EXHIBIT 2.2
EXECUTION COPY
XXXXXX METALS INC.
US$175,000,000
6-3/8% Senior Notes Due 2014
Purchase Agreement
New York, New York
February 13, 2004
Citigroup Global Markets Inc.
As Representative of the Initial Purchasers
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Metals Inc., a corporation existing under the laws of
Canada (the "Company"), proposes to issue and sell to the several parties named
in Schedule I hereto (the "Initial Purchasers"), for whom you (the
"Representative") are acting as representative, US$175,000,000 principal amount
of its 6-3/8% Senior Notes Due 2014 (the "Securities"). The Securities are to be
issued under an indenture (the "Indenture"), to be dated as of February 20, 2004
between the Company and U.S. Bank National Association, as trustee (the
"Trustee"). The Securities have the benefit of a registration rights agreement
(the "Registration Rights Agreement"), to be dated as of February 20, 2004,
among the Company and the Initial Purchasers, pursuant to which the Company has
agreed to register the Securities under the Act subject to the terms and
conditions therein specified. To the extent there are no additional parties
listed on Schedule I other than you, the term Representative as used herein
shall mean you as the Initial Purchaser, and the terms Representatives and
Initial Purchasers shall mean either the singular or plural as the context
requires. The use of the neuter in this Agreement shall include the feminine and
masculine wherever appropriate. Certain terms used herein are defined in Section
19 hereof.
The sale of the Securities to the Initial Purchasers will be
made without registration of the Securities under the Act in reliance upon
exemptions from the registration requirements of the Act.
In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum, dated February 5, 2004 (the
"Preliminary Memorandum"), and a final offering memorandum, dated February 13,
2004 (as amended or supplemented at the Execution Time, the "Final Memorandum").
Each of the Preliminary Memorandum and the Final Memorandum sets forth certain
information concerning the Company and the Securities. The Company hereby
confirms that it has authorized the use of the Preliminary Memorandum
and the Final Memorandum, and any amendment or supplement thereto, in connection
with the offer and sale of the Securities by the Initial Purchasers.
1. Representations and Warranties. The Company
represents and warrants to each Initial Purchaser as set forth below in this
Section 1.
(a) The Preliminary Memorandum, at the date thereof, did
not contain any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
At the Execution Time, on the Closing Date and on any settlement date,
the Final Memorandum did not and will not (and any amendment or
supplement thereto, at the date thereof, at the Closing Date and on any
settlement date, will not), contain any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that -------- ------- the
Company makes no representation or warranty as to the information
contained in or omitted from the Preliminary Memorandum or the Final
Memorandum, or any amendment or supplement thereto, in reliance upon
and in conformity with information furnished in writing to the Company
by or on behalf of the Initial Purchasers through the Representative
specifically for inclusion therein.
(b) Within the last six months, neither the Company, nor,
to the best of the Company's knowledge after due inquiry, any of its
Affiliates, nor any person acting on its or their behalf has, directly
or indirectly, made offers or sales of any security, or solicited
offers to buy any security, under circumstances that would require the
registration of the Securities under the Act, other than the Securities
to be exchanged pursuant to the Registration Rights Agreement.
(c) Neither the Company, nor, to the best of the
Company's knowledge after due inquiry, any of its Affiliates, nor any
person acting on its or their behalf (other than the Initial
Purchasers, as to which no representation is made) has engaged in any
form of general solicitation or general advertising (within the meaning
of Regulation D) in connection with any offer or sale of the Securities
in the United States.
(d) When the Securities are issued pursuant to this
Agreement, the Securities will satisfy the eligibility requirements of
Rule 144A(d)(3) under the Act.
(e) Neither the Company, nor, to the best of the
Company's knowledge after due inquiry, any of its Affiliates, nor any
person acting on its or their behalf (other than the Initial
Purchasers, as to which no representation is made) has engaged in any
directed selling efforts with respect to the Securities, and each of
them has complied with the offering restrictions requirement of
Regulation S. Terms used in this paragraph have the meanings given to
them by Regulation S.
(f) The Company is a "foreign issuer" within the meaning
of Rule 902(e) under the Act, and there is no "substantial U.S. market
interest" in its debt securities within the meaning of Rule 902(j)(2)
under the Act;
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(g) The Company is not and, after giving effect to the
offering and sale of the Securities, the Company will not be required
to register as an "investment company", as such terms are defined in
the Investment Company Act.
(h) In the last six months, the Company has not paid or
agreed to pay to any person any compensation for soliciting another to
purchase any securities of the Company (except as contemplated by this
Agreement or the Final Memorandum).
(i) The Company has not taken, directly or indirectly,
any action designed to cause or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(j) Neither the Company nor any of its "significant
subsidiaries" (as defined in Rule 1-02(w) of Regulation S-X under the
Act) of the Company (each, a "Significant Subsidiary") has sustained
since the date of the latest audited financial statements included in
the Final Memorandum any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, except as would not individually or in the aggregate
have a material adverse effect on the general affairs, management,
current or future consolidated financial position, shareholders' equity
or results of operations of the Company and its subsidiaries, taken as
a whole (a "Material Adverse Effect") and, otherwise than as set forth
or contemplated in the Final Memorandum; and, since the date as of
which information is given in the Final Memorandum, there has not been
any change in the share capital or long-term debt of the Company, on a
consolidated basis, except for (i) the issuance of the Securities and
the application of the net proceeds therefrom, and (ii) the exercise of
stock options under the Company's stock option plan, or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Final Memorandum.
(k) The list of Significant Subsidiaries of the Company
found in Schedule II hereto is complete and accurate.
(l) The Company and its Significant Subsidiaries have
good and marketable title in fee simple to all real property and good
and marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except such
as are described in the Final Memorandum or such as do not affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its Significant
Subsidiaries, in each case in a manner that would not have a Material
Adverse Effect; and any real property and buildings held under lease by
the Company and its Significant Subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are
not material to the Company and its subsidiaries taken as a whole, and
do not interfere with
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the use made and proposed to be made of such property and buildings by
the Company and its Significant Subsidiaries.
(m) The Company is duly amalgamated and is validly
existing under the laws of Canada, with all necessary corporate power
and authority to own its properties and conduct its business as
described in the Final Memorandum, and has been duly qualified as an
extraprovincial or foreign corporation for the transaction of business
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, and is subject to no liability or disability by reason
of the failure to be so qualified in any such jurisdiction that is
material to the Company and its subsidiaries, taken as a whole; and
each Significant Subsidiary has been duly incorporated or formed and is
validly existing as a corporation or limited liability company under
the laws of its jurisdiction of formation.
