EXHIBIT 1.1
EXECUTION COPY
$150,000,000
COMMERCIAL VEHICLE GROUP, INC.
8% SENIOR NOTES DUE 2013
PURCHASE AGREEMENT
June 29, 2005
CREDIT SUISSE FIRST BOSTON LLC
As Representative of the several Purchasers,
c/o Credit Suisse First Boston LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Commercial Vehicle Group, Inc., a Delaware corporation
(the "COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"PURCHASERS") U.S. $150,000,000 principal amount of its 8% Senior Notes due 2013
("OFFERED SECURITIES") to be issued under an indenture, to be dated as of July
6, 2005 (the "INDENTURE"), among the Company, the Guarantors (as defined below)
and U.S. Bank National Association, as trustee (the "TRUSTEE"). The United
States Securities Act of 1933, as amended, is herein referred to as the
"SECURITIES ACT." The United States Securities Exchange Act of 1934, as amended,
is herein referred to as the "EXCHANGE ACT." The Offered Securities will be
unconditionally guaranteed (the "GUARANTEES") on a senior unsecured basis by
each of the entities listed on Schedule B hereto (each a "GUARANTOR" and
together, the "GUARANTORS").
Concurrently with the issuance of the Offered Securities, the Company will
obtain an amendment to the Credit Agreement by and among, the Company, certain
of its subsidiaries, the lenders referred to therein, U.S. Bank National
Association, as administrative agent, and Comerica Bank, as syndication agent,
dated as of August 10, 2004, in order to permit the issuance of the Offered
Securities and the use of the proceeds therefrom (the "CREDIT AGREEMENT
AMENDMENT").
The holders of the Offered Securities will be entitled to the benefits of
a Registration Rights Agreement to be dated the Closing Date (as defined below)
among the Company, the Guarantors and the Representative (the "REGISTRATION
RIGHTS AGREEMENT"), pursuant to which the Company and the Guarantors agree to
file (i) a registration statement with the Securities and Exchange Commission
(the "COMMISSION") with respect to a proposed offer to the holders of the
Offered Securities, to issue and deliver to such holders, in exchange for the
Offered Securities, a like aggregate principal amount of registered debt
securities (the "EXCHANGE SECURITIES") of the Company issued under the Indenture
and identical in all material respect to the Offered Securities (except for the
transfer restrictions relating to the Offered Securities), and (ii) a shelf
registration statement pursuant to Rule 415 under the Securities Act under
certain circumstances specified in the Registration Rights Agreement.
The Company and the Guarantors hereby agree with the several Purchasers as
follows:
2. Representations and Warranties of the Company and the Guarantors. Each
of the Company and the Guarantors, jointly and severally, represents and
warrants to, and agrees with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities to be offered by the Purchasers have
been prepared by the Company. Such preliminary offering circular
(the "PRELIMINARY OFFERING CIRCULAR") and offering circular (the "OFFERING
CIRCULAR"), as supplemented as of the date of this Agreement, are
hereinafter collectively referred to as the "OFFERING DOCUMENT". On the
date of this Agreement, the Offering Document does not, and on the Closing
Date (as defined below), the Offering Document will not, include any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Offering
Document based upon written information furnished to the Company by any
Purchaser through Credit Suisse First Boston LLC ("CSFB") specifically for
use therein, it being understood and agreed that the only such information
is that described as such in Section 7(b) hereof.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Document; and the
Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except where the failure to be so qualified would not have a material
adverse effect on the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries, taken as a
whole (a "MATERIAL ADVERSE EFFECT").
(c) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority to
own or lease its properties and conduct its business as described in the
Offering Document; and each subsidiary of the Company is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except where the failure to
be so qualified would not have a Material Adverse Effect; all of the
issued and outstanding capital stock of each subsidiary of the Company has
been duly authorized and validly issued and, in the case of each
subsidiary that is organized as a corporation, is fully paid and
nonassessable; all capital contributions with respect to the outstanding
membership interests of each subsidiary of the Company that is a limited
liability company have been made to such subsidiary; and the capital stock
of each subsidiary owned by the Company, directly or through subsidiaries,
is owned free from liens, encumbrances and defects (other than transfer
restrictions imposed under applicable securities laws and liens granted to
the lenders under the Revolving Credit and Term Loan Agreement dated as of
August 10, 2004, among the Company, certain of its subsidiaries, U.S. Bank
National Association, as administrative agent, Comerica Bank, as
syndication agent, and the lenders party thereto, as amended (the "CREDIT
AGREEMENT").
