EXHIBIT 10.56
$100,000,000
HEXCEL CORPORATION
93/4% SENIOR SUBORDINATED NOTES DUE 2009
PURCHASE AGREEMENT
June 15, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
c/o CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. INTRODUCTORY. Hexcel Corporation, 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
"INITIAL PURCHASERS") $100,000,000 principal amount of its 9 3/4% Senior
Subordinated Notes Due 2009 (the "OFFERED SECURITIES"). The Offered Securities
will be issued as additional securities under an indenture dated as of January
21, 1999 (the "INDENTURE"), between the Company and The Bank of New York, as
trustee (the "TRUSTEE").
The Offered Securities will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933 (the "SECURITIES
ACT"), in reliance upon an exemption therefrom. Prior to the Closing Date (as
defined herein), the Company will deliver to the Initial Purchasers a
Preliminary Offering Circular (as defined herein) setting forth the information
concerning the Company and the Offered Securities. Any references herein to the
Offering Circular (as defined herein) shall be deemed to include all amendments
and supplements thereto, unless otherwise noted, and all documents (the
"INCORPORATED DOCUMENTS") incorporated by reference therein and filed under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"); and any
references herein to the terms "amend", "amendment" or "supplement" with respect
to the Offering Circular shall be deemed to refer to and include the filing of
any document under the Exchange Act subsequent to the date thereof and before
the Closing Date that is incorporated by reference therein. The Company hereby
confirms that it has authorized the use of the Incorporated Documents and the
Offering Document (as defined herein) in connection with the offering and resale
of the Offered Securities by the Initial Purchasers in accordance with Section 4
hereof.
Holders of the Offered Securities (including the Initial Purchasers and
their direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement to be entered into, among the Company and the
Initial Purchasers (the "REGISTRATION RIGHTS AGREEMENT"), pursuant to which the
Company will agree to file with the Securities and Exchange Commission (the
"COMMISSION") (i) a registration statement under the Securities Act (the
"EXCHANGE OFFER REGISTRATION STATEMENT") registering an issue of senior
subordinated notes of the Company (the "EXCHANGE NOTES"), which are identical in
all material respects to the Offered Securities (except that the Exchange Notes
will not contain terms with respect to transfer restrictions and interest rate
increase) and (ii) under certain circumstances, a shelf registration statement
pursuant to Rule 415 under the Securities Act.
Capitalized terms used but not defined herein shall have the meanings given
to such terms in the Offering Document.
The Company hereby agrees with the Initial Purchasers as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, the Initial Purchasers that:
(a) A preliminary offering circular and an offering circular relating
to the Offered Securities has been prepared by the Company. Such
preliminary offering circular (the "PRELIMINARY OFFERING CIRCULAR") and
offering circular (the "OFFERING CIRCULAR"), as both are supplemented as of
the date of this Agreement, and any other document approved by the Company
for use in connection with the contemplated resale of the Offered
Securities, are hereinafter collectively referred to as the "OFFERING
DOCUMENT". On the date of this Agreement, the Offering Document does not
include any untrue 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 Initial Purchaser through Credit Suisse First Boston Corporation
("CSFBC") specifically for use therein, it being understood and agreed that
the only such information is that described as such in Section 7(b) hereof.
Except as disclosed in the Offering Document, on the date of this
Agreement, the Incorporated Documents and all subsequent reports
(collectively, the "EXCHANGE ACT REPORTS") which have been filed by the
Company with the Commission or sent to stockholders pursuant to the
Exchange Act when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder.
(b) The Company has been duly incorporated and is a validly 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 (as hereinafter defined),
taken as a whole (a "MATERIAL ADVERSE EFFECT").
(c) Each significant subsidiary of the Company within the meaning of
Rule 1-02(w) of Regulation S-X under the Securities Act is listed in
Schedule B hereto