(n) All of the issued shares of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of each Significant
Subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(o) The Securities have been duly authorized and, when
executed and delivered by the Company pursuant to this Agreement and
authenticated by the Trustee, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles including,
without limitation, concepts of good faith and fair dealing (regardless
of whether enforcement is considered in a proceeding in equity or at
law); the Indenture has been duly authorized and, when executed and
delivered by the Company and the Trustee, will constitute a valid and
legally binding instrument of the Company, enforceable against the
Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles including, without limitation, concepts of good faith
and fair dealing (regardless of whether enforcement is considered in a
proceeding in equity or at law); no registration, filing or recording
of the Indenture under the laws of Canada or any province thereof is
necessary in order to preserve or protect the validity or
enforceability of the Indenture or the Securities; the Registration
Rights Agreement has been duly authorized and, when executed and
delivered by the Company and the Representative, will constitute a
valid and legally binding agreement of the Company, enforceable against
the Company in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles including, without limitation, concepts of good faith
and fair dealing (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except as the enforcement of
indemnification and contribution provisions thereof may be limited by
federal, state or provincial securities laws or the public policy
considerations underlying such laws; and the Securities, the Indenture
and the
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Registration Rights Agreement will conform to the descriptions thereof
in the Final Memorandum.
(p) This Agreement has been duly authorized, executed and
delivered by the Company.
(q) The issue and sale of the Securities and the
compliance by the Company with all the provisions of the Securities,
the execution and delivery of the Indenture, this Agreement and the
Registration Rights Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of the provisions of the Articles of Amalgamation
or By-laws of the Company; and, except as would not individually or in
the aggregate have a Material Adverse Effect, will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
sale/leaseback agreement, loan agreement or other similar financing
agreement or instrument or other agreement or instrument to which the
Company or any of its Significant Subsidiaries is a party or by which
the Company or any of its Significant Subsidiaries is bound or to which
any of the property or assets of the Company or any of its Significant
Subsidiaries is subject, nor will such action result in any violation
of any statute or any order, rule or regulation of any court, central
bank, stock exchange or governmental agency or body ("Governmental
Agency") having jurisdiction over the Company or any of its Significant
Subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration, clearance or qualification
("Governmental Authorizations") of or with any such court or
Governmental Agency is required for the issue and sale of the
Securities or the consummation by the Company of the transactions
contemplated by this Agreement, the Indenture or the Registration
Rights Agreement, except such as have been obtained under the Canada
Business Corporations Act and will be obtained under the Act and the
Trust Indenture Act and such Governmental Authorizations as may be
required under state securities or blue sky laws in connection with the
purchase and distribution of the Securities by the Initial Purchasers.
(r) Neither the Company nor any of its subsidiaries is in
violation of its respective constating documents or by-laws or in
default in the performance or observance of any obligation, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except as
would not individually or in the aggregate have a Material Adverse
Effect.
(s) The Company and each of its subsidiaries have all
licenses, franchises, permits, authorizations, approvals and orders and
other concessions of and from all Governmental Agencies that are
necessary to own or lease their properties and conduct their businesses
as described in the Final Memorandum, except as would not individually
or in the aggregate have a Material Adverse Effect.
(t) The statements set forth in the Final Memorandum
under the captions "Description of the Notes", "Exchange Offer;
Registration Rights" and "Plan of
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Distribution", insofar as they purport to constitute summaries of the
terms of the Securities and the Indenture, the Registration Rights
Agreement and this Agreement, respectively, and under the caption
"Income Tax Considerations", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate
and fair.
(u) Other than as set forth in the Final Memorandum,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect; and,
to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by any Governmental Agency or threatened by
others.
(v) To the knowledge of the Company, after due inquiry,
except as disclosed in the Final Memorandum and except as would not
individually or in the aggregate have a Material Adverse Effect, (i)
the Company and its subsidiaries are each in compliance with all
applicable Environmental Laws, (ii) the Company and its subsidiaries
have all permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance with their
requirements, (iii) there are no pending or threatened Environmental
Claims against the Company or any of its subsidiaries, and (iv) there
are no circumstances with respect to any property or operations of the
Company or any of its subsidiaries that could reasonably be anticipated
to form the basis of an Environmental Claim against the Company or its
subsidiaries.
For purposes hereof, the following terms shall have the
following meanings: "Environmental Laws" means any United States or
Canadian (or other applicable jurisdiction's) federal, provincial,
state, local or municipal statute, law, rule, regulation, ordinance,
code, policy or rule of common law and any judicial or administrative
interpretation thereof including any judicial or administrative order,
consent decree or judgment, relating to the environment, health, safety
or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Governmental Agency.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigations or proceedings
relating in any way to any Environmental Laws.
(w) No Governmental Authorization of or with any
Governmental Agency is required to effect payments of principal,
premium, if any, and interest on the Securities.
(x) No withholding tax imposed under the federal laws of
Canada or the laws of the Province of Ontario will be payable in
respect of the payment or crediting of the commission contemplated by
this Agreement by the Company to the Initial Purchasers for the
purposes of the Income Tax Act (Canada), provided that (i) the Initial
Purchasers deal at arm's length with the Company (as such term is
understood for purposes of the Income Tax Act (Canada); (ii) that such
commission is payable in
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respect of services performed by the Initial Purchasers wholly outside
of Canada in the ordinary course of business carried on by them; and
(iii) the Initial Purchasers are resident in the United States for
purposes of the Income Tax Act (Canada) and the Canada/U.S. Income Tax
Convention.
(y) No goods and services tax imposed under the federal
laws of Canada will be payable by the Company in respect of the payment
of the commissions as contemplated by this Agreement to the Initial
Purchasers, provided that such commission is in respect of services
performed by the Initial Purchasers wholly outside of Canada.
(z) No stamp or other issuance or transfer taxes or
duties and no capital gains, income or other taxes are payable by or on
behalf of the Initial Purchasers to Canada or to any political
subdivision or taxing authority thereof or therein in connection with
the issuance, sale and delivery by the Company of the Securities to or
for the respective accounts of the Initial Purchasers in the manner
contemplated in this Agreement under the Income Tax Act (Canada) in
connection with (i) the issuance, sale and delivery of the Securities
by the Company to or for the account of the Initial Purchasers or (ii)
the sale and delivery of the Securities outside Canada by the Initial
Purchasers in the manner contemplated in the Final Memorandum.
(aa) Deloitte & Touche LLP, who have audited certain
financial statements of (x) the Company and its subsidiaries and (y)
0000-0000 Xxxxxx Inc. (formerly known as Xxxxxx Steel Inc.) and its
subsidiaries ("Xxxxxx"), are independent chartered accountants with
respect to each of the Company and Xxxxxx as required by Canadian
securities legislation and independent auditors within the meaning of
the Act.