(d) The Indenture has been duly authorized by the Company and the
Guarantors; the Offered Securities have been duly authorized by the
Company; and when the Offered Securities are delivered and paid for
pursuant to this Agreement on the Closing Date, the Indenture will have
been duly executed and delivered by the Company and the Guarantors, such
Offered Securities will have been duly executed, issued and delivered by
the Company, the Indenture and the Offered Securities will conform to the
description thereof contained in the Offering Circular and the Indenture
(assuming due authorization, execution and delivery by the Trustee) and
such Offered Securities (assuming due authentication and delivery by the
Trustee) will constitute valid and legally binding obligations of the
Company and the Guarantors, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(e) The Exchange Securities have been duly authorized by the Company
and the Guarantors; and when the Exchange Securities are issued, executed,
authenticated and delivered in accordance with the terms of the Registered
Exchange Offer (as defined in the Registration Rights Agreement) and the
Indenture, the Exchange Securities will be entitled to the benefits of the
Indenture and will be the valid and legally binding obligations of the
Company and the Guarantors, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
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(f) The Guarantee of the Offered Securities by each of the
Guarantors has been duly authorized by each Guarantor. The Guarantee of
each Guarantor of the Offered Securities, when issued, will conform to the
description thereof contained in the Offering Circular. When the Offered
Securities have been issued, executed, authenticated and delivered in
accordance with the terms of this Agreement and the Indenture, the
Guarantee of each Guarantor with respect to such Offered Securities will
constitute a valid and legally binding obligation of such Guarantor,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(g) The Guarantee of the Exchange Securities by each of the
Guarantors (each an "Exchange Security Guarantee" and together, the
"Exchange Security Guarantees") has been duly authorized by each
Guarantor. When the Exchange Security Guarantees have been issued,
executed and authenticated in accordance with the terms of the Registered
Exchange Offer and the Indenture, the Exchange Security Guarantee of each
Guarantor will constitute a valid and legally binding obligation of such
Guarantor, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(h) This Agreement has been duly authorized, executed and delivered
by the Company and the Guarantors.
(i) The Registration Rights Agreement has been duly authorized by
the Company and each of the Guarantors and, on the Closing Date, will have
been duly executed and delivered by the Company and each of the
Guarantors. When the Registration Rights Agreement has been duly executed
and delivered by the Company and the Guarantors, and assuming due
authorization, execution and delivery of such agreement by the Purchasers,
it will constitute the valid and legally binding agreement of the Company
and each of the Guarantors, enforceable against the Company and the
Guarantors in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles. On the Closing Date, the Registration
Rights Agreement will conform as to legal matters to the description
thereof in the Offering Circular.
(j) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company or any
Guarantor and any person that would give rise to a valid claim against the
Company or any Guarantor or any Purchaser for a brokerage commission,
finder's fee or other like payment in connection with this offering.
(k) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement in connection with the issuance and sale of
the Offered Securities by the Company or the issuance of the Guarantees by
the Guarantors, except for the order of the Commission declaring the
Exchange Offer Registration Statement or the Shelf Registration Statement
(each as defined in the Registration Rights Agreement) effective and,
except for such consents, approvals, authorizations, orders or filings (i)
that shall have been obtained or made prior to the Closing Date and (ii)
as may be required under applicable state securities laws.
(l) The execution, delivery and performance of the Indenture, this
Agreement, the Registration Rights Agreement, and the Credit Agreement
Amendment and the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, (a) any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties, or (b) any agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or
any such subsidiary is subject, or (c) the charter or by-laws of the
Company or any such subsidiary, other than, in the case of (a) and (b),
conflicts or
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breaches that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
(m) Except as disclosed in the Offering Document, the Company and
its subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects the enforcement of which would reasonably
be expected to have a Material Adverse Effect; and except as disclosed in
the Offering Document, the Company and its subsidiaries hold any leased
real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be made
thereof by them and no material default has occurred or is continuing
under any material lease to which the Company or any of its subsidiaries
is a party.
(n) The Company and its subsidiaries possess adequate certificates,
authorizations or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them, except for
such certificates, authorizations or permits the absence of which,
individually or in the aggregate, would not have a Material Adverse Effect
and have not received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(o) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
would reasonably be expected to have a Material Adverse Effect.
(p) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate reasonably be
expected to have a Material Adverse Effect.
(q) Except as disclosed in the Offering Document, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body or
any court, domestic or foreign, relating to the use, disposal or release
of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating to
any environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(r) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to perform its
obligations under the Indenture, this Agreement or the Registration Rights
Agreement, or which are otherwise material in the context of the sale of
the Offered Securities; and, to the Company's knowledge, no such actions,
suits or proceedings are threatened or contemplated.
