) or (g) pursuant to an
effective registration statement and, in each case, in
accordance with the applicable securities laws of any state of
the United States or any other acceptable jurisdiction and (y)
they will deliver to each person to whom such Securities or an
interest therein is transferred a notice substantially to the
effect of the foregoing.
(5) Such Initial Purchaser and its
affiliates or any person acting on its or their behalf have
not engaged in any directed selling efforts within the meaning
of Regulation S with respect to the Securities or the
Subsidiary Guarantees.
(6) The Securities offered and sold by such
Initial Purchaser pursuant hereto in reliance on Regulation S
have been and will be offered and sold only in offshore
transactions.
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(7) The sale of the Securities offered and
sold by such Initial Purchaser pursuant hereto in reliance on
Regulation S is not part of a plan or scheme to evade the
registration provisions of the Securities Act.
The Initial Purchaser acknowledges that the Company and its
Subsidiaries and, for purposes of the opinions to be delivered to each
Initial Purchaser pursuant to Sections 5(c), 5(d) and 5(e) hereof,
counsel to the Company and the Guarantors, counsel to the Investor and
counsel to the Initial Purchasers will rely upon the accuracy and truth
of the foregoing representations and the Initial Purchaser hereby
consents to such reliance.
Section 3. Additional Covenants. The Company and each of
the Guarantors, jointly and severally, further covenant and agree with
each Initial Purchaser as follows:
(a) Initial Purchasers' Review of Proposed Amendments and
Supplements. Prior to amending or supplementing the Offering Memorandum
(including any amendment or supplement through incorporation by
reference of any report filed under the Exchange Act), the Company
shall furnish to the Initial Purchasers for review a copy of each such
proposed amendment or supplement, and the Company shall not use any
such proposed amendment or supplement to which the Initial Purchasers
reasonably object.
(b) Amendments and Supplements to the Offering Memorandum and
Other Securities Act Matters. If, prior to the completion of the
placement of the Securities by the Initial Purchasers with the
Subsequent Purchasers, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Offering
Memorandum in order to make the statements therein, in the light of the
circumstances when the Offering Memorandum is delivered to a purchaser,
not misleading, or if in the reasonable opinion of the Initial
Purchasers or counsel for the Initial Purchasers it is otherwise
necessary to amend or supplement the Offering Memorandum to comply with
law, the Company agrees to promptly prepare (subject to Section 3(a)
hereof), file with the Commission (with respect to documents
incorporated by reference) and furnish at its own expense to the
Initial Purchasers, amendments or supplements to the Offering
Memorandum so that the statements in the Offering Memorandum as so
amended or supplemented will not, in the light of the circumstances
when the Offering Memorandum is delivered to a purchaser, be misleading
or so that the Offering Memorandum, as amended or supplemented, will
comply with law.
Following the consummation of the Exchange Offer or the
effectiveness of an applicable shelf registration statement and for so
long as the Securities are outstanding if, in the reasonable judgment
of the Initial Purchasers, the Initial Purchasers or any of their
affiliates (as such term is defined in the rules and regulations under
the Securities Act) are required to deliver a prospectus in connection
with sales of, or market-making activities with respect to, such
securities, (A) to periodically amend the applicable registration
statement so that the information contained therein complies with the
requirements of Section 10(a) of the Securities Act, (B) to amend the
applicable registration statement or supplement the related prospectus
or the documents incorporated therein when necessary to reflect any
material changes in the information provided therein so that the
registration statement and the prospectus will not contain any 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 existing as of the date the prospectus is so delivered,
not misleading and (C) to provide the Initial Purchasers with copies of
each amendment or supplement filed and such other documents as the
Initial Purchasers may reasonably request.
The Company hereby expressly acknowledges that the
indemnification and contribution provisions of Sections 8 and 9 hereof
are specifically applicable and relate to each offering memorandum,
registration statement, prospectus, amendment or supplement referred to
in this Section 3(b).
(c) Copies of the Offering Memorandum. The Company agrees to
furnish the Initial Purchasers, without charge, as many copies of the
Offering Memorandum and any amendments and
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supplements thereto as they shall have reasonably requested.