(bb) The consolidated financial statements included in the
Final Memorandum present fairly the consolidated financial position of
the Company and its subsidiaries and Xxxxxx, as applicable, as of the
dates indicated and the consolidated results of operations and cash
flows of the Company and its subsidiaries and Xxxxxx, as applicable,
for the periods specified. Such financial statements have been prepared
in conformity with Canadian generally accepted accounting principles
("Canadian GAAP"), the financial statements of the Company and its
subsidiaries have been reconciled to United States generally accepted
accounting principles ("U.S. GAAP") in accordance with Item 18 of Form
20-F under the Exchange Act, and Xxxxxx'x financial statements
(excluding the audited financial statements as at and for the year
ended November 3, 2001) have been reconciled to U.S. GAAP in accordance
with Item 17 of Form 20-F under the Exchange Act, in each case applied
on a consistent basis (except, in the case of interim financial
statements, for normal year-end adjustments) throughout the periods
involved. The selected financial data and all operating data included
in the Final Memorandum present fairly the information shown therein
and have been compiled on a basis consistent with that of the audited
and unaudited consolidated financial statements included in the Final
Memorandum; the pro forma financial statements included in the Final
Memorandum include assumptions that provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions and events described therein, the related pro forma
adjustments give
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appropriate effect to those assumptions, and the pro forma adjustments
reflect the proper application of those adjustments to the historical
financial statement amounts in the pro forma financial statements
included in the Final Memorandum; the pro forma financial statements
included in the Final Memorandum comply as to form in all material
respects with the applicable accounting requirements of Regulation S-X
under the Act; and the pro forma adjustments have been properly applied
to the historical amounts in the compilation of those statements.
(cc) The Company and each of its Significant Subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with Canadian generally accepted accounting principles
and to maintain asset accountability; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(dd) Neither the sale of the Securities by the Company
hereunder nor the use of proceeds therefrom will cause any United
States person participating in the offering or sale of the Securities,
either as Initial Purchaser and/or purchasers of the Securities, to
violate the regulations of the United States Treasury Department set
forth under 31 CFR, Subtitle B, Chapter V, as amended, or any enabling
legislation or executive order relating thereto (the "Sanctions
Regulations").
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each Initial Purchaser, and each Initial
Purchaser agrees, severally and not jointly, to purchase from the Company, at a
purchase price of 100% of the principal amount thereof, plus accrued interest,
if any, from February 20, 2004 to the Closing Date, the principal amount of
Securities set forth opposite such Initial Purchaser's name in Schedule I
hereto. As compensation to the Initial Purchasers for their respective
commitments hereunder, the Company shall pay to the Representative, for the
accounts of the several Initial Purchasers, a commission of 2% of the principal
amount of the Securities purchaser hereunder.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 9:00 A.M., New York City time, on February 20, 2004,
or at such time on such later date (not later than March 6, 2004) as the
Representative shall designate, which date and time may be postponed by
agreement between the Representative and the Company or as provided in Section 9
hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Representative for the respective accounts of the several Initial Purchasers
against payment by the several Initial Purchasers through the Representative of
the purchase price thereof to or upon the order of the Company by wire transfer
payable in same-day funds to the account specified by the Company. Delivery of
the Securities shall be made through the facilities of The Depositary Trust
Company unless the Representative shall otherwise instruct.
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4. Offering by Initial Purchasers. Each Initial
Purchaser, severally and not jointly, represents and warrants to and agrees with
the Company that:
(a) It has not offered or sold, and will not offer or
sell, any Securities except (i) to those it reasonably believes to be
qualified institutional buyers (as defined in Rule 144A under the Act)
and that, in connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of such Securities is
aware that such sale is being made in reliance on Rule 144A or (ii) in
accordance with the restrictions set forth in Exhibit A hereto.
(b) Neither it nor any person acting on its behalf has
made or will make offers or sales of the Securities in the United
States by means of any form of general solicitation or general
advertising (within the meaning of Regulation D) in the United States.
5. Agreements. The Company agrees with each Initial
Purchaser that:
(a) Prior to 4:00 p.m., New York City time, on the New
York Business Day next succeeding the date of this Agreement and from
time to time, the Company will furnish to each Initial Purchaser and to
counsel for the Initial Purchasers, without charge, during the period
referred to in paragraph (c) below, as many copies of the Final
Memorandum and any amendments and supplements thereto as they may
reasonably request.
(b) The Company will not amend or supplement the Final
Memorandum without the prior written consent of the Representative,
which cannot be unreasonably withheld.
(c) If at any time prior to the completion of the sale of
the Securities by the Initial Purchasers (as determined by the
Representative), any event occurs as a result of which the Final
Memorandum, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
should be necessary to amend or supplement the Final Memorandum to
comply with applicable law, the Company promptly (i) will notify the
Representative of any such event; (ii) subject to the requirements of
paragraph (b) of this Section 5, will prepare an amendment or
supplement that will correct such statement or omission or effect such
compliance; and (iii) will supply any supplemented or amended Final
Memorandum to the several Initial Purchasers and counsel for the
Initial Purchaser without charge in such quantities as they may
reasonably request.
(d) The Company will arrange, if necessary, for the
qualification of the Securities for sale by the Initial Purchasers
under the laws of such jurisdictions as the Initial Purchasers may
designate and will maintain such qualifications in effect so long as
required for the sale of the Securities; provided that in no event
shall the Company be obligated to qualify to do business or to qualify
as a foreign or extra-provincial corporation or subject itself to any
taxation that it is not currently subject to in excess of a nominal
amount in any jurisdiction where it is now so qualified or subject, or
to take any
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action that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject. The Company will promptly
advise the Representative of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(e) For a period of one year following the Closing Date,
the Company will not, and will not permit any of its Affiliates to,
resell any Securities that have been acquired by any of them.
(f) Neither the Company, nor any of its Affiliates, nor
any person acting on its or their behalf (other than the Initial
Purchasers, to which no agreement is made) will, directly or
indirectly, make offers or sales of any security, or solicit offers to
buy any security, under circumstances that would require the
registration of the Securities under the Act, other than the Securities
to be exchanged pursuant to the Registration Rights Agreement.
(g) Neither the Company, nor any of its Affiliates, nor
any person acting on its or their behalf (other than the Initial
Purchasers, to which no agreement is made) will engage in any form of
general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the Securities in
the United States.
(h) So long as any of the Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act, the
Company will, unless it becomes subject to and complies with Section 13
or 15(d) of the Exchange Act or becomes exempt from such reporting
requirements pursuant to, and complies with, Rule 12g3-2(b) of the
Exchange Act, provide to each holder of such restricted securities and
to each prospective purchaser (as designated by such holder) of such
restricted securities, upon the request of such holder or prospective
purchaser, any information required to be provided by Rule 144A(d)(4)
under the Act. This covenant is intended to be for the benefit of the
holders, and the prospective purchasers designated by such holders,
from time to time of such restricted securities.
(i) Neither the Company, nor any of its Affiliates, nor
any person acting on its or their behalf will engage in any directed
selling efforts with respect to the Securities, and each of them will
comply with the offering restrictions requirement of Regulation S.
Terms used in this paragraph have the meanings given to them by
Regulation S.
(j) The Company will cooperate with the Representative
and use its commercially reasonable efforts to permit the Securities to
be eligible for clearance and settlement through The Depository Trust
Company.
(k) The Company will not for a period of 90 days
following the Execution Time, without the prior written consent of
Citigroup Global Markets Inc., offer, sell, or otherwise dispose of (or
enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition
or effective economic disposition due to cash settlement or otherwise)
by the Company or
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any Affiliate of the Company or any person in privity with the Company
or any Affiliate of the Company), directly or indirectly, or announce
the offering of, any debt securities issued or guaranteed by the
Company (other than as contemplated by this Agreement and the
Registration Rights Agreement).
