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EXHIBIT 10.27
▇▇▇▇ CORPORATION
[EURO]250,000,000
8 1/8% Senior Notes Due 2008
Purchase Agreement
March 15, 2001
SALOMON BROTHERS INTERNATIONAL LIMITED
DEUTSCHE BANK AG
As Representatives of the Initial Purchasers
c/o Salomon Brothers International Limited
Citigroup Centre
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Ladies and Gentlemen:
▇▇▇▇ Corporation, a corporation organized under the laws of
Delaware (the "Company"), proposes to issue and sell to the several parties
named in Schedule I hereto (the "Initial Purchasers"), for whom you (the
"Representatives") are acting as representatives, E250,000,000 principal amount
of its 8 1/8 % Senior Notes Due 2008 (the "Notes"). The Notes will be issued
pursuant to an indenture to be dated as of March 20, 2001 (the "Indenture"), by
and among the Company, the Guarantors (as defined below) and The Bank of New
York, as trustee (the "Trustee"). The Notes will be guaranteed on a senior basis
in accordance with the applicable provisions of the Indenture (each, a
"Guarantee" and collectively, the "Guarantees") by each of ▇▇▇▇ Operations
Corporation, ▇▇▇▇ Corporation Automotive Holdings, ▇▇▇▇ Corporation ▇▇▇▇ and
Interiors and ▇▇▇▇ Seating Holdings Corp. #50 (each, a "Guarantor" and
collectively, the "Guarantors"). The Notes and the Guarantees are referred to
herein as the "Securities" and the Company and the Guarantors are referred to
herein as the "Issuers."
The Securities have the benefit of a registration rights
agreement (the "Registration Rights Agreement") the form of which is attached
hereto as Exhibit D, dated as of March 20, 2001, among the Issuers and the
Initial Purchasers, pursuant to which the Issuers have 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 Representatives as used herein shall mean you as the Initial
Purchasers, and the terms Representatives and Initial Purchasers shall mean
either the singular or plural as the context
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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
17 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 Issuers
have prepared a preliminary offering memorandum, dated March 7, 2001 (as amended
or supplemented at the Execution Time, including any and all exhibits thereto
and any information incorporated by reference therein, the "Preliminary
Memorandum"), and a final offering memorandum, dated March 15, 2001 (as amended
or supplemented at the Execution Time, including any and all exhibits thereto
and any information incorporated by reference therein, the "Final Memorandum"
and, together with the Preliminary Memorandum, each a "Memorandum"). Each of the
Preliminary Memorandum and the Final Memorandum sets forth certain information
concerning the Issuers and the Securities. Each Issuer 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. Unless stated to the contrary, any
references herein to the terms "amend", "amendment" or "supplement" with respect
to a Memorandum shall be deemed to refer to and include any information filed
under the Exchange Act subsequent to the date of such Memorandum which is
incorporated by reference therein.
1. Representations and Warranties. Each Issuer 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 and on the Closing Date, the Final Memorandum did not,
and will not (and any amendment or supplement thereto, at the date
thereof and at the Closing 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 Issuers make 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 Issuers by or on behalf of any Initial Purchaser through the
Representatives specifically for inclusion therein.
(b) None of the Issuers, nor 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
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solicited offers to buy any security, under circumstances that would
require the registration of the Securities under the Act.
(c) None of the Issuers, nor any of its Affiliates, nor any
person acting on its or their behalf 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, except no representation or warranty is made by the Issuers
with respect to the actions of any Initial Purchaser.
(d) The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Act.
(e) None of the Issuers, nor any of its Affiliates, nor any
person acting on its or their behalf 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,
except no representation or warranty is made by the Issuers with
respect to the actions of any Initial Purchaser. Terms used in this
paragraph have the meanings given to them by Regulation S.
(f) None of the Issuers is, and after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Memorandum will be, an "investment
company" within the meaning of the Investment Company Act, without
taking account of any exemption arising out of the number of holders of
the Issuers' securities.
(g) The Issuers are subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange
Act.