(d) Blue Sky Compliance. The Company shall cooperate with the
Initial Purchasers and counsel for the Initial Purchasers to qualify or
register the Securities for sale under (or obtain exemptions from the
application of) the Blue Sky or state securities laws of those
jurisdictions designated by the Initial Purchasers, shall comply with
such laws and shall continue such qualifications, registrations and
exemptions in effect so long as required for the distribution of the
Securities. The Company shall not be required to qualify as a foreign
corporation or to take any action that would subject it to general
service of process in any such jurisdiction where it is not presently
qualified or where it would be subject to taxation as a foreign
corporation. The Company will advise the Initial Purchasers promptly of
the suspension of the qualification or registration of (or any such
exemption relating to) the Securities for offering, sale or trading in
any jurisdiction or any initiation or threat of any proceeding for any
such purpose, and in the event of the issuance of any order suspending
such qualification, registration or exemption, the Company shall use
its best efforts to obtain the withdrawal thereof at the earliest
possible moment.
(e) Use of Proceeds. The Company shall apply the net proceeds
from the sale of the Securities sold by it in the manner described
under the caption "Use of Proceeds" in the Offering Memorandum.
(f) The Depositary. The Company will cooperate with the
Initial Purchasers and use its reasonable best efforts to permit the
Securities to be eligible for clearance and settlement through the
facilities of the Depositary.
(g) Additional Issuer Information. Prior to the completion of
the placement of the Securities by the Initial Purchasers with the
Subsequent Purchasers, the Company shall file, on a timely basis, with
the Commission and the Nasdaq National Market all reports and documents
required to be filed under Section 13 or 15(d) of the Exchange Act.
Additionally, at any time when the Company is not subject to Section 13
or 15(d) of the Exchange Act, for the benefit of holders and beneficial
owners from time to time of Securities, the Company shall furnish, at
its expense, upon request, to holders and beneficial owners of
Securities and prospective purchasers of Securities information
("Additional Issuer Information") satisfying the requirements of
subsection (d)(4) of Rule 144A.
(h) Future Reports to the Initial Purchasers. For so long as
any Securities or Exchange Securities remain outstanding, the Company
will furnish to Banc of America Securities LLC (i) as soon as
practicable after the end of each fiscal year, copies of the Annual
Report of the Company containing the balance sheet of the Company as of
the close of such fiscal year and statements of income, stockholders'
equity and cash flows for the year then ended and the opinion thereon
of the Company's independent public or certified public accountants;
(ii) as soon as practicable after the filing thereof, copies of each
proxy statement, Annual Report on Form 10-K, Quarterly Report on Form
10-Q, Current Report on Form 8-K or other report filed by the Company
with the Commission, the NASD or any securities exchange; and (iii) as
soon as available, copies of any report or communication of the Company
mailed generally to holders of its capital stock or debt securities
(including the holders of the Securities), provided that, for the
purpose hereof, any report or statement filed under the Commission's
▇▇▇▇▇ system shall be deemed furnished as required hereunder.
(i) No Integration. The Company agrees that it will not and
will cause its Affiliates not to make any offer or sale of securities
of the Company of any class (other than the Securities) if, as a result
of the doctrine of "integration" referred to in Rule 502 under the
Securities Act, such offer or sale would render invalid (for the
purpose of (i) the sale of the Securities by the Company to the Initial
Purchasers, (ii) the resale of the Securities by the Initial Purchasers
to Subsequent Purchasers or (iii) the resale of the Securities by such
Subsequent Purchasers to others) the exemption from the registration
requirements of the Securities Act provided by Section 4(2) thereof or
by Rule 144A or by Regulation S thereunder or otherwise.
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(j) Legended Securities. Each certificate for a Note will bear
the legend contained in "Notice to Investors" in the Offering
Memorandum for the time period and upon the other terms stated in the
Offering Memorandum.
(k) PORTAL. The Company will use its reasonable best efforts
to cause the Notes issued pursuant to Rule 144A to be eligible for the
National Association of Securities Dealers, Inc.'s PORTAL market (the
"PORTAL market").
Banc of America Securities LLC, on behalf of the several
Initial Purchasers, may, in its sole discretion, waive in writing the
performance by the Company of any one or more of the foregoing covenants or
extend the time for their performance.