(l) The Company will not take, directly or indirectly,
any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(m) The Company agrees to pay the costs and expenses
relating to the following matters: (i) the preparation of the Indenture
and the Registration Rights Agreement, the issuance of the Securities
and the fees of the Trustee; (ii) the preparation, printing or
reproduction of the Preliminary Memorandum and Final Memorandum and
each amendment or supplement to either of them; (iii) the printing (or
reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Preliminary
Memorandum and Final Memorandum, and all amendments or supplements to
either of them, as may, in each case, be reasonably requested for use
in connection with the offering and sale of the Securities; (iv) the
preparation, printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp or transfer taxes
in connection with the original issuance and sale of the Securities;
(v) the printing (or reproduction) and delivery of this Agreement, any
blue sky memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the
Securities; (vi) any registration or qualification of the Securities
for offer and sale under the securities or blue sky laws of the several
states (including filing fees and the reasonable fees and expenses of
counsel for the Initial Purchasers relating to such registration and
qualification and preparation of a blue sky survey); (vii) admitting
the Securities for trading in the PORTAL Market; (viii) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective
purchasers of the Securities; (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including
local and special counsel) for the Company; and (x) all other costs and
expenses incident to the performance by the Company of its obligations
hereunder. It is understood, however, that, except as provided in this
Section and Section 7 and Section 8 of this Agreement, the Initial
Purchasers will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any
offers they may make.
(n) The Company will not, and will cause each of their
subsidiaries not to, use the proceeds of the sale of the Securities to
fund, directly or indirectly, any activities or business with any
entity or individual with respect to which United States persons are
prohibited from doing business under the Sanctions Regulations.
6. Conditions to the Obligations of the Initial
Purchasers. The obligations of the Initial Purchasers to purchase the Securities
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained herein at the Execution
11
Time, the Closing Date and any settlement date pursuant to Section 3 hereof, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Company shall have requested and caused Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, special United States counsel for the
Company, to furnish to the Initial Purchasers its opinion, dated the
Closing Date and addressed to the Initial Purchasers, to the effect
that:
(i) Each of Xxxxxx Metals Corp., Fedmet Corp.,
Sunbelt Trading Co., Inc. (the "Delaware Subsidiaries") and
RMI USA LLC is validly existing in good standing under the
laws of the State of Delaware;
(ii) The shares of capital stock shown by each of
the Delaware Subsidiaries' stock record books as being issued
and outstanding immediately prior to the date hereof have been
duly authorized and validly issued and are fully paid and
non-assessable. Based solely on such counsel's review of the
stock record books of each Delaware Subsidiary, (i) all of the
outstanding capital stock of Xxxxxx Metals Corp. is held of
record by FIL (US) Inc.; (ii) all of the outstanding capital
stock of Fedmet Corp. is held of record by FIL (US) Inc.; and
(iii) all of the outstanding capital stock of Sunbelt Trading
Co., Inc. is held of record by Fedmet Corp.;
(iii) The limited liability company interests
shown by RMI USA LLC Schedule of Capital Contribution of
Members as being issued and outstanding immediately prior to
the date hereof have been duly authorized and validly issued
and are fully paid and non-assessable. Based solely on such
counsel's review of the Schedule of Capital Contribution of
Members of RMI USA LLC, attached as Schedule A to the Limited
Liability Company Agreement of RMI USA LLC, all of the
outstanding limited liability company interest of RMI USA LLC
are held of record by FIL (US) Inc.;
(iv) This Agreement has been duly executed and
delivered by the Company, to the extent such execution and
delivery are governed by the laws of the State of New York;
(v) Each of the Indenture and the Registration
Rights Agreement has been duly executed and delivered by the
Company, to the extent such execution and delivery are
governed by the laws of the State of New York, and is a valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms;
(vi) The Securities have been duly executed by
the Company, to the extent such execution and delivery are
governed by the laws of the State of New York, and when issued
and delivered by the Company against payment therefor in
accordance with the terms of this Agreement and the Indenture,
the Securities will
12
constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms;
(vii) The execution and delivery by the Company of
this Agreement, the Indenture and the Registration Rights
Agreement and the consummation by the Company of the
transactions contemplated thereby, including the issue and
sale of the Securities, will not (i) constitute a violation
of, or a breach or default under, the terms of any agreement
governed by the laws of the State of New, or instrument
specifically identified to such counsel by the Company as
material to the business or financial condition of the Company
pursuant to a certificate attached as a schedule to such
counsel's opinion, or (ii) violate or conflict with, or result
in any contravention of, any Applicable Law or any Applicable
Order. Such counsel need not express any opinion, however, as
to whether the execution, delivery or performance by the
Company of this Agreement, the Indenture and the Registration
Rights Agreement will constitute a violation of, or a breach
or default under, any covenant, restriction or provision with
respect to financial ratios or tests or any aspect of the
financial condition or results of operations of the Company or
any of its respective subsidiaries.
(viii) No Governmental Approval, which has not been
obtained or taken and is not in full force and effect, is
required to authorize, or is required for, the execution or
delivery of this Agreement, the Indenture and the Registration
Rights Agreement by the Company or the consummation by the
Company of the transactions contemplated thereby;
(ix) To such counsel's knowledge, there are no
legal or governmental proceedings to which the Company is a
party or to which any property of the Company is subject that
would have been required to be disclosed pursuant to
Regulation S-K of the Rules and Regulations under the Act had
the Final Memorandum been a Registration Statement under the
Act that are not so disclosed;
(x) The statements in the Final Memorandum under
the caption "Income Tax Considerations - U.S. Federal Income
Tax Considerations", insofar as such statements purport to
summarize certain provisions of the laws referred to therein,
fairly summarize such provisions in all material respects;
(xi) The statements in the Final Memorandum under
the caption "Description of the Notes" other than "Book-Entry
System" (as to which such counsel has not been asked to render
an opinion), insofar as such statements purport to summarize
certain provisions of the documents referred to therein, and
under the captions "Plan of Distribution" and "Exchange Offer;
Registration Rights", insofar as such statements purport to
summarize certain provisions of this Agreement and the
Registration Rights Agreement, respectively, fairly summarize
such provisions in all material respects;
13
(xii) Under the laws of the State of New York
relating to personal jurisdiction, the Company has validly and
irrevocably submitted to the non-exclusive personal
jurisdiction of a New York Court in any action arising out of
or relating to this Agreement, the Registration Rights
Agreement and the Indenture or the transactions contemplated
thereby, has validly and irrevocably waived any objection to
the venue of a proceeding in any such court, and has validly
and irrevocably appointed FIL (US) Inc. as its authorized
agent for the purposes described in Section 15 of this
Agreement, Section 12.13 of the Indenture and Section 17 of
the Registration Rights Agreement; and service of process
effected on such agent in the manner set forth in such
sections will be effective insofar as the law of the State of
New York is concerned to confer valid personal jurisdiction
over the Company;
(xiii) The Company is not required to seek an order
permitting registration under the Investment Company Act of
1940; and
(xiv) The offer, sale and delivery of the
Securities to the Initial Purchasers in the manner
contemplated by this Agreement and the Final Memorandum and
the initial resale of the Securities by the Initial Purchasers
in the manner contemplated in this Agreement and the Final
Memorandum, do not require registration under the Act or
qualification of the Indenture under the Trust Indenture Act,
it being understood that such counsel does not express any
opinion as to any subsequent reoffer or resale of any
Security, and such counsel may note that the Indenture will be
required to be qualified under the Trust Indenture Act in
connection with the registration contemplated by the
Registration Rights Agreement.