(s) The financial statements, together with related notes, included
in the Offering Document present fairly in all material respects the
financial position of the Company and its consolidated subsidiaries as of
the dates shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
accordance with the generally accepted accounting principles in the United
States applied on a consistent basis; the schedules included in the
Offering
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Document present fairly the information required to be stated therein, and
the assumptions used in preparing the pro forma financial statements
included in the Offering Document provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those adjustments
to the corresponding financial statement amounts.
(t) Each of the Company and its consolidated subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (a) transactions are executed in accordance with
management's general or specific authorizations; (b) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (c) access to assets is permitted only in accordance
with management's general or specific authorization; and (d) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(u) Except as disclosed in the Offering Document, since the date of
the latest audited financial statements included in the Offering Document
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and, except as disclosed in
or contemplated by the Offering Document, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(v) None of the Company or any of the Guarantors is and, after
giving effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Offering Document,
will be an "investment company" as defined in the Investment Company Act
of 1940, as amended.
(w) Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (a) the minimum
funding standard under Section 302 of the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder ("ERISA"), has been satisfied by each "pension
plan" (as defined in Section 3(2) of ERISA) which has been established or
maintained by the Company and/or one or more of its subsidiaries, each
plan which is intended to be qualified under Section 401 of the Code is so
qualified; (b) each of the Company and its subsidiaries has fulfilled its
obligations, if any, under Section 515 of ERISA; (c) neither the Company
nor any of its subsidiaries maintains or is required to contribute to a
"welfare plan" (as defined in Section 3(1) of ERISA) which provides
retiree or other post-employment welfare benefits or insurance coverage
(other than "continuation coverage" (as defined in Section 602 of ERISA));
(d) each pension plan and welfare plan established or maintained by the
Company and/or one or more of its subsidiaries is in compliance with the
currently applicable provisions of ERISA and the Code; and (e) neither the
Company nor any of its subsidiaries has incurred or could reasonably be
expected to incur any withdrawal liability under Section 4201 of ERISA,
any liability under Section 4062, 4063, or 4064 of ERISA, or any other
liability under Title IV of ERISA.
(x) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation system.
(y) Assuming the accuracy of the representations and warranties of
the Purchasers contained in Section 4 and their compliance with their
agreements set forth therein, the offer and sale of the Offered Securities
by the Company to the several Purchasers in the manner contemplated by
this Agreement will be exempt from the registration requirements of the
Securities Act by reason of Section 4(2) thereof and Regulation S
thereunder ("REGULATION S"); and it is not necessary to qualify an
indenture in respect of the Offered Securities under the United States
Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT").
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(z) There is and has been no failure on the part of the Company and
any of the Company's directors or officers, in their capacities as such,
to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations promulgated in connection therewith (the
"XXXXXXXX-XXXXX ACT"), including Section 402 related to loans and Sections
302 and 906 related to certifications, to the extent such sections are
applicable.
(aa) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf (other than the Purchasers, as to which no
representation is made) (i) has, within the six-month period prior to the
date hereof, offered or sold in the United States or to any U.S. person
(as such terms are defined in Regulation S under the Securities Act) the
Offered Securities, or any security of the same class or series as the
Offered Securities or (ii) has offered or will offer or sell the Offered
Securities (A) in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act or (B) with respect to any such securities sold
in reliance on Rule 903 of Regulation S, by means of any directed selling
efforts within the meaning of Rule 902(c) of Regulation S. The Company,
its affiliates and any person acting on its or their behalf (other than
the Purchasers, as to which no representation is made) have complied and
will comply with the offering restrictions requirement of Regulation S.
The Company has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for this Agreement.
(bb) Neither the Company nor any of its subsidiaries nor any agent
thereof acting on their behalf has taken, and none of them will take, any
action that might cause this Agreement or the issuance or sale of the
Offered Securities to violate Regulation T, Regulation U or Regulation X
of the Board of Governors of the Federal Reserve System.
(cc) On the Closing Date, the Indenture will conform in all material
respects to the requirements of the Trust Indenture Act and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder.
(dd) Except for the Registration Rights Agreement and except as
described in the Offering Circular, there are no contracts, agreements or
understandings between the Company or any Guarantor and any person
granting such person the right to require the Company or any Guarantor to
file a registration statement under the Securities Act with respect to any
securities of the Company or any Guarantor or to require the Company or
any Guarantor to include such securities with the Securities (as defined
in the Registration Rights Agreement) and Guarantees registered pursuant
to any Registration Statement (as defined in the Registration Rights
Agreement).