(h) The Issuers have not paid or agreed to pay to any person
any compensation for soliciting another to purchase any Securities
(except as contemplated by this Agreement).
(i) The Issuers have 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 Issuers to facilitate the sale or resale of the
Securities.
(j) The information provided by the Issuers pursuant to
Section 5(h) hereof will not, at the date thereof, 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.
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(k) Each of the Company and its subsidiaries has been duly
organized and is validly existing and in good standing under the laws
of the jurisdiction in which it is chartered or organized with full
power and authority (corporate or otherwise) to own or lease, as the
case may be, and to operate its properties and conduct its business as
described in the Final Memorandum, and is duly qualified to do business
as a foreign corporation (or other entity) and is in good standing
under the laws of each jurisdiction which requires such qualification,
except, in each case, to the extent that the failure to be duly
organized, validly existing or in good standing or to be so qualified
would not reasonably be expected to have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business or
operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect").
(l) All the outstanding shares of capital stock of each
subsidiary of the Company that represents more than 5% of the Company's
consolidated assets, revenues or earnings (each a "Material Subsidiary"
and collectively, the "Material Subsidiaries") have been duly and
validly authorized and issued and are fully paid and nonassessable,
and, except as otherwise set forth in the Final Memorandum, all
outstanding shares of capital stock of the subsidiaries are owned by
the Company either directly or through wholly owned subsidiaries free
and clear of any perfected security interest or any other security
interests, claims, liens or encumbrances (other than liens and other
encumbrances that will be permitted under the terms of the Indenture).
(m) The statements in the Final Memorandum under the headings
"Tax Consequences to Holders", "Description of the Notes" and "Exchange
Offer; Registration Rights", fairly summarize the matters therein
described in all material respects.
(n) This Agreement has been duly authorized, executed and
delivered by each Issuer; the Indenture has been duly authorized by
each of the Issuers, and when the Indenture is executed and delivered
by each Issuer and the Securities are delivered and paid for pursuant
to this Agreement on the Closing Date, assuming due authorization,
execution and delivery thereof by the Trustee, the Indenture will
constitute a legal, valid, binding instrument enforceable against each
Issuer in accordance with its terms (subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws or court decisions
affecting creditors' rights generally from time to time in effect and
to general principles of equity); the Securities have been duly
authorized, and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Initial Purchasers in accordance with the terms of this Agreement, will
have been duly executed and delivered by each Issuer and will
constitute the legal, valid and binding obligations of such Issuer
entitled to the benefits of the Indenture (subject to applicable
bankruptcy, insolvency, moratorium or
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other laws or court decisions affecting creditors' rights generally
from time to time in effect and to general principles of equity); the
Registration Rights Agreement has been duly authorized and, when
executed and delivered by each Issuer and the Securities are delivered
and paid for pursuant to this Agreement on the Closing Date, will
constitute the legal, valid, binding and enforceable instrument of each
Issuer (subject to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws or court decisions affecting creditors' rights
generally from time to time in effect and to general principles of
equity and except that rights to indemnification and contribution under
such Agreement may be limited under applicable law or public policy
considerations); and there are no contracts, agreements or
understandings between the Company or the Guarantors and any person
granting such person the right to require the Company or the Guarantors
to include any securities of the Company or the Guarantors with the
Securities registered pursuant to any registration statement.
(o) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Indenture or the
Registration Rights Agreement, except such as will be obtained or made
under the Act, the Exchange Act, the Trust Indenture Act and the rules
of The New York Stock Exchange, such as may be required under the blue
sky laws of any state or the laws of any foreign jurisdiction in
connection with the purchase and distribution of the Securities by the
Initial Purchasers in the manner contemplated herein and in the Final
Memorandum and the Registration Rights Agreement and as may be required
by the National Association of Securities Dealer, Inc.
(p) Neither the execution and delivery of the Indenture, this
Agreement or the Registration Rights Agreement, the issue and sale of
the Securities, nor the consummation of any other of the transactions
herein or therein contemplated, nor the fulfillment of the terms hereof
or thereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, (i) the
charter or by-laws of the Company or any of its subsidiaries; (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or any of its subsidiaries
is a party or bound or to which its or their property is subject and
which is material to the Company and its subsidiaries, taken as a
whole; or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
any of its subsidiaries or any of its or their properties.