As used herein, (i) "Applicable Laws" means those laws, rules
and regulations of the State of New York and the federal laws, rules and
regulations of the United States of America, in each case that, in such
counsel's experience, are normally applicable to transactions of the type
contemplated by this Agreement (other than the United States federal securities
laws, state securities or blue sky laws, antifraud laws and the rules and
regulations of the National Association of Securities Dealers, Inc.), but
without our having made any special investigation as to the applicability of any
specific law, rule or regulation; (ii) "Governmental Authorities" means any
court, regulatory body, administrative agency or governmental body of the State
of New York or the United States of America having jurisdiction over the Company
under Applicable Laws; (iii) "Governmental Approval" means any consent,
approval, license, authorization or validation of, or filing, qualification or
registration with, any Governmental Authority required to be made or obtained by
the Company pursuant to Applicable Laws, other than any consent, approval,
license, authorization, validation, filing, qualification or registration that
may have become applicable as a result of the involvement of any party (other
than the Company) in the transactions contemplated by this Agreement or because
of such parties' legal or regulatory status or because of any other facts
specifically pertaining to such parties; and (iv) "Applicable Orders" means
those judgments, orders or decrees identified to such counsel by the Company.
Such counsel shall also state that it has no reason to believe
that at the Execution Time and on the Closing Date the Final Memorandum
contained or contains an untrue statement
14
of a material fact or omitted or omits 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 (except that in each case, such counsel
need not express any view as to the financial statements, financial schedules
and other financial data included therein).
(b) The Company shall have requested and caused Davies
Xxxx Xxxxxxxx & Xxxxxxxx LLP, Canadian counsel for the Company, to
furnish to the Initial Purchasers its opinion, dated the Closing Date
and addressed to the Initial Purchasers, to the effect that:
(i) The Company is a corporation, validly
existing under the Canada Business Corporations Act with all
necessary corporate power and authority to own or lease its
properties and conduct its business as described in the Final
Memorandum;
(ii) Thunder Bay Terminals Ltd. is a corporation
validly existing under the laws of the jurisdiction of its
incorporation; and all of the issued shares of such subsidiary
have been duly and validly authorized and issued, are fully
paid and non-assessable (except for directors' qualifying
shares) and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims
(such counsel being entitled to rely in respect of matters of
fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that they
believe that both the Initial Purchasers and they are
justified in relying upon such opinions and certificates);
(iii) The Company is registered as an
extraprovincial corporation in each province of Canada and is
qualified as a corporation to carry on business in each such
province;
(iv) Except for those matters disclosed in the
Final Memorandum, such counsel has not been retained to
represent the Company in respect of any legal or regulatory
proceeding or investigation to which the Company is a party
before or by any federal, provincial, state, municipality or
other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign and such
counsel does not know of any other legal or governmental
proceedings pending, threatened or contemplated to which the
Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the
subject which are material to the Company and its
subsidiaries, taken as a whole, which are not adequately
described in the Final Memorandum. Such counsel may state that
its opinion in this paragraph is based upon inquiries made of
such members of its firm who typically deal with the Company's
matters, supported by an officers' certificate with respect to
the Final Memorandum disclosure;
(v) This Agreement has been duly authorized,
executed and delivered by the Company;
15
(vi) The Securities have been duly authorized,
executed and delivered by the Company;
(vii) The Indenture has been duly authorized,
executed and delivered by the Company;
(viii) The Registration Rights Agreement has been
duly authorized, executed and delivered by the Company;
(ix) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture, the Registration Rights Agreement
or this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument governed by the laws of the Province of Ontario and
the federal laws of Canada applicable therein (collectively,
"Ontario Law") to which the Company or any subsidiary is a
party or by which either of them is bound or to which any of
their respective property or assets is subject, in each case
that are identified on a schedule to such counsel's opinion,
nor will such actions result in any violation of the
provisions of the Certificate of Incorporation or Bylaws of
the Company or any Requirements of Law of the Province of
Ontario or Canada or any judgment, order or decree of any
government, governmental instrumentality or court located in
the Province of Ontario having jurisdiction over the Company
or any of its properties or assets ("Canadian Orders"). Such
opinion expressed may be based on such counsel's review of
those Requirements of Law which are normally applicable to
transactions of the type provided for in this Agreement, but
without such counsel having made any special investigation
concerning any other Requirements of Law of the Province of
Ontario or Canada, and those Canadian Orders specifically
identified to such counsel by the Company pursuant to a
certificate attached as a schedule to such counsel's opinion,
as being Canadian Orders to which the Company or its
subsidiaries is subject;
(x) The statements set forth in the Final
Memorandum under the captions "Description of Notes -
Enforceability of Judgments", "Description of Other
Indebtedness" and "Income Tax Considerations--Canadian
Federal Income Tax Considerations", insofar as they purport to
describe the provisions of the laws and documents referred to
therein, fairly summarize the information disclosed therein in
all material respects;
(xi) The Indenture and the issuance of the
Securities thereunder are exempt from Part VIII of the Canada
Business Corporations Act pursuant to an exemption order
obtained under the provisions of the Canada Business
Corporations Act and no other order, consent, permit,
approval, authorization, registration, recording or filing is
required under the federal laws of Canada or the laws of the
Province of Ontario in connection with the authorization,
execution, delivery and performance by the Company of this
Agreement, the Registration
16
Rights Agreement, the Indenture and the Securities or is
necessary in order to preserve or protect the validity or
enforceability of the Indenture or the Securities issued
thereunder;
(xii) The form of global certificate representing
the Securities has been duly approved and adopted by the
Company and complies in all material respects with all
applicable statutory requirements and with any applicable
requirements of the constating documents of the Company;
(xiii) In any proceeding brought before a court of
competent jurisdiction in the Province of Ontario (an "Ontario
Court") for the enforcement of this Agreement, the
Registration Rights Agreement, the Indenture or the
Securities, the laws of the State of New York ("New York Law")
would, be applied by such Ontario Court, in accordance with
the express choice of New York Law as the governing law of
this Agreement in Section 14 hereof, the Registration Rights
Agreement in Section 17 thereof, or the Indenture in Section
12.13 thereof, to all issues which under the conflict of laws
rules of the Province of Ontario are to be determined in
accordance with the proper or governing law of a contract,
provided that:
(a) such choice of New York Law is bona fide and
legal and there is no reason for avoiding
the choice on the grounds of public policy,