(ee) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Securities
Act (i) has imposed (or has informed the Company or any Guarantor that it
is considering imposing) any condition (financial or otherwise) on the
Company's or any Guarantor's retaining any rating assigned to the Company
or any Guarantor, any securities of the Company or any Guarantor or (ii)
has indicated to the Company or any Guarantor that it is considering (a)
the downgrading, suspension, or withdrawal of, or any review for a
possible change that does not indicate the direction of the possible
change in, any rating so assigned or (b) any change in the outlook for any
rating of the Company, any Guarantor or any securities of the Company or
any Guarantor.
(ff) The entities listed on Schedule C hereto are the only
subsidiaries of the Company.
(gg) No subsidiary, other than the subsidiaries indicated as
"significant subsidiaries" on Schedule C hereto, as of December 31, 2004,
was a "significant subsidiary" within the meaning of Regulation S-X under
the Securities Act.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 97.50% of the principal amount thereof
plus accrued interest from July 6, 2005 to the Closing
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Date, the respective principal amounts of Offered Securities set forth opposite
the names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the Offered
Securities in the form of one or more permanent global securities in definitive
form (the "GLOBAL SECURITIES") deposited with the Trustee as custodian for The
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Interests in any permanent global Securities will be held only
in book-entry form through DTC, except in the limited circumstances described in
the Offering Document. Payment for the Offered Securities shall be made by the
Purchasers in Federal (same day) funds by official check or checks or wire
transfer to an account at a bank acceptable to CSFB drawn to the order of the
Company at the office of Cravath, Swaine & Xxxxx LLP at 10:00 A.M. (New York
time), on July 6, 2005, or at such other time not later than seven full business
days thereafter as CSFB and the Company determine, such time being herein
referred to as the "CLOSING DATE", against delivery to the Trustee as custodian
for DTC of the Global Securities representing all of the Offered Securities. The
Global Securities will be made available for checking at the above office of
Cravath, Swaine & Xxxxx LLP at least 24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the Company
that it is an "accredited investor" within the meaning of Regulation D
under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may not
be offered or sold within the United States or to, or for the account or
benefit of, U.S. persons except in accordance with Regulation S or
pursuant to an exemption from the registration requirements of the
Securities Act. Each Purchaser severally represents and agrees that it has
offered and sold the Offered Securities, and will offer and sell the
Offered Securities only in accordance with Rule 903 or Rule 144A under the
Securities Act ("RULE 144A"). Accordingly, neither such Purchaser nor its
affiliates, nor any persons acting on its or their behalf, have engaged or
will engage in any directed selling efforts with respect to the Offered
Securities, and such Purchaser, its affiliates and all persons acting on
its or their behalf have complied and will comply with the offering
restrictions requirement of Regulation S and Rule 144A. Each Purchaser
severally agrees that, at or prior to the confirmation of sale of the
Offered Securities, other than a sale pursuant to Rule 144A, such
Purchaser will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases the Offered
Securities from it during the restricted period a confirmation or notice
substantially to the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered or
sold within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the date of the commencement of
the offering and the closing date, except in either case in accordance
with Regulation S (or Rule 144A if available) under the Securities Act.
Terms used have the meanings given to them by Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for any such arrangements with the other Purchasers or affiliates
of the other Purchasers or with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United
States by means of any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act, including, but
not limited to (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or
broadcast over television or radio, or (ii) any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising. Each Purchaser severally agrees, with respect to
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resales made in reliance on Rule 144A of any of the Offered Securities, to
deliver either with the confirmation of such resale or otherwise prior to
settlement of such resale a notice to the effect that the resale of such
Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally 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 Offered
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 Offered Securities in circumstances in which
Section 21(1) of the FSMA does not apply to the Company or the Guarantors;
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 the Offered
Securities in, from or otherwise involving the United Kingdom.
5. Certain Agreements of the Company and the Guarantors. Each of the
Company and the Guarantors, jointly and severally, agrees with the several
Purchasers that:
(a) The Company will advise CSFB promptly of any proposal to amend
or supplement the Offering Document and will not effect such amendment or
supplementation without CSFB's consent, which consent shall not be
unreasonably withheld or delayed. If, at any time prior to the completion
of the resale of the Offered Securities by the Purchasers, any event
occurs as a result of which the Offering Document as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, the Company promptly will notify CSFB of such event and
promptly will prepare, at its own expense, an amendment or supplement
which will correct such statement or omission. Neither CSFB's consent to,
nor the Purchasers' delivery to offerees or investors of, any such
amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 6.