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(q) The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries included in
the Final Memorandum present fairly in all material respects the
financial condition, results of operations and cash flows of the
Company and its consolidated subsidiaries as of the dates and for the
periods indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein);
the selected consolidated financial data set forth under the caption
"Selected Consolidated Financial Information" in the Final Memorandum
fairly present, on the basis stated in the Final Memorandum, the
information included therein.
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending
or, to the best knowledge of the Issuers, threatened that (i) would
reasonably be expected to have a material adverse effect on the
performance of this Agreement, the Indenture or the Registration Rights
Agreement, or the consummation of any of the transactions contemplated
hereby or thereby; or (ii) would reasonably be expected to have a
Material Adverse Effect, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated
in the Final Memorandum (exclusive of any amendment or supplement
thereto).
(s) Each of the Company and its subsidiaries holds good and
marketable title to, or valid and enforceable leasehold interest in,
all items of real and personal property which are material to the
business of the Company and its subsidiaries taken as a whole, free and
clear of any lien, claim, encumbrance, preemptive rights or any other
claim of any other third party (other than liens and other encumbrances
that would be permitted under the terms of the Indenture), with such
exceptions as would not reasonably be expected to have Material Adverse
Effect. Each of the Company and its subsidiaries enjoys peaceful and
undisturbed possession under all leases and licenses of real property
under which it is operating except where such failure would not
reasonably be expected to have a Material Adverse Effect.
(t) Except such violations or defaults which would not
reasonably be expected to have a Material Adverse Effect, neither the
Company nor any subsidiary is in violation or default of (i) any
provision of its charter or bylaws; (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject; or (iii) any statute, law, rule, regulation, judgment, order
or decree applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other
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authority having jurisdiction over the Company or such subsidiary or
any of its properties, as applicable.
(u) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Final Memorandum,
are independent public accountants with respect to the Company within
the meaning of the Act and the applicable published rules and
regulations thereunder.
(v) There are no stamp or other issuance or transfer taxes or
duties or other similar fees or charges required to be paid in
connection with the execution and delivery of this Agreement or the
issuance or sale by the Issuers of the Securities.
(w) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to file
would not reasonably be expected to have a Material Adverse Effect),
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final
Memorandum (exclusive of any amendment or supplement thereto) and has
paid all taxes required to be paid by it and any other assessment, fine
or penalty levied against it, to the extent that any of the foregoing
is due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith or as would not have a
Material Adverse Effect, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated
in the Final Memorandum (exclusive of any amendment or supplement
thereto).
(x) No labor problem or dispute with the employees of the
Company or any of its subsidiaries exists or is threatened or imminent,
and none of the Issuers are aware of any existing or imminent labor
disturbance by the employees of any of its or its subsidiaries'
principal suppliers, contractors or customers, that would reasonably be
expected to have a Material Adverse Effect whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Final Memorandum (exclusive of any amendment or
supplement thereto).
(y) The Company and each of its Material Subsidiaries are
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in
the businesses in which they are engaged; all material policies of
insurance insuring the Company or any of its subsidiaries or their
respective businesses, assets, employees, officers and directors are in
full force and effect; and the Company and its subsidiaries are in
compliance with the terms of such material policies and instruments in
all material respects.
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(z) No Material Subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on such subsidiary's
capital stock, from repaying to the Company any loans or advances to
such subsidiary from the Company or from transferring any of such
subsidiary's property or assets to the Company or any other subsidiary
of the Company, except (i) as described in or contemplated by the Final
Memorandum (exclusive of any amendment or supplement thereto), (ii)
prohibitions and restrictions under applicable law and (iii)
prohibitions and restrictions that would not have a material adverse
effect on the ability of the Company to satisfy its obligations under
the Indenture and the Notes.