Section 4. Payment of Expenses. The Company agrees to pay all
costs, fees and expenses incurred in connection with the performance of its
obligations hereunder and in connection with the transactions contemplated
hereby, including without limitation (i) all expenses incident to the issuance
and delivery of the Securities (including all printing and engraving costs),
(ii) all necessary issue, transfer and other stamp taxes in connection with the
issuance and sale of the Securities to the Initial Purchasers, (iii) all fees
and expenses of the Company's and the Guarantors' counsel, independent public or
certified public accountants and other advisors, (iv) all costs and expenses
incurred in connection with the preparation, printing, filing, shipping and
distribution of each preliminary Offering Memorandum and the Offering Memorandum
(including financial statements and exhibits), and all amendments and
supplements thereto, this Agreement, the Registration Rights Agreement, the
Indenture, the DTC Agreement, and the Notes and the Guarantees, (v) all filing
fees, reasonable attorneys' fees and reasonable expenses incurred by the Company
or the Initial Purchasers in connection with qualifying or registering (or
obtaining exemptions from the qualification or registration of) all or any part
of the Securities for offer and sale under the Blue Sky laws and, if requested
by the Initial Purchasers, preparing and printing a "Blue Sky Survey" or
memorandum, and any supplements thereto, advising the Initial Purchasers of such
qualifications, registrations and exemptions, (vi) the fees and expenses of the
Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture, the Securities and the Exchange Securities, (vii)
any fees payable in connection with the rating of the Securities or the Exchange
Securities with the ratings agencies and the listing of the Securities with the
PORTAL market, (viii) all fees and expenses (including reasonable fees and
expenses of counsel) of the Company and the Guarantors in connection with
approval of the Securities by DTC for "book-entry" transfer, and (ix) the
performance by the Company and the Guarantors of their respective other
obligations under this Agreement. Except as provided in this Section 4, Section
6, Section 8 and Section 9 hereof, the Initial Purchasers shall pay their own
expenses, including the fees and disbursements of their counsel.
Section 5. Conditions of the Obligations of the Initial Purchasers.
(A) The obligations of the several Initial Purchasers to
purchase and pay for the Securities as provided herein on the Closing Date shall
be subject to the accuracy of the representations and warranties on the part of
the Company set forth in Section 1 hereof as of the date hereof and as of the
Closing Date as though then made and to the timely performance by the Company of
its covenants and other obligations hereunder, and to each of the following
additional conditions:
(a) Accountants' Comfort Letter. On the date hereof, the
Initial Purchasers shall have received from PricewaterhouseCoopers LLP,
independent public or certified public accountants for the Company, a
letter dated the date hereof addressed to the Initial Purchasers, in
form and substance satisfactory to the Initial Purchasers, containing
statements and information of the type ordinarily included in
accountant's "comfort letters" to Initial Purchasers, delivered
according to Statement of Auditing Standards Nos. 72 and 76 (or any
successor bulletins), with respect to the audited and unaudited
financial statements and certain financial information contained in the
Registration Statement and the Offering Memorandum.
(b) No Material Adverse Change or Ratings Agency Change. For
the period from and after the date of this Agreement and prior to the
Closing Date:
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(i) in the judgment of the Initial Purchasers
there shall not have occurred any Material Adverse Change; and
(ii) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any securities of the Company or any of
its subsidiaries by any "nationally recognized statistical
rating organization" as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act.
(c) Opinion of Counsel for the Company. On the Closing Date
the Initial Purchasers shall have received the favorable opinion of
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Company, dated as of
such Closing Date, the form of which is attached as Exhibit B.
(d) Opinion of Counsel for the Investor. On the Closing Date
the Initial Purchasers shall have received the favorable opinion of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Investor,
dated as of such Closing Date, the form of which is attached as Exhibit
C.
(e) Opinion of Counsel for the Initial Purchasers. On the
Closing Date the Initial Purchasers shall have received the favorable
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, dated
as of such Closing Date, with respect to such matters as may be
reasonably requested by the Initial Purchasers.
(f) Officers' Certificate. On the Closing Date the Initial
Purchasers shall have received a written certificate executed by the
Chairman of the Board, Chief Executive Officer or President of the
Company and the Chief Financial Officer or Chief Accounting Officer of
the Company, dated as of the Closing Date, to the effect set forth in
subsection (b)(ii) of this Section 5, and further to the effect that:
(i) for the period from and after the date of this
Agreement and prior to the Closing Date there has not occurred
any Material Adverse Change;
(ii) the representations, warranties and covenants of
the Company set forth in Section 1 of this Agreement are true
and correct with the same force and effect as though expressly
made on and as of the Closing Date; and
(iii) the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date.