as such criteria are interpreted under
Ontario conflict of laws rules; and
(b) in any such proceeding such Ontario Court:
a. will not take judicial notice of
the provisions of New York Law and
will only apply such provisions to
the extent that they are proven to
its satisfaction by expert
testimony;
b. will apply Ontario Law that under
Ontario Law would be characterized
as procedural and will not apply
any New York Law that under Ontario
Law would be characterized as
procedural;
c. will apply provisions of Ontario
Law that have overriding effect
(that is, laws that an Ontario
Court is required to apply
notwithstanding the choice of New
York Law as the governing law of
this Agreement, the Registration
Rights Agreement and the
Indenture), as interpreted under
Ontario Law, provided, however that
assuming that the meaning that
would be given to the terms used in
this Agreement, the Registration
Rights Agreement and the Indenture
under New York Law would be the
same as the meaning given to such
terms under Ontario Law, none of
the provisions of this Agreement,
the Registration Rights Agreement
and the
17
Indenture would violate any such
provisions of Ontario Law;
d. will not apply any New York Law
that under Ontario Law would be
characterized as a revenue,
expropriatory, penal or other
public law;
e. will not enforce the performance of
any obligation provided for in this
Agreement, the Registration Rights
Agreement and the Indenture if such
performance is illegal under the
laws of any jurisdiction in which
such obligation is to be performed;
and
f. will not apply New York Law to the
extent that its application would
be contrary to public policy, as
such term is interpreted under
Ontario Law ("Public Policy")
provided, however, that assuming
that the meaning that would be
given to the terms used in this
Agreement, the Registration Rights
Agreement and the Indenture under
New York Law would be the same as
the meaning given to such terms
under Ontario Law, none of the
provisions of this Agreement, the
Registration Rights Agreement or
the Indenture would violate Public
Policy;
(xiv) In such counsel's opinion, there are no
reasons under Ontario Law for avoiding the choice of New York
law to govern this Agreement, the Registration Rights
Agreement, the Indenture and the Securities.
(xv) An Ontario Court would give a judgment in
Canadian dollars at an exchange rate determined in accordance
with the Courts of Justice Act (Ontario) based upon a final
and conclusive in personam judgment for a sum certain,
obtained in New York Court against the Company with respect to
a claim pursuant to this Agreement, the Registration Rights
Agreement, the Indenture or the Securities;
(a) the New York Court had jurisdiction over the
Company as recognized under Ontario Law for
purposes of enforcement of foreign judgments
(submission to the non-exclusive
jurisdiction of the New York Court by the
Company and appointment by the Company of an
agent for service of process pursuant to
Section 15 of this Agreement, Section 12.13
the Registration Rights Agreement and
Section 17 of the Indenture would be
recognized by such Ontario Court as
conferring jurisdiction on the New York
Court);
(b) such New York Judgment was:
18
(i) not obtained by fraud, or in any
manner contrary to the principles
of natural justice;
(ii) not for a claim in respect of any
law of any jurisdiction which under
Ontario Law would be characterized
as a revenue, expropriatory, penal,
public or similar law;
(iii) not contrary to Public Policy, or
contrary to any order made by the
Attorney General of Canada under
the Foreign Extraterritorial
Measures Act (Canada) or by the
Competition Tribunal under the
Competition Act (Canada) in respect
of certain judgments referred to
therein; and
(iv) subsisting and unsatisfied and not
void or voidable under New York
Law; and
(c) the action to enforce such New York Judgment
is commenced within the relevant limitation
period under applicable law;
provided that:
(a)such Ontario Court has discretion to stay or
decline to hear an action on the New York
Judgment if the New York Judgment is under
appeal, or there is another subsisting
judgment in Ontario, New York or any other
jurisdiction relating to the same cause of
action as the New York Judgment; and
(b) an action in Ontario on the New York Judgment
may be affected by bankruptcy, insolvency or
other similar laws affecting the enforcement
of creditors' rights generally.
(xvi) No withholding tax imposed under the federal
laws of Canada or the laws of the Province of Ontario will be
payable in respect of the payment or crediting of the
commissions contemplated by this Agreement by the Company to
the Initial Purchasers for the purposes of the Income Tax Act
(Canada), provided that (i) the Initial Purchasers deal at
arm's length with the Company (as such term is understood for
purposes of the Income Tax Act (Canada)), (ii) that such
commissions are payable in respect of services performed by
the Initial Purchasers wholly outside of Canada in the
ordinary course of business carried on by them; and (iii) the
Initial Purchasers are resident in the United States for
purposes of the Income Tax Act (Canada) and the Canada/U.S.
Income Tax Convention;
(xvii) No goods and services tax imposed under the
federal laws of Canada or sales taxes under Ontario Law will
be payable by the Company or collectable by the Initial
Purchasers in respect of the payment of the commissions as
contemplated by this Agreement to the Initial Purchasers,
provided that any such
19
commissions are in respect of services performed by the
Initial Purchasers wholly outside of Canada; and
(xviii) No stamp or other issuance or transfer
charges or duties and no capital gains, income or other taxes
are payable by or on behalf of the Initial Purchasers to
Canada under the Income Tax Act (Canada) in connection with
(A) the issuance, sale and delivery of the Securities by the
Company to or for the account of the Initial Purchasers or (B)
the sale and delivery of the Securities outside Canada by the
Initial Purchasers in the manner contemplated herein and in
the Final Memorandum, provided that such Initial Purchasers
are for purposes of the Income Tax Act (Canada) and at all
relevant times, not resident in Canada, deal at arm's length
with the Company and do not use or hold, and are not deemed to
use or hold, the Securities for the purpose of carrying on
business in Canada.
(c) The Initial Purchasers shall have received from
Shearman & Sterling LLP, United States counsel for the Initial
Purchasers, such opinion or opinions, dated the Closing Date and
addressed to the Initial Purchasers, with respect to the issuance and
sale of the Securities, the Indenture, the Registration Rights
Agreement, the Final Memorandum (as amended or supplemented at the
Closing Date) and other related matters as the Representative may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(d) The Company shall have furnished to the Initial
Purchasers a certificate of the Company, signed by one of the Chief
Executive Officer or the Chief Financial Officer and one other officer
of the Company, dated the Closing Date, to the effect that:
(i) the representations and warranties of the
Company in this Agreement are true and correct on and as of
the Closing Date with the same effect as if made on the
Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the Closing
Date; and
(ii) (1) neither the Company nor any of its
Significant Subsidiaries shall have sustained since the date
of the latest audited financial statements included in the
Final Memorandum any material loss or interference with its
business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Final Memorandum, and
(2) since the respective dates as of which information is
given in the Final Memorandum there shall not have been any
change in the share capital or long-term debt of the Company,
on a consolidated basis, except for (A) the issuance of the
Securities and the application of the net proceeds therefrom,
and (B) the exercise of stock options under the Company's
stock option plan, or any change, or any development involving
a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or
results of
20
operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the
Final Memorandum.