(aa) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities that are
material to the business of the Company and its subsidiaries, taken as
a whole, and neither the Company nor any such subsidiary has received
any notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Memorandum (exclusive of any
amendment or supplement thereto).
(bb) Other than as set forth or contemplated in the Final
Memorandum (exclusive of any amendment or supplement thereto) and other
than such other exceptions as would not reasonably be expected to have
a Material Adverse Effect, the Company and its subsidiaries are (i) in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"); (ii) have received
and are in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses; and (iii) have not received notice of any actual
or potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants.
(cc) Other than for such exceptions as would not reasonably be
expected to have a Material Adverse Effect, each of the Company and its
subsidiaries has fulfilled its obligations, if any, under the minimum
funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and the
regulations and published interpretations thereunder with respect to
each "plan" (as defined in Section 3(3) of ERISA and such regulations
and published interpretations) in which employees of the Company and
its subsidiaries are
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eligible to participate and each such plan is in compliance in all
material respects with the presently applicable provisions of ERISA and
such regulations and published interpretations; the Company and its
subsidiaries have not incurred any material liability which is due but
not paid to the Pension Benefit Guaranty Corporation (other than for
the payment of premiums in the ordinary course) or to any such plan
under Title IV of ERISA.
Any certificate signed by any officer of Issuer and delivered
to the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by such
Issuer, as to matters covered thereby, to each Initial Purchaser.
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 98.875% of the principal amount thereof, the principal amount of Notes
set forth opposite such Initial Purchaser's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 A.M., New York City time, on March 20, 2001,
or at such time on such later date (not later than March 20, 2001) as the
Representatives and the Company may agree 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
Representatives for the respective accounts of the several Initial Purchasers
against payment by the several Initial Purchasers through the Representatives 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 Clearstream Banking S.A.,
Luxembourg ("Clearstream, Luxembourg") and the Euroclear System ("Euroclear")
unless the Representatives shall otherwise instruct.
The Securities will be evidenced by one or more global
securities and will be registered, in the case of a global security, in the name
of Euroclear Bank S.A./N.V. as operator of Euroclear and Clearstream,
Luxembourg, or its designated custodian, and in the other cases, in such names
and in such denominations as the Initial Purchasers shall request prior to 12:00
p.m., New York City time, on the business day preceding the Closing Date. The
certificated Securities to be delivered to the Initial Purchasers shall be made
available to the Initial Purchasers in New York City for inspection and
packaging not later than 9:30 a.m., New York City time, on the business day next
preceding the Closing Date.
4. Offering by Initial Purchasers. Each Initial Purchaser,
severally and not jointly, represents and warrants to and agrees with the
Issuers that:
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(a) It is purchasing Securities pursuant to a private sale
exemption from registration under the Act.
(b) It has not solicited offers for, offered or sold, and will
not solicit offers for, 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.
(c) 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. Each Issuer agrees with each Initial Purchaser
that:
(a) The Issuers 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 Issuers will not amend or supplement the Final
Memorandum, other than by filing documents under the Exchange Act that
are incorporated by reference therein, without the prior written
consent of the Representatives, which consent shall not be unreasonably
withheld or delayed; provided, however, that, prior to the completion
of the distribution of the Securities by the Initial Purchasers (as
determined by the Initial Purchasers), the Issuers will not, unless
required to do so under applicable law or stock exchange requirement,
file any document under the Exchange Act that is incorporated by
reference in the Final Memorandum unless, prior to such proposed
filing, the Issuers have furnished the Representatives with a copy of
such document for their review and the Representatives have not
reasonably objected to the filing of such document in a timely manner.
Prior to the completion of the distribution of the Securities, the
Issuers will promptly advise the Representatives when any document
filed under the Exchange Act that is incorporated by reference in the
Final Memorandum shall have been filed with the Commission.
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers (as determined by the
Representatives), 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
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made, not misleading, or if it should be necessary to amend or
supplement the Final Memorandum to comply with applicable law, the
Issuers promptly (i) will notify the Representatives 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 Purchasers without charge in
such quantities as they may reasonably request.