(b) The Company will furnish to CSFB copies of any Preliminary
Offering Circular, the Offering Circular and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as CSFB reasonably requests, and the Company will furnish
to CSFB on the date hereof three copies of the Offering Document signed by
a duly authorized officer of the Company, one of which will include the
independent accountants' reports therein manually signed by such
independent accountants. At any time when the Company is not subject to
Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish
or cause to be furnished to CSFB (and, upon request, to each of the other
Purchasers) and, upon request of holders and prospective purchasers of the
Offered Securities, to such holders and purchasers, copies of the
information required to be delivered to holders and prospective purchasers
of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities
Act (or any successor provision thereto) in order to permit compliance
with Rule 144A in connection with resales by such holders of the Offered
Securities. The Company will pay the expenses of printing and distributing
to the Purchasers all such documents.
(c) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions in the United States and
Canada as CSFB designates and will continue such qualifications in effect
so long as required for the resale of the Offered Securities by the
Purchasers, provided that the Company will not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any such state or subject itself to taxation in respect of doing business
in any jurisdiction where it is not then so subject.
8
(d) During the period of two years after the Closing Date, the
Company will, upon request, furnish to CSFB, each of the other Purchasers
and any holder of Offered Securities a copy of the restrictions on
transfer applicable to the Offered Securities.
(e) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of the Offered
Securities that have been reacquired by any of them.
(f) During the period of two years after the Closing Date, the
Company will not be or become, an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the Investment Company Act.
(g) The Company will pay all expenses incidental to the performance
of its obligations under this Agreement, the Indenture and the
Registration Rights Agreement, including (i) the fees and expenses of the
Trustee and its professional advisors; (ii) all expenses in connection
with the execution, issue, authentication, packaging and initial delivery
of the Offered Securities and, as applicable, the Exchange Securities (as
defined in the Registration Rights Agreement), the preparation and
printing of this Agreement, the Registration Rights Agreement, the Offered
Securities, the Indenture, the Offering Document and amendments and
supplements thereto, and any other document relating to the issuance,
offer, sale and delivery of the Offered Securities and as applicable, the
Exchange Securities; (iii) the cost of qualifying the Offered Securities
for trading in The Portal(SM) Market ("PORTAL") and any expenses
incidental thereto; (iv) the cost of any advertising approved by the
Company in connection with the issue of the Offered Securities; (v) for
any expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities or the Exchange
Securities for sale under the laws of such jurisdictions in the United
States and Canada as CSFB designates and the printing of memoranda
relating thereto; (vi) for any fees charged by investment rating agencies
for the rating of the Offered Securities or the Exchange Securities; and
(vii) for expenses incurred in distributing Preliminary Offering Circulars
and the Offering Circular (including any amendments and supplements
thereto) to the Purchasers. The Company will also pay or reimburse the
Purchasers (to the extent incurred by them) for all travel expenses of the
Company's officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective purchasers
of the Offered Securities from the Purchasers; provided that the
Purchasers and the Company shall be responsible for 75% and 25%,
respectively, of all expenses related to the charter of aircraft in
connection with attending or hosting such meetings.
(h) In connection with the offering, until CSFB shall have notified
the Company and the other Purchasers of the completion of the resale of
the Offered Securities, neither the Company nor any of its affiliates has
or will, either alone or with one or more other persons, bid for or
purchase for any account in which it or any of its affiliates has a
beneficial interest any Offered Securities or attempt to induce any person
to purchase any Offered Securities; and neither it nor any of its
affiliates will make bids or purchases for the purpose of creating actual,
or apparent, active trading in, or of raising the price of, the Offered
Securities.
(i) For a period of 180 days after the date of the initial offering
of the Offered Securities by the Purchasers, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under the
Securities Act (except with respect to the Offered Securities as
contemplated by the Registration Rights Agreement) relating to, any United
States dollar-denominated debt securities issued or guaranteed by the
Company and having a maturity of more than one year from the date of
issue, or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing, without the prior written consent of CSFB.
The Company will not at any time offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any securities under
circumstances where such offer, sale, pledge, contract or disposition
would cause the exemption afforded by Section 4(2) of the Securities Act
or the safe harbor of Regulation S thereunder to cease to be applicable to
the offer and sale of the Offered Securities.