(e) At the Execution Time and at the Closing Date, the
Company shall have requested and caused Deloitte & Touche LLP to
furnish to the Initial Purchasers letters, dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representative, confirming that they are
independent chartered accountants as required by Canadian securities
legislation and independent auditors within the meaning of the Act,
that they have performed a review of the unaudited interim financial
information of Xxxxxx as at and for the twenty-six week period ended
May 3, 2003, and stating in effect that:
(i) in their opinion the audited financial
statements of the Company and the audited financial statements
of Xxxxxx (excluding the audited financial statements as at
and for the year ended November 3, 2001) included in the Final
Memorandum and reported on by them comply in form in all
material respects with the applicable accounting requirements
of the Act;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company;
their limited review in accordance with the standards
established under Statement on Auditing Standards No. 100 of
the unaudited interim financial information as at and for the
twenty-six week period ended May 2, 2003 included in the Final
Memorandum; carrying out certain specified procedures (but not
an audit in accordance with Canadian generally accepted
auditing standards) which would not necessarily reveal matters
of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
shareholders and directors and committees thereof; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters as to
transactions and events subsequent to December 31, 2003,
nothing came to their attention which caused them to believe
that:
(1) the unaudited financial statements
of Xxxxxx as at and for the 26 weeks ended May 3,
2003 included in the Final Memorandum do not comply
in form in all material respects with applicable
accounting requirements and with the published rules
and regulations of the Commission; and said unaudited
financial statements are not in conformity with
Canadian GAAP applied on a basis substantially
consistent with that of the audited financial
statements of Xxxxxx included in the Final
Memorandum; or
(2) with respect to the period
subsequent to December 31, 2003, there were any
changes, at a specified date not more than five days
prior to the date of the letter, in the consolidated
capital stock of the Company (other than issuances of
capital stock upon exercise of options which were
outstanding as at December 31, 2003), any increase in
the consolidated long-term debt of the Company and
its subsidiaries, or any
21
decreases in the consolidated net current assets or
shareholders' equity of the Company and its
subsidiaries as compared with the amounts shown on
the December 31, 2003 audited consolidated balance
sheet of the Company included in the Final
Memorandum, or for the period from January 1, 2004 to
such specified date there were any decreases, as
compared with the corresponding period in the
preceding year in consolidated revenues or total or
per share amounts of consolidated net earnings of the
Company and its subsidiaries, except in all instances
for changes or decreases disclosed in the Final
Memorandum.
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Final
Memorandum, agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation.
(iv) on the basis of a reading of the unaudited
pro forma financial statements of the Company for the year
ended December 31, 2003 (the "pro forma financial statements")
included in the Final Memorandum; carrying out certain
specified procedures; inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters; and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the pro forma financial statements, nothing came to
their attention which caused them to believe that the pro
forma financial statements do not comply in form in all
material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
References to the Final Memorandum in this Section 6(d)
include any amendment or supplement thereto at the date of the
applicable letter.
(f) The Securities shall be eligible for clearance and
settlement through The Depository Trust Company, provided that the
Company shall not be responsible if the Securities are not so eligible
as a result of the failure by the Initial Purchasers to provide
information to The Depository Trust Company required to be so provided
by The Depository Trust Company.
(g) (i) Neither the Company nor any of its Significant
Subsidiaries shall have sustained since the date of the latest audited
financial statements included in the Final Memorandum any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Final Memorandum, and (ii)
since the respective dates as of which information is given in the
Final Memorandum there shall not have been any change in the share
capital or long-term debt of the Company, on a consolidated basis,
except for
22
(A) the issuance of the Securities and the application of the net
proceeds therefrom, and (B) the exercise of stock options under the
Company's stock option plan, or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Final Memorandum,
the effect of which, in any such case described in clause (i) or (ii),
is in the judgment of the Representative so material and adverse as to
make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in the
manner contemplated in the Final Memorandum.
(h) On or after the date hereof (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities by
any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act, and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
(i) The Company shall have complied with the provisions
of Section 5(a) hereof with respect to the furnishing of Final
Memorandums on the New York Business Day next succeeding the date of
this Agreement.
(j) Prior to the Closing Date, the Company shall furnish
to the Initial Purchasers a written consent from the lenders under the
Credit Agreement dated December 19, 1995, among the Company and the
lenders named therein and such consent shall be (x) satisfactory to the
Representative and (y) in full force and effect as of the Closing Date.
(k) Prior to the Closing Date, the Company shall have
furnished to the Representative such further information, certificates
and documents as the Representative may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representative and counsel for the
Initial Purchasers, this Agreement and all obligations of the Initial Purchasers
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representative. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will
be delivered at the office of Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, 1 First
Canadian Place, 44th Floor, Toronto, Ontario M5X 1B1, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Initial Purchasers set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10
23
hereof or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Initial Purchasers, the Company
will reimburse the Initial Purchasers severally through the Representative on
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company
will indemnify and hold harmless each Initial Purchaser against any losses,
claims, damages or liabilities, joint or several, to which such Initial
Purchaser may become subject, under Canadian securities laws, the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Memorandum, the
Final Memorandum, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Initial Purchaser for any legal or other
expenses reasonably incurred by such Initial Purchaser in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Memorandum, the Final Memorandum or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Initial Purchaser
through the Representative expressly for use therein.
(b) Each Initial Purchaser will indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under Canadian securities laws, the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Memorandum, the
Final Memorandum, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
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 Memorandum, the Final Memorandum or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such Initial Purchaser through the Representative expressly
for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under subsection (a) or (b) hereof. In case
any such action shall be brought
24
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Initial
Purchasers on the other from the offering of the Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Initial Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Initial Purchasers on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Securities (before deducting expenses) received by the Company bear to the total
commissions received by the Initial Purchasers, in each case as set forth in
this Agreement. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Initial Purchasers on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Initial Purchasers agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation even if the 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 above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other
25
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities resold by it in the initial placement of such Securities were
offered to investors exceeds the amount of any damages which such Initial
Purchaser has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 8
shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Initial Purchaser within the meaning of the Act; and the
obligations of the Initial Purchasers under this Section 8 shall be in addition
to any liability which the respective Initial Purchasers may otherwise have and
shall extend, upon the same terms and conditions, to each officer and director
of the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. Default by an Initial Purchaser. If any one or more
Initial Purchasers shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Initial Purchaser hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Initial Purchasers shall be
obligated severally to take up and pay for (in the respective proportions which
the principal amount of Securities set forth opposite their names in Schedule I
hereto bears to the aggregate principal amount of Securities set forth opposite
the names of all the remaining Initial Purchasers) the Securities which the
defaulting Initial Purchaser or Initial Purchasers agreed but failed to
purchase; provided, however, that in the event that the aggregate principal
amount of Securities which the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Securities set forth in Schedule I hereto, the remaining
Initial Purchasers shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the Securities, and if such nondefaulting
Initial Purchasers do not purchase all the Securities, this Agreement will
terminate without liability to any nondefaulting Initial Purchaser or the
Company. In the event of a default by any Initial Purchaser as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representative shall determine in order that the
required changes in the Final Memorandum or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Initial Purchaser of its liability, if any, to the Company or any
nondefaulting Initial Purchaser for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representative, by notice given to
the Company prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the Company's common shares shall have been
suspended by the Commission, the Ontario Securities Commission, any provincial
or territorial securities commission in Canada or the Toronto Stock Exchange or
trading in securities generally on the New York Stock Exchange, the Toronto
Stock
26
Exchange or the Nasdaq National Market shall have been suspended or limited or
minimum prices shall have been established on any of such Exchanges, (ii) a
banking moratorium shall have been declared either by authorities in the United
States, Canada or New York, (iii) a change or development involving a
prospective material change in Canadian taxation affecting the Securities or the
transfer thereof or the imposition of exchange controls by the United States or
Canada, or (iv) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States or Canada of a national emergency
or war, or other calamity or crisis the effect of which on financial markets is
such as to make it, in the sole judgment of the Representative, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Memorandum (exclusive of any additional supplement
thereto).