(d) The Issuers will cooperate with you and your counsel to
qualify 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 by the Initial Purchasers; provided that in no
event shall the Issuers be obligated to qualify or register to do
business in any jurisdiction where they are not now so qualified or
registered or to take any action that would subject any of them to
service of process in suits, other than those arising out of the
offering or sale of the Securities, or taxation in any jurisdiction
where they are not now so subject. The Issuers will promptly advise the
Representatives of the receipt by the Issuers 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) During the period of two years after the Closing Date, the
Issuers will not, and will not permit any of their Affiliates to,
resell any Securities which constitute "restricted securities" under
Rule 144 of the Act that have been acquired by any of them.
(f) Neither the Issuers, nor any of their respective
Affiliates, nor any person acting on their behalf 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.
(g) Neither the Issuers, nor any of their respective
Affiliates, nor any person acting on their behalf 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, during any period in which it is not subject to and in
compliance with Section 13 or 15(d) of the Exchange Act or it is are
not exempt from such reporting requirements pursuant to and in
compliance with Rule 12g3-2(b) under the Exchange Act, provide to each
holder of such
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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 Issuers, nor any of their respective
Affiliates, nor any person acting on 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 Issuers will cooperate with the Representatives and
use their best efforts to permit the Securities to be eligible for
clearance and settlement through Euroclear and Clearstream, Luxembourg.
(k) The Issuers 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
Issuers to facilitate the sale or resale of the Securities.
(l) The Issuers agree 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 to
the Initial Purchasers; (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 (which shall be
approximately $5,000) relating to such registration and qualification);
(vii) the application for the listing of the Securities on the
Luxembourg Stock Exchange and the approval of the Notes for clearing
through Euroclear and Clearstream, Luxembourg; (viii) the
transportation and other expenses incurred by or on behalf of the
Issuers'
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representatives in connection with presentations to prospective
purchasers of the Securities (other than customary expenses paid for by
the Initial Purchasers); (ix) the fees and expenses of the Issuers'
accountants and the fees and expenses of counsel (including local and
special counsel) for the Issuers; (x) any fees charged by rating
agencies for the rating of the Securities; (xi) the costs and charges
of the Trustee and any transfer agent, registrar or depositary and
(xii) all other costs and expenses incident to the performance by the
Issuers of their obligations hereunder. It is understood and agreed
that the Initial Purchasers will pay all of their costs and expenses,
including the fees and disbursements of their counsel, transfer taxes
payable on the resale of any of the Securities by them and any
advertising expenses connected with any offers they may make.
6. Conditions to the Obligations of the Initial Purchasers.
The obligations of the Initial Purchasers to purchase the Securities shall be
subject to the representations and warranties on the part of the Issuers being
true and correct in all respects to the extent qualified by materiality, and
being true and correct in all material respects to the extent not qualified by
materiality at the Execution Time and the Closing Date, to the accuracy of the
statements of the Issuers made in any certificates pursuant to the provisions
hereof, to the performance, in all material respects, by the Issuers of their
obligations hereunder and to the following additional conditions:
(a) The Issuers shall have requested and caused Winston &
▇▇▇▇▇▇, counsel for the Issuers, to furnish to the Representatives its
opinion, dated the Closing Date and addressed to the Representatives
substantially in the form of Exhibit B hereto.
(b) The Issuers shall have requested and caused ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, General Counsel to the Company, to furnish to the
Representatives, his opinion, dated the Closing Date and addressed to
the Representatives substantially in the form of Exhibit C hereto.
(c) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
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
Representatives 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) Each Issuer shall have furnished to the Representatives a
certificate of such Issuer, signed by the Chairman of the Board, the
Chief Executive Officer, the
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President or any Vice President and the principal financial or
accounting officer or Treasurer of such Issuer, dated the Closing Date,
to the effect set forth in Section 6(h) that the signers of such
certificate have reviewed the Final Memorandum, any amendment or
supplement to the Final Memorandum and this Agreement and that, to
their knowledge:
(i) the representations and warranties of such Issuer
in this Agreement are true and correct in all respects to the
extent qualified by materiality, and shall be true and correct
in all material respects to the extent not qualified by
materiality, on and as of the Closing Date with the same
effect as if made on the Closing Date (except to the extent
they speak as of an earlier date), and such Issuer 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) since the date of the most recent financial
statements included in the Final Memorandum (exclusive of any
amendment or supplement thereto), there has been no material
adverse change in the condition (financial or otherwise), or
in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated by the Final Memorandum (exclusive of
any amendment or supplement thereto).