(g) Bring-down Comfort Letter. On the Closing Date the Initial
Purchasers shall have received from PricewaterhouseCoopers LLP,
independent public or certified public accountants for the Company, a
letter dated such date, in customary form and substance reasonably
satisfactory to the Initial Purchasers, to the effect that they
reaffirm the statements made in the letter furnished by them pursuant
to subsection (a) of this Section 5, except that the specified date
referred to therein for the carrying out of procedures shall be no more
than three business days prior to the Closing Date.
(h) PORTAL Listing. At the Closing Date the Notes issued
pursuant to Rule 144A shall have been designated for trading on the
PORTAL market.
(i) Registration Rights Agreement. The Company shall have
entered into the Registration Rights Agreement and the Initial
Purchasers shall have received executed counterparts thereof.
(j) Concurrent Transactions. The Merger shall have been
consummated on or prior to the Closing Date on substantially the terms
and conditions described in the Company's proxy statement/prospectus
declared effective by the Commission on May 28, 1999 (File No.
333-76101).
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(k) Additional Documents. On or before the Closing Date, the
Initial Purchasers and counsel for the Initial Purchasers shall have
received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon the
issuance and sale of the Securities as contemplated herein, or in order
to evidence the accuracy of any of the representations and warranties,
or the satisfaction of any of the conditions or agreements, herein
contained.
If any condition specified in this Section 5(A) is not
satisfied when and as required to be satisfied, this Agreement may be terminated
by the Initial Purchasers by notice to the Company at any time on or prior to
the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Section 4, Section 6, Section 8 and
Section 9 shall at all times be effective and shall survive such termination.
(B) The obligations of the Company set forth herein shall be
subject to (i) the accuracy of the representations and warranties on the part of
the Initial Purchasers set forth herein as of the date hereof and as of the
Closing Date as though then made and (ii) the consummation of the merger on or
prior to the Closing Date on substantially the terms and conditions described in
the Company's proxy statement/prospectus declared effective by the Commission on
May 28, 1999 (File No. 333-76101).
If any condition specified in this Section 5(B) is not
satisfied when and as required to be satisfied, this Agreement may be terminated
by the Company by notice to the Initial Purchasers at any time on or prior to
the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Section 4, Section 6, Section 8, and
Section 9 shall at all times be effective and shall survive such termination.
Section 6. Reimbursement of Initial Purchasers' Expenses. If
this Agreement is terminated by the Initial Purchasers pursuant to Section 5, or
if the sale to the Initial Purchasers of the Securities on the Closing Date is
not consummated because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision hereof,
the Company agrees to reimburse the Initial Purchasers (or such Initial
Purchasers as have terminated this Agreement with respect to themselves),
severally, upon demand for all out-of-pocket expenses that shall have been
reasonably incurred by the Initial Purchasers in connection with the proposed
purchase and the offering and sale of the Securities, including but not limited
to reasonable fees and reasonable disbursements of counsel, printing expenses,
travel expenses, postage, facsimile and telephone charges.
Section 7. Offer, Sale and Resale Procedures. Each of the
Initial Purchasers, on the one hand and the Company and each of the Guarantors,
on the other hand, hereby establish and agree to observe the following
procedures in connection with the offer and sale of the Securities:
(i) Offers and Sales Only to Qualified Institutional
Buyers. Offers and sales of the Securities will be made only
by the Initial Purchasers or Affiliates thereof qualified to
do so in the jurisdictions in which such offers or sales are
made. Each such offer or sale shall only be made (A) to
persons whom the offeror or seller reasonably believes to be
qualified institutional buyers (as defined in Rule 144A under
the Securities Act) or (B) non-U.S. persons outside the United
States to whom the offeror or seller reasonably believes
offers and sales of the Securities may be made in reliance
upon Regulation S under the Securities Act, upon the terms and
conditions set forth in Annex I hereto, which Annex I is
hereby expressly made a part hereof.
(ii) No General Solicitation. The Securities will be
offered by approaching prospective Subsequent Purchasers on an
individual basis. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the
Securities Act) will be used in the United States in
connection with the offering of the Securities.