9
6. Conditions of the Obligations of the Purchasers. The obligations of the
several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company and the Guarantors herein on the date hereof and on the Closing Date, to
the accuracy of the statements of officers of the Company and the Guarantors
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of
this Agreement, of Deloitte & Touche LLP in agreed form confirming that
they are independent public accountants within the meaning of the
Securities Act and the applicable published rules and regulations
thereunder ("RULES AND REGULATIONS") and to the effect that:
(i) in their opinion the financial statements and schedules
examined by them and included in the Offering Document comply
as to form in all material respects with the applicable
accounting requirements of the Securities Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the Public
Company Accounting Oversight Board ("PCAOB") for a review of
interim financial information as described in PCAOB Interim
Standard AU 722, Interim Financial Information, on the
unaudited financial statements included in the Offering
Document;
(iii) on the basis of the review referred to in clause (ii) above, a
reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements included in the
Offering Document do not comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the related published Rules and Regulations
or any material modifications should be made to such unaudited
financial statements for them to be in conformity with
generally accepted accounting principles;
(B) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than three business days prior to the date of this
Agreement, there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the date of
the latest available balance sheet read by such accountants,
there was any decrease in consolidated total assets, as
compared with amounts shown on the latest balance sheet
included in the Offering Document; or
(C) for the period from the closing date of the latest
income statement included in the Offering Document to the
closing date of the latest available income statement read by
such accountants there were any decreases, as compared with
the corresponding period of the previous year, in consolidated
revenue or net operating income or in the ratio of earnings to
fixed charges;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Offering Document
discloses have occurred or may occur or which are described in
such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial
information contained in the Offering Document (in each case
to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation)
with the results obtained from
10
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter; and
(v) they have read the unaudited pro forma financial statements
included in the Registration Statements, and after inquiries
with certain officials of the Company who have responsibility
for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them
to believe that such financial statements do not comply as to
form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X and that the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements.
(b) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a majority
in interest of the Purchasers, including CSFB, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating) or any announcement
that the Company has been placed on negative outlook; (iii) any change in
U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the judgment of
a majority in interest of the Purchasers, including CSFB, be likely to
prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities, whether in the primary market or
in respect of dealings in the secondary market, (iv) any material
suspension or material limitation of trading in securities generally on
the New York Stock Exchange, or any setting of minimum prices for trading
on such exchange; (v) or any suspension of trading of any securities of
the Company on any exchange or in the over-the-counter market; (vi) any
banking moratorium declared by U.S. Federal or New York authorities; (vii)
any major disruption of settlements of securities or clearance services in
the United States; or (viii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of the
Purchasers, including CSFB, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical
or inadvisable to proceed with completion of the offering or sale of and
payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated the Closing
Date, of Xxxxxxxx & Xxxxx LLP, counsel for the Company, in the form of
Exhibit A hereto.
(d) The Purchasers shall have received from Cravath, Swaine & Xxxxx
LLP, counsel for the Purchasers, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Offering Circular, the exemption
from registration for the offer and sale of the Offered Securities by the
Company to the several Purchasers and the resales by the several
Purchasers as contemplated hereby and other related matters as CSFB may
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(e) The Purchasers shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this Agreement
are true and correct, that the Company has complied in all material
respects with all agreements and satisfied all conditions on its part to
be performed or satisfied
11
hereunder at or prior to the Closing Date, and that, subsequent to the
dates of the most recent financial statements in the Offering Document,
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth in the
Offering Document or as described in such certificate.
(f) The Purchasers shall have received a letter, dated the Closing
Date, of Deloitte & Touche LLP which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to the Closing
Date for the purposes of this subsection.
(g) The Offered Securities shall have been designated PORTAL
securities in accordance with rules and regulations adopted by NASD
relating to trading in the PORTAL market.
(h) The Credit Agreement Amendment shall have become effective and
the Purchasers shall have received a fully executed copy thereof.
(i) The Representative shall have received a certificate, dated the
Closing Date, from Xxxx X. Xxxxx, Chief Financial Officer of the Company,
substantially in the form of Exhibit B.
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFB may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder.
7. Indemnification and Contribution. (a) The Company and the Guarantors
will jointly and severally indemnify and hold harmless each Purchaser, its
officers, partners, members, directors and its affiliates and each person, if
any, who controls such Purchaser within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such Purchaser may become subject, under the Securities Act or
the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Offering Document, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and will reimburse
each Purchaser for any legal or other expenses reasonably incurred by such
Purchaser in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company and the Guarantors will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Purchaser through CSFB
specifically for use therein, it being understood and agreed that the only such
information consists of the information described as such in subsection (b)
below.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Purchaser through CSFB specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Purchaser consists of
the following information in the Offering Document furnished on behalf of each
Purchaser: under the caption "Plan of Distribution" paragraphs three, six,
eleven and the third sentence of the ninth paragraph.
12
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the failure to notify the indemnifying party shall not relieve it
from any liability that it may have under subsection (a) or (b) above except to
the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than under subsection (a) or
(b) above. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action and (ii) does not include a statement as to or an admission of
fault, culpability or failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Guarantors on the one hand and the Purchasers on the other from the offering of
the Offered Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Guarantors on the one hand and the
Purchasers on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Guarantors on the one hand and the Purchasers on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total discounts
and commissions received by the Purchasers from the Company under this
Agreement. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Guarantors or the Purchasers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Offered Securities purchased by it were
resold exceeds the amount of any damages which such Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Purchasers' obligations in this subsection (d) to contribute are several in
proportion to their respective purchase obligations and not joint.