(e) At the Execution Time and at the Closing Date, the Company
shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP to furnish to the
Representatives letters, dated respectively as of the Execution Time
and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants under
rule 101 of the AICPA's Code of Professional Conduct, and related
interpretations and rulings, stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated in
the Final Memorandum and reported on by them comply as to form
in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations thereunder;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but
not an examination in accordance with 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
stockholders, directors and audit committees of
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the Company and its subsidiaries; and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as
to transactions and events subsequent to December 31, 2000,
nothing came to their attention which caused them to believe
that:
(1) with respect to the period subsequent to
December 31, 2000, there were any changes, at a
specified date not more than five business days prior
to the date of the letter, in the long-term debt of
the Company and its subsidiaries or capital stock of
the Company or decreases in the stockholders' equity
of the Company as compared with the amounts shown on
the December 31, 2000 consolidated balance sheet
included or incorporated in the Final Memorandum, or
for the period from January 1, 2001 to such specified
date (or such earlier date, not earlier than February
24, 2001, as of which there is available financial
information) there were any decreases, as compared
with the corresponding period in the preceding year
in net sales or in net income of the Company and its
subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the
Representatives; or
(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, and certain information included or incorporated
by reference into the Company's Annual Report on Form 10-K
incorporated in the Final Memorandum, agrees with the
accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
References to the Final Memorandum in this Section 6(d)
include any amendment or supplement thereto at the date of the
applicable letter.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Final Memorandum (exclusive of
any amendment or supplement thereto), there shall not have been (i) any
change or decrease specified in the letter or letters referred to in
paragraph (e) of this Section 6; or (ii) any change, or any development
involving a prospective change, in the condition (financial or
otherwise), or in the earnings, business or operations of the Company
and its subsidiaries, taken as
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a whole, whether or not arising from transactions in the ordinary
course of business, except in the case of clauses (i) and (ii) above as
set forth in or contemplated in the Final Memorandum (exclusive of any
amendment or supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it impractical to
market the Securities as contemplated by the Final Memorandum
(exclusive of any amendment or supplement thereto).
(g) The Securities shall be eligible for clearance and
settlement through Euroclear and Clearstream, Luxembourg.
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating.
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 Representatives and counsel for the
Initial Purchasers, this Agreement and all obligations of the Initial Purchasers
hereunder may be cancelled at, or at any time prior to, the Closing Date by the
Representatives. 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 counsel for the Initial Purchasers, at ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, 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 hereof or because of any
refusal, inability or failure on the part of the Issuers to perform, in any
material respect, any agreement herein or comply, in any material respect, with
any provision hereof other than by reason of a default by any of the Initial
Purchasers, the Issuers will reimburse the Initial Purchasers severally through
Salomon Brothers International Limited 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.
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8. Indemnification and Contribution (a) The Issuers jointly
and severally agree to indemnify and hold harmless each Initial Purchaser, the
directors, officers, employees and agents of each Initial Purchaser and each
person who controls any Initial Purchaser within the meaning of either the Act
or the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law 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 a material fact contained in the
Preliminary Memorandum, the Final Memorandum (or in any supplement or amendment
thereto) or any information provided by any Issuer to any holder or prospective
purchaser of Securities pursuant to Section 5(h), or in any amendment thereof 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, in the light of the circumstances
under which they were made, not misleading, and agree to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Issuers 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 any such untrue statement or alleged
untrue statement or omission or alleged omission made in the Preliminary
Memorandum or the Final Memorandum, or in any amendment thereof or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Initial Purchasers through the
Representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Issuers may otherwise have.