(iii) Restrictions on Transfer. Upon original
issuance by the Company, and until such time as the same is no
longer required under the applicable requirements of the
Securities Act, the Securities (and all securities issued in
exchange therefor or in substitution thereof, other than the
Exchange Securities) shall bear the following legend:
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"THE NOTE (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ SECURITIES ACT OF 1933, AS AMENDED, AND THE NOTE EVIDENCED
HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER
EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE NOTE EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH NOTE MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I)(A) TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), PURCHASING FOR ITS OWN
ACCOUNT IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER
THE SECURITIES ACT, (B) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 OF THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES TO A
FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT OR (D) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
PROVIDED THAT IN THE CASE OF A TRANSFER PURSUANT TO CLAUSE (D) SUCH
TRANSFER IS EFFECTED BY THE DELIVERY TO THE TRANSFEREE OF DEFINITIVE
SECURITIES REGISTERED IN ITS NAME (OR ITS NOMINEES NAME) IN THE BOOKS
MAINTAINED BY THE REGISTRAR, AND IS SUBJECT TO THE RECEIPT BY THE
REGISTRAR (AND THE ISSUER, IF THEY SO REQUEST) OF A CERTIFICATION OF
THE TRANSFEROR AND AN OPINION OF COUNSEL TO THE EFFECT THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (II) TO THE ISSUER
OR (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE NOTE
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
Following the sale of the Securities by the Initial Purchasers
to Subsequent Purchasers pursuant to the terms hereof, the
Initial Purchasers shall not be liable or responsible to the
Company for any losses, damages or liabilities suffered or
incurred by the Company, including any losses, damages or
liabilities under the Securities Act, arising from or relating
to any resale or transfer of any Security.
Section 8. Indemnification.
(a) Indemnification of the Initial Purchasers. The Company and
each of the Guarantors jointly and severally agree to indemnify and
hold harmless each Initial Purchaser, its directors, officers and
employees, and each person, if any, who controls any Initial Purchaser
within the meaning of the Securities Act and the Exchange Act against
any loss, claim, damage, liability or expense, as incurred, to which
such Initial Purchaser or such controlling person may become subject,
under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, or at common law (including in settlement
of any litigation, if such settlement is effected with the written
consent of the Company), insofar as such loss, claim, damage, liability
or expense (or actions in respect thereof as contemplated below) arises
out of or is based (i) upon any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Offering
Memorandum or the Offering Memorandum (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the
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statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that none of the Company
and the Guarantors shall be liable in any such case to the extent that
any such loss, claim, damage, liability or expense 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 the written information furnished to the
Company by the Initial Purchasers expressly for use in any Preliminary
Offering Memorandum or the Offering Memorandum (or any amendment or
supplement thereto) and provided, further, that the indemnification
contained in this paragraph (a) with respect to the Preliminary
Offering Memorandum shall not inure to the benefit of the Initial
Purchasers (or to the benefit of any person controlling the Initial
Purchasers) on account of any such loss, claim, damage, liability or
expense arising from the sale of the Securities by the Initial
Purchasers to any person if a copy of the Offering Memorandum shall not
have been delivered or sent to such person and each untrue statement of
a material fact contained in, and each omission or alleged omission of
a material fact from, such Preliminary Offering Memorandum was
corrected in the Offering Memorandum and it shall have been determined
by a final judgment of a court of competent jurisdiction that any
Initial Purchaser and each person, if any, who controls such Initial
Purchaser would not have incurred such losses, claims, damages,
liabilities and expenses had the Offering Memorandum been delivered or
sent.
(b) Indemnification of the Company, its Directors and
Officers. Each Initial Purchaser agrees, severally and not jointly, to
indemnify and hold harmless the Company and each of its directors and
each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act, against any loss, claim, damage,
liability or expense, as incurred, to which the Company or any such
director, or controlling person may become subject, under the
Securities Act, the Exchange Act, or other federal or state statutory
law or regulation, or at common law (including in settlement of any
litigation, if such settlement is effected with the written consent of
such Initial Purchaser), insofar as such loss, claim, damage, liability
or expense (or actions in respect thereof as contemplated below) arises
out of or is based upon any untrue or alleged untrue statement of a
material fact contained in any preliminary Offering Memorandum
(including the Preliminary Offering Memorandum) or the Offering
Memorandum (or any amendment or supplement thereto), or arises out of
or is based upon 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, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in any Preliminary Offering
Memorandum or the Offering Memorandum (or any amendment or supplement
thereto), in reliance upon and in conformity with written information
furnished to the Company by the Initial Purchasers expressly for use
therein; and to reimburse the Company, or any such director or
controlling person for any legal and other expenses reasonably incurred
by the Company, or any such director or controlling person in
connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action. The
Company hereby acknowledges that the only information that the Initial
Purchasers have furnished to the Company expressly for use in any
Preliminary Offering Memorandum or the Offering Memorandum (or any
amendment or supplement thereto) are the statements set forth in the
first three sentences of the third paragraph, the fourth paragraph, the
third sentence of the fifth paragraph and the seventh paragraphs under
the caption "Plan of Distribution" in the Preliminary Offering
Memorandum and the Offering Memorandum; and the Initial Purchasers
confirm that such statements are correct. The indemnity agreement set
forth in this Section 8(b) shall be in addition to any liabilities that
each Initial Purchaser may otherwise have.