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the 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 the Initial
Purchasers or the Company or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representative, will
be mailed, delivered or telefaxed to the Citigroup Global Markets Inc. General
Counsel (fax no.: (000) 000-0000) and confirmed to the General Counsel,
Citigroup Global Markets Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel; or, if sent to the Company, will be mailed,
delivered or telefaxed and confirmed to it at Xxxxx 000- 0000 Xxxxxxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxx, X0X 0X0, attention Assistant Secretary.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in Section 8
hereof, and, except as expressly set forth in Section 5(h) hereof, no other
person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Agent for Process of Service. The Company irrevocably
(i) agrees that any legal suit, action or proceeding against the Company brought
by any Initial Purchaser or by any person who controls any Initial Purchaser
arising out of or based upon this Agreement or the transactions contemplated
hereby may be instituted in any New York Court, (ii) waives, to the fullest
extent it may effectively do so, any objection which it may now or hereafter
have to the laying of venue of any such proceeding and (iii) submits to the
non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company has appointed FIL (US) Inc., x/x XX Xxxxxxxxxxx, Xxxxx
000, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx 00000, as its authorized agent
(the "Authorized Agent") upon whom process may be served in any such action
arising out of or based on the Purchase Agreement or the transactions
contemplated thereby which may be instituted in any New York Court by any
Initial Purchaser or by any person who controls any
27
Initial Purchaser, expressly consents to the jurisdiction of any such court in
respect of any such action, and waives any other requirements of or objections
to personal jurisdiction with respect thereto. Such appointment shall be
irrevocable. The Company represents and warrants that the Authorized Agent has
agreed to act as such agent for service of process and agrees to take any and
all action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice of
such service to the Company shall be deemed, in every respect, effective service
of process upon the Company.
To the extent that the Company has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, it
hereby irrevocably waives such immunity in respect of its obligation under this
Agreement, to the extent permitted by law.
The provisions of this Section 15 shall survive any
termination of this Agreement, in whole or in part.
16. Currency. In respect of any judgment or order given
or made for any amount due hereunder that is expressed and paid in a currency
(the "judgment currency") other than United States dollars, the Company will
indemnify each Initial Purchaser against any loss incurred by such Initial
Purchaser as a result of any variation as between (i) the rate of exchange at
which the United States dollar amount is converted into the judgment currency
for the purpose of such judgment or order and (ii) the rate of exchange at which
an Initial Purchaser is able to purchase United States dollars with the amount
of judgment currency actually received by such Initial Purchaser. The foregoing
indemnity shall constitute a separate and independent obligation of the Company
and shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "rate of exchange" shall include any premiums and
costs of exchange payable in connection with the purchase of or conversion into
United States dollars.
17. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same instrument.
18. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
19. Definitions. The terms which follow, when used in
this Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in The City of New York.
28
"Commission" shall mean the Securities and Exchange
Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean, the date and time that this
Agreement is executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"New York Court" shall mean any federal or state court sitting
in the Borough of Manhattan in the City of New York.
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission promulgated
thereunder.
29
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
between the Company and the several Initial Purchasers.
Very truly yours,
Xxxxxx Metals Inc.
By /s/ Xxxxxx X. Xxxxxx, Xx.
----------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President and CEO
By /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive VP & CFO
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
For itself and the other several Initial Purchasers named in Schedule I to the
foregoing Agreement.
SCHEDULE I
Principal Amount of
Securities
Initial Purchasers to Be Purchased
------------------ --------------------
Citigroup Global Markets Inc........................................... US$ 87,500,000
Banc One Capital Markets, Inc.......................................... 26,250,000
RBC Dominion Securities Corporation.................................... 26,250,000
Scotia Capital (USA) Inc............................................... 26,250,000
Comerica Securities, Inc............................................... 4,375,000
NBF Securities (USA) Corp.............................................. 4,375,000
--------------
Total......................................................... US$175,000,000
==============
Sch-I
SCHEDULE II
SIGNIFICANT SUBSIDIARIES
1. Thunder Bay Terminals Ltd. (Ontario)
2. FIL (US) Inc. (Alaska)
3. RMI USA LLC (Delaware)
4. Xxxxxx Metals Corp. (Delaware)
5. Fedmet Corp. (Delaware)
6. Sunbelt Group, Inc. (Texas)
7. Sunbelt Trading Co., Inc. (Delaware)
Sch-II
EXHIBIT A
Selling Restrictions for Offers and
Sales outside the United States
(1) (a) The Securities have not been and will not be
registered under the Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons except in accordance with
Regulation S under the Act or pursuant to an exemption from the registration
requirements of the Act. Each Initial Purchaser represents and agrees that,
except as otherwise permitted by Section 4(a)(i) of the Agreement to which this
is an exhibit, it has offered and sold the Securities, and will offer and sell
the Securities only in accordance with Rule 903 of Regulation S under the Act.
Accordingly, each Initial Purchaser represents and agrees that neither it, nor
any of its Affiliates nor any person acting on its or their behalf has engaged
or will engage in any directed selling efforts with respect to the Securities,
and that it and they have complied and will comply with the offering
restrictions requirement of Regulation S.
(b) Each Initial Purchaser also represents and agrees
that it has not entered and will not enter into any contractual arrangement with
any distributor with respect to the distribution of the Securities, except with
its Affiliates or with the prior written consent of the Company.
(c) Terms used in this section have the meanings given to
them by Regulation S.
(2) Each Initial Purchaser represents and agrees that (i)
it has not offered or sold and, prior to the expiry of a period of six months
from the Closing Date, will not offer or sell any Securities to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995; (ii) it
has only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial Services and Markets
Act 2000 (the "FSMA")) received by it in connection with the issue or sale of
any Securities in circumstances in which Section 21(1) of the FSMA does not
apply to the Company; and (iii) it has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by it in
relation to any Securities in, from or otherwise involving the United Kingdom.
A-1