(b) Each Initial Purchaser severally and not jointly agrees to
indemnify and hold harmless each Issuer, each of its directors, each of its
officers, and each person who controls an Issuer within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Issuers to each Initial Purchaser, but only with reference to written
information relating to such Initial Purchaser furnished to the Company by or on
behalf of such Initial Purchaser through the Representatives specifically for
inclusion in the Preliminary Memorandum or the Final Memorandum (or in any
amendment or supplement thereto). This indemnity agreement will be in addition
to any liability which any Initial Purchaser may otherwise have. The Issuers
acknowledge that the statements set forth in the last paragraph of the cover
page regarding the delivery of the Securities, the legend on page (ii)
concerning stabilization, syndicate covering transactions and penalty bids and,
under the third, fifth, seventh and ninth paragraphs under the heading "Plan of
Distribution", constitute the only information furnished in writing by or on
behalf of the Initial Purchasers for inclusion in the Preliminary Memorandum or
the Final Memorandum (or in any amendment or supplement thereto).
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(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof may be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it has been prejudiced thereby; and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest; (ii) the named
defendants in, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded,
based on advice of counsel, that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party such that representation by the same counsel
would be inappropriate under the circumstances; (iii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after notice of the
institution of such action; or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the indemnifying
party. It is understood, however, that the indemnifying party shall, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such indemnified parties, which firm shall be designated in writing by
Salomon Brothers International Limited, in the case of parties indemnified
pursuant to Section 8(a) above, and the Company, in the case of parties
indemnified pursuant to Section 8(b) above. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution is available hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit
-18-
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or proceeding. An indemnifying party shall not be liable under this Section 8 to
any indemnified party regarding any settlement or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
is consented to in writing by such indemnifying party, which consent shall not
be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Issuers and the Initial Purchasers agree
to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Issuers
and one or more of the Initial Purchasers may be subject in such proportion as
is appropriate to reflect the relative benefits received by the Issuers on the
one hand and by the Initial Purchasers on the other from the offering of the
Securities; provided, however, that in no case shall any Initial Purchaser
(except as may be provided in any agreement among the Initial Purchasers
relating to the offering of the Securities) be responsible for any amount in
excess of the purchase discount or commission applicable to the Securities
purchased by such Initial Purchaser hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Issuers and
the Initial Purchasers shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Issuers on the one hand and of the Initial Purchasers on the other in connection
with the statements or omissions which resulted in such Losses, as well as any
other relevant equitable considerations. Benefits received by the Issuers shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by them, and benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts and
commissions in each case set forth on the cover of the Final Memorandum.
Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Issuers on the one hand or the Initial Purchasers on the other, the intent of
the parties and their relative knowledge, information and opportunity to correct
or prevent such untrue statement or omission. The Issuers and the Initial
Purchasers agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), 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. For purposes of this Section 8, each person who
controls an Initial Purchaser within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an Initial
Purchaser shall have the same rights to contribution as such Initial Purchaser,
and each person who controls an Issuer within the meaning of either the Act or
the Exchange Act and each officer and director of an Issuer shall have the same
rights to contribution as an Issuer,
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subject in each case to the applicable terms and conditions of this paragraph
(d).
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 amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate 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 amount of Securities which the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule I hereto, and arrangements
satisfactory to you and the Company are not made within 36 hours after such
default, 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 Issuers. 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 Representatives or the Company
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 Issuers or any nondefaulting Initial Purchaser for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the discretion of the Salomon Brothers International Limited and
Deutsche Bank AG, acting jointly, by notice given to the Company prior to the
Closing Date if at any time after the Execution Time and prior to the Closing
Date (i) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the London Stock Exchange or the New York Stock Exchange shall have been
suspended or materially limited or minimum prices shall have been established on
such Exchange; (ii) a banking moratorium shall have been declared either by U.S.
Federal or New York State authorities; or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war or other calamity or crisis, which in the case of
clauses 10(i) through 10(iii) the effect of which on the financial markets is to
make it, in the reasonable judgment of Salomon Brothers International Limited
and Deutsche Bank AG, acting jointly, impracticable to proceed with the offering
or delivery of the Securities as contemplated by the Final Memorandum (exclusive
of any amendment or supplement thereto).