(c) Notifications and Other Indemnification Procedures.
Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying
party under this Section 8, notify the indemnifying party in writing 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 for contribution or otherwise than under
the indemnity agreement contained in this Section 8 or to the extent it
is not prejudiced as a proximate result of such failure. In case any
such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to
participate in and, to the extent that it shall elect, jointly
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with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, 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 a conflict may arise between
the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select
separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to
such indemnified party of such indemnifying party's election so to
assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel
(together with local counsel), approved by the indemnifying party (Banc
of America Securities LLC in the case of Section 8(b) and Section 9),
representing the indemnified parties who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the
action, in each of which cases the fees and expenses of counsel shall
be at the expense of the indemnifying party. Each indemnified party, as
a condition to the indemnity agreements contained in Sections 8(a) and
8(b) hereof, shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action.
(d) Settlements. The indemnifying party under this Section 8
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party against any loss, claim,
damage, liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
Section 8(c) hereof, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or
consent to the entry of judgment in any pending or threatened action,
suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise
or consent includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
action, suit or proceeding.
Section 9. Contribution. If the indemnification provided for
in Section 8 is for any reason held to be unavailable to or otherwise
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by
such indemnified party, as incurred, as a result of any losses, claims, damages,
liabilities or expenses referred to therein (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Initial Purchasers, on the other hand, from the offering of the
Securities pursuant to this Agreement 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
Initial Purchasers, on the other hand, in connection with the statements or
omissions or inaccuracies in the representations and warranties herein which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company, on the one hand, and the Initial Purchasers, on the other hand, in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the
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total net proceeds from the offering of the Securities pursuant to this
Agreement (before deducting expenses) received by the Company, and the total
discount received by the Initial Purchasers bear to the aggregate initial
offering price of the Securities. The relative fault of the Company, on the one
hand, and the Initial Purchasers, on the other hand, shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact or any such inaccurate or alleged inaccurate representation or warranty
relates to information supplied by the Company, on the one hand, or the Initial
Purchasers, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 8(c), any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in
Section 8(c) with respect to notice of commencement of any action shall apply if
a claim for contribution is to be made under this Section 9; provided, however,
that no additional notice shall be required with respect to any action for which
notice has been given under Section 8(c) for purposes of indemnification.
The Company and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Initial Purchasers were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Initial
Purchaser shall be required to contribute any amount in excess of the discount
received by such Initial Purchaser in connection with the Securities distributed
by it. 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. The Initial
Purchasers' obligations to contribute pursuant to this Section 9 are several,
and not joint, in proportion to their respective commitments as set forth
opposite their names in Schedule A. For purposes of this Section 9, each
director, officer and employee of an Initial Purchaser and each person, if any,
who controls an Initial Purchaser within the meaning of the Securities Act and
the Exchange Act shall have the same rights to contribution as such Initial
Purchaser, and each director of the Company, and each person, if any, who
controls the Company with the meaning of the Securities Act and the Exchange Act
shall have the same rights to contribution as the Company.