(e) The obligations of the Company and the Guarantors under this Section
shall be in addition to any liability which the Company and the Guarantors may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Purchaser within the meaning of the Securities
Act and the obligations of the Purchasers under this Section shall be in
addition to any liability which the respective Purchasers may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls the Company or the Guarantors within the meaning of the Securities Act.
13
8. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase the Offered Securities hereunder and the aggregate
principal amount of the Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of the Offered Securities, CSFB may make arrangements
satisfactory to the Company for the purchase of such Offered Securities by other
persons, including any of the Purchasers, but if no such arrangements are made
by the Closing Date, the non-defaulting Purchasers shall be obligated severally,
in proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of the
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total principal amount of the Offered Securities and arrangements
satisfactory to CSFB and the Company for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Purchaser or
the Company, except as provided in Section 9. As used in this Agreement, the
term "Purchaser" includes any person substituted for a Purchaser under this
Section. Nothing herein will relieve a defaulting Purchaser from liability for
its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, the Guarantors or their respective officers and of the several
Purchasers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Purchasers, the Company, the
Guarantors or their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Offered Securities by the Purchasers is not
consummated, the Company and the Guarantors shall remain responsible for the
expenses to be paid or reimbursed by them pursuant to Section 5 and the
respective obligations of the Company and the Guarantors and the Purchasers
pursuant to Section 7 shall remain in effect. If the purchase of the Offered
Securities by the Purchasers is not consummated for any reason other than solely
because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv), (vi), (vii) or (viii)
of Section 6(b), the Company and the Guarantors will reimburse the Purchasers
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Purchasers will be mailed, delivered or telegraphed and confirmed to
Credit Suisse First Boston LLC, Eleven Madison Avenue, New York, N.Y.
10010-3629, Attention: Transactions Advisory Group, or, if sent to the Company
or the Guarantors, will be mailed, delivered or telegraphed and confirmed to it
at Commercial Vehicle Group, Inc., 0000 Xxxx Xxxxxx Xxx, Xxx Xxxxxx, Xxxx 00000,
Attention: Xxxxxx Xxxx, President and Chief Executive Officer; provided,
however, that any notice to a Purchaser pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder, except that holders of Offered Securities shall be
entitled to enforce the agreements for their benefit contained in the second and
third sentences of Section 5(b) hereof against the Company or the Guarantors as
if such holders were parties hereto.
12. Representation of Purchasers. You will act for the several Purchasers
in connection with this purchase, and any action under this Agreement taken by
you jointly or by CSFB will be binding upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Absence of Fiduciary Relationship. The Company acknowledges and agrees
that:
(a) the Representative has been retained solely to act as initial
purchaser in connection with the sale of the Offered Securities and that
no fiduciary, advisory or agency relationship between the Company and the
Representative has been created in respect of any of the transactions
contemplated by this
14
Agreement, irrespective of whether the Representative has advised or is
advising the Company on other matters;
(b) price of the Offered Securities set forth in this Agreement was
established by the Company following discussions and arms-length
negotiations with the Representative and the Company is capable of
evaluating and understanding and understands and accepts the terms, risks
and conditions of the transactions contemplated by this Agreement;
(c) it has been advised that the Representative and its affiliates
are engaged in a broad range of transactions which may involve interests
that differ from those of the Company and that the Representative has no
obligation to disclose such interests and transactions to the Company by
virtue of any fiduciary, advisory or agency relationship; and
(d) it waives, to the fullest extent permitted by law, any claims it
may have against the Representative for breach of fiduciary duty or
alleged breach of fiduciary duty and agrees that the Representative shall
have no liability (whether direct or indirect) to the Company in respect
of such a fiduciary duty claim or to any person asserting a fiduciary duty
claim on behalf of or in right of the Company, including stockholders,
employees or creditors of the Company.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company and the Guarantors hereby submit to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
(The remainder of this page has been intentionally left blank)
15
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company the
Guarantors and the several Purchasers in accordance with its terms.
Very truly yours,
COMMERCIAL VEHICLE GROUP, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
TRIM SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
TRIM SYSTEMS OPERATING CORP.