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11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Issuers or their 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 Issuers
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 Representatives, will be
mailed, delivered or telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: General Counsel;
or, if sent to the Company, will be mailed, delivered or telefaxed to ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (fax no.: (248)
▇▇▇-▇▇▇▇) and confirmed to it at ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, attention of the Legal
Department at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ with copies to
Winston and ▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
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. 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.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. 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.
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"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 or
Luxembourg, Belgium.
"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.
"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.
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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 Issuers and the several Initial Purchasers.
Very truly yours,
▇▇▇▇ CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
▇▇▇▇ OPERATIONS CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
▇▇▇▇ CORPORATION AUTOMOTIVE HOLDINGS
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Chief Financial
Officer and Assistant Secretary
▇▇▇▇ CORPORATION ▇▇▇▇ AND INTERIORS
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
▇▇▇▇ SEATING HOLDINGS CORP. #50
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
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The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
By: SALOMON BROTHERS INTERNATIONAL LIMITED
By /s/
-------------------------------------
Name:
Title:
By: DEUTSCHE BANK AG
By /s/
-------------------------------------
Name:
Title:
For themselves and the other several Initial Purchasers named in Schedule I to
the foregoing Agreement.
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SCHEDULE I
Principal Amount of
Firm Securities
Initial Purchasers to Be Purchased
------------------ ---------------
Salomon Brothers International Limited................................. E68,750,000.00
Deutsche Bank AG....................................................... 68,750,000.00
▇▇▇▇▇▇ Brothers International (Europe) ................................ 26,500,000.00
Credit Suisse First Boston (Europe) Limited............................ 24,000,000.00
▇▇▇▇▇▇▇ ▇▇▇▇▇ International............................................ 20,775,000.00
Chase Securities Inc................................................... 8,775,000.00
Bank of America International Limited.................................. 8,775,000.00
BNP Paribas Securities Corp. .......................................... 5,925,000.00
Mizuho International plc............................................... 5,925,000.00
Scotia Capital (USA) Inc. ............................................. 5,925,000.00
TD Securities Limited.................................................. 5,925,000.00
Total......................................................... E250,000,000
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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(b)(i) of the Agreement to which this is an
exhibit, it has offered and sold the Securities, and will offer and sell the
Securities, (i) as part of their distribution at any time; and (ii) otherwise
until 40 days after the later of the commencement of the offering and the
Closing Date, only in accordance with Rule 903 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. Each Initial Purchaser agrees that, at
or prior to the confirmation of sale of Securities (other than a sale of
Securities pursuant to Section 4(b)(i) of the Agreement to which this is an
exhibit), it shall have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Securities from it
during the distribution compliance period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "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 commencement of the offering and
March [ ], 2001, except in either case in accordance with Regulation S
or Rule 144A under the Act. Terms used above have the meanings given to
them by 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 date six months after the date of
issuance of the Securities, will not offer
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27
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 as 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 complied and will comply with
all applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ of the United
Kingdom with respect to anything done by it in relation to the Securities in,
from or otherwise involving the United Kingdom; and (iii) it has only issued or
passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issue of the Securities to a person who is
of a kind described in Article 9(3) of the Financial Services ▇▇▇ ▇▇▇▇
(Investment Advertisements) (Exemptions) Order 1996 or is a person to whom the
document may otherwise lawfully be issued or passed on.
(3) Each Initial Purchaser understands and acknowledges that
no action has been or will be taken in any jurisdiction by any Issuer that would
permit a public offering of the Securities, or possession or distribution of
either Memorandum or any other offering or publicity material relating to the
Securities, in any country or jurisdiction where action for that purpose is
required.
(4) Each Initial Purchaser has complied and will comply with
all applicable laws and regulations in each jurisdiction in which it acquires,
offers, sells or delivers Securities or has in its possession or distributes
either Memorandum or any other offering or publicity material relating to the
Securities.
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