Section 10. Termination of this Agreement. Prior to the
Closing Date, this Agreement may be terminated by the Initial Purchasers by
notice given to the Company if at any time (i) trading or quotation in any of
the Company's securities shall have been suspended or limited by the Commission
or by the Nasdaq Stock Market, or trading in securities generally on either the
Nasdaq Stock Market or the New York Stock Exchange shall have been suspended or
limited, or minimum or maximum prices shall have been generally established on
any of such stock exchanges by the Commission or the NASD; (ii) a general
banking moratorium shall have been declared by any of federal, New York,
Delaware or California authorities; (iii) there shall have occurred any outbreak
or escalation of national or international hostilities or any crisis or
calamity, or any change in the United States or international financial markets,
or any substantial change or development involving a prospective substantial
change in United States' or international political, financial or economic
conditions, as in the judgment of the Initial Purchasers is material and adverse
and makes it impracticable to market the Securities in the manner and on the
terms described in the Offering Memorandum or to enforce contracts for the sale
of securities; (iv) in the judgment of the Initial Purchasers there shall have
occurred any Material Adverse Change; or (v) the Company shall have sustained a
loss by strike, fire, flood, earthquake, accident or other calamity of such
character as in the judgment of the Initial Purchasers may interfere materially
with the conduct of the business and operations of the Company regardless of
whether or not such loss shall have been insured. Any termination pursuant to
this Section 10 shall be without liability on the part of (a) the Company to any
Initial Purchaser, except that the Company shall be obligated to reimburse the
expenses of the Initial Purchasers pursuant to Sections 4 and 6 hereof, (b) any
Initial Purchaser to the Company, or (c) of any party hereto to any other party
except that the provisions of Section 8 and Section 9 shall at all times be
effective and shall survive such termination.
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Section 11. Representations and Indemnities to Survive
Delivery. The respective indemnities, agreements, representations, warranties
and other statements of the Company, of its officers and of the several Initial
Purchasers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Initial Purchaser or the Company or any of its or their partners, officers or
directors or any controlling person, as the case may be, and will survive
delivery of and payment for the Securities sold hereunder and any termination of
this Agreement.
Section 12. Notices. All communications hereunder shall
be in writing and shall be mailed, hand delivered or telecopied and confirmed to
the parties hereto as follows:
If to the Initial Purchasers:
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to the Company or the Guarantors:
Juno Lighting, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
Section 13. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto, including any substitute
Initial Purchasers pursuant to Section 16 hereof, and to the benefit of the
employees, officers and directors and controlling persons referred to in Section
8 and Section 9, and in each case their respective successors, and no other
person will have any right or obligation hereunder. The term "successors" shall
not include any purchaser of the Securities as such from any of the Initial
Purchasers merely by reason of such
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purchase.
Section 14. Partial Unenforceability. The invalidity or
unenforceability of any Section, paragraph or provision of this Agreement shall
not affect the validity or enforceability of any other Section, paragraph or
provision hereof. If any Section, paragraph or provision of this Agreement is
for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
Section 15. Governing Law Provisions. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
(a) Consent to Jurisdiction. Any legal suit, action or
proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby ("Related Proceedings") may be
instituted in the federal courts of the United States of America
located in the City and County of New York or the courts of the State
of New York in each case located in the City and County of New York
(collectively, the "Specified Courts"), and each party irrevocably
submits to the non-exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court
(a "Related Judgment"), as to which such jurisdiction is non-exclusive)
of such courts in any such suit, action or proceeding. Service of any
process, summons, notice or document by mail to such party's address
set forth above shall be effective service of process for any suit,
action or other proceeding brought in any such court. The parties
irrevocably and unconditionally waive any objection to the laying of
venue of any suit, action or other proceeding in the Specified Courts
and irrevocably and unconditionally waive and agree not to plead or
claim in any such court that any such suit, action or other proceeding
brought in any such court has been brought in an inconvenient forum.
Section 16. Default of One or More of the Several Initial
Purchasers. If any one or more of the several Initial Purchasers shall fail or
refuse to purchase Securities that it or they have agreed to purchase hereunder
on the Closing Date, and the aggregate number of Securities which such
defaulting Initial Purchaser or Initial Purchasers agreed but failed or refused
to purchase does not exceed 10% of the aggregate number of the Securities to be
purchased on such date, the other Initial Purchasers shall be obligated,
severally, in the proportions that the number of Securities set forth opposite
their respective names on Schedule A bears to the aggregate number of Securities
set forth opposite the names of all such non-defaulting Initial Purchasers, or
in such other proportions as may be specified by the Initial Purchasers with the
consent of the non-defaulting Initial Purchasers, to purchase the Securities
which such defaulting Initial Purchaser or Initial Purchasers agreed but failed
or refused to purchase on such date. If any one or more of the Initial
Purchasers shall fail or refuse to purchase Securities and the aggregate number
of Securities with respect to which such default occurs exceeds 10% of the
aggregate number of Securities to be purchased on the Closing Date, and
arrangements satisfactory to the Initial Purchasers and the Company for the
purchase of such Securities are not made within 48 hours after such default,
this Agreement shall terminate without liability of any party to any other party
except that the provisions of Section 4, Section 6, Section 8 and Section 9
shall at all times be effective and shall survive such termination. In any such
case either the Initial Purchasers or the Company shall have the right to
postpone the Closing Date, as the case may be, but in no event for longer than
seven days in order that the required changes, if any, to the Offering
Memorandum or any other documents or arrangements may be effected.