By: /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
NATIONAL SEATING COMPANY
By: /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
CVS HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
XXXXXXX DEVICES, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
CVG MANAGEMENT CORPORATION
By: /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
16
CVG LOGISTICS LLC
By: /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X.Xxxxx
Title: Chief Financial Officer
MAYFLOWER VEHICLE SYSTEMS LLC
By: /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X. Xxxxx
Title: Treasurer and Secretary
MONONA CORPORATION
By: /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Assistant Secretary
MONONA WIRE CORPORATION
By: /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X.Xxxxx
Title: Vice President and Assistant Secretary
MONONA (MEXICO) HOLDINGS LLC
By: /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X.Xxxxx
Title: Vice President and Assistant Secretary
17
The foregoing Purchase Agreement is hereby confirmed and accepted as of the date
first above written.
By CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Xxxxxx Xxxx
-------------------------
Name: Xxxxxx Xxxx
Title: Managing Director
Acting on behalf of itself and as the Representative of the several Purchasers
18
SCHEDULE A
PRINCIPAL AMOUNT OF
MANAGER OFFERED SECURITIES
------- -------------------
Credit Suisse First Boston LLC .................. $ 112,500,000
Xxxxxx X. Xxxxx & Co. Incorporated .............. 15,000,000
ABN AMRO Incorporated ........................... 4,500,000
Comerica Securities, Inc. ....................... 4,500,000
NatCity Investments, Inc. ....................... 4,500,000
Xxxxx Xxxxxxx & Co. ............................. 4,500,000
Greenwich Capital Markets, Inc. ................. 4,500,000
Total .............. $ 150,000,000
=============
19
SCHEDULE B
LIST OF THE GUARANTORS
Trim Systems, Inc.
Trim Systems Operating Corp.
National Seating Company
CVS Holdings, Inc.
Xxxxxxx Devices, Inc.
CVG Management Corporation
CVG Logistics LLC
Mayflower Vehicle Systems LLC
Monona Corporation
Monona Wire Corporation
Monona (Mexico) Holdings LLC
20
SCHEDULE C
SUBSIDIARIES OF COMMERCIAL VEHICLE GROUP, INC.
Significant
Entity Jurisdiction Subsidiary
---------------------------------------- --------------- -----------
1. Trim Systems, Inc. Delaware Yes
2. Trim Systems Operating Corp. Delaware Yes
3. CVG International Holdings Limited Barbados
4. CVG (Shanghai), Co. LTD. China
5. CVS Holdings Limited United Kingdom Yes
6. Commercial Vehicle Systems Limited United Kingdom Yes
7. Xxxxxxx Limited United Kingdom Yes
8. Xxxxxxx Investments Limited United Kingdom
9. KAB Seating LLC United Kingdom
10. Xxxxxxx International Limited United Kingdom
11. KAB Seating, AB Sweden
12. KAB Seating, Pty Australia
13. KAB Seating, S.A. Belgium
14. National Seating Company Delaware Yes
15. KAB Seating Limited United Kingdom Yes
16. X. Xxxxxx Pressings Limited United Kingdom
17. Wilton & Co. Pressings Limited United Kingdom
18. Xxxxxxx Specialist Engineering Limited United Kingdom
19. Winston Cable Limited United Kingdom
20. JMH Limited United Kingdom
21. KAB Tooling Limited United Kingdom
22. Xxxxxxx Europe United Kingdom
23. The C&P Jig & Tool Limited United Kingdom
24. BB Seating Limited United Kingdom
25. Xxxxxx & Xxxxxxx Limited United Kingdom
26. AJW Holdings Limited United Kingdom
27. KAB Industries Limited United Kingdom
21
Significant
Entity Jurisdiction Subsidiary
----------------------------------------- --------------- -----------
28. Corvus Suspension Products Limited United Kingdom
29. KAB Pressings Limited United Kingdom
30 KAB Components Limited United Kingdom
31. XX Xxxxxxxx Small Pressings Limited United Kingdom
32. Xxxxxxx Vehicle Components Limited United Kingdom
33. Inbark Limited United Kingdom
34. KAB Engineering Limited United Kingdom
35. CVS Holdings, Inc. Delaware Yes
36. Xxxxxxx Devices, Inc. Delaware Yes
37. CVG Management Corp. Delaware
38. CVG Logistics LLC Delaware
39. Mayflower Vehicle Systems LLC Delaware Yes
40. T.S. Mexico S. de X.X. de C.V. Mexico
41. Monona Corporation Delaware Yes
42. Monona Wire Corporation Iowa Yes
43. Monona (Mexico) Holdings LLC Illinois
44. MWC de Mexico S. de X.X. de C.V. Mexico
45. EMD Servicios, S.A. de C.V. Mexico
22
EXHIBIT A
OPINION OF XXXXXXXX & XXXXX LLP
23
EXHIBIT B
CERTIFICATE OF CHIEF FINANCIAL OFFICER