As used in this Agreement, the term "Initial Purchaser" shall
be deemed to include any person substituted for a defaulting Initial Purchaser
under this Section 10. No action taken under this Section 16 nor the termination
of portions of this Agreement shall relieve any defaulting Initial Purchaser
from liability in respect of any default of such Initial Purchaser under this
Agreement.
Section 17. General Provisions. This Agreement constitutes the
entire agreement of the parties to this Agreement and supersedes all prior
written or oral and all contemporaneous oral agreements, understandings and
negotiations with respect to the subject matter hereof. This Agreement may be
executed in two or more counterparts, each one of which shall be an original,
with the same effect as if the signatures thereto and hereto were
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upon the same instrument. This Agreement may not be amended or modified unless
in writing by all of the parties hereto, and no condition herein (express or
implied) may be waived unless waived in writing by each party whom the condition
is meant to benefit. The Table of Contents and the section headings herein are
for the convenience of the parties only and shall not affect the construction or
interpretation of this Agreement.
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If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
JUNO LIGHTING, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Corporate Planning
JUNO MANUFACTURING, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
INDY LIGHTING, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
ADVANCED FIBEROPTIC
TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
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The foregoing Purchase Agreement is hereby confirmed and
accepted by the Initial Purchasers as of the date first above written.
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON CORPORATION
By: Banc of America Securities LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
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SCHEDULE A
Aggregate Principal
Initial Purchasers Amount of Securities
to be Purchased
Banc of America Securities LLC......................... $ 81,250,000
Credit Suisse First Boston Corporation................. 43,750,000
Total............................................. $ 125,000,000
31
EXHIBIT A
SUBSIDIARIES
Juno Manufacturing, Inc.
Indy Lighting, Inc.
Advanced Fiberoptic Technologies, Inc.
Juno Lighting, Ltd.
A-1
32
EXHIBIT B
Opinion of counsel for the Company to be delivered pursuant to
Section 5(c) of the Purchase Agreement.
B-1
33
EXHIBIT C
Opinion of counsel for the Investor to be delivered pursuant
to Section 5(d) of the Purchase Agreement.
C-1
34
ANNEX I
Resale Pursuant to Regulation S or Rule 144A. Each Initial Purchaser
understands that:
(a) Such Initial Purchaser agrees that it has not offered or sold and
will not offer or sell the Securities in the United States or to, or for the
benefit or account of, a U.S. Person (other than a distributor), in each case,
as defined in Rule 902 under the Securities Act (i) as part of its distribution
at any time and (ii) otherwise until 40 days after the later of the commencement
of the offering of the Securities pursuant hereto and the Closing Date, other
than in accordance with Regulation S of the Securities Act or another exemption
from the registration requirements of the Securities Act. Such Initial Purchaser
agrees that, during such 40-day restricted period, it will not cause any
advertisement with respect to the Securities (including any "tombstone"
advertisement) to be published in any newspaper or periodical or posted in any
public place and will not issue any circular relating to the Securities, except
such advertisements as are permitted by and include the statements required by
Regulation S.
(b) Such Initial Purchaser agrees that, at or prior to confirmation of
a sale of Securities by it to any distributor, dealer or person receiving a
selling concession, fee or other remuneration during the 40-day restricted
period referred to in Rule 903(c)(2) under the Securities Act, it will send to
such distributor, dealer or person receiving a selling concession, fee or other
remuneration 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, as amended (the "Securities Act"), and may not
be offered and sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of your distribution at any
time or (ii) otherwise until 40 days after the later of the date the
Notes were first offered to persons other than "distributors" (as
defined in Regulation S) in reliance upon Regulation S and the Closing
Date, except in either case in accordance with Regulation S under the
Securities Act (or Rule 144A or to Accredited Institutions in
transactions that are exempt from the registration requirements of the
Securities Act), and in connection with any subsequent sale by you of
the Notes covered hereby in reliance on Regulation S during the period
referred to above to any distributor, dealer or person receiving a
selling concession, fee or other remuneration, you must deliver a
notice to substantially the foregoing effect. Terms used above have the
meanings assigned to them in Regulation S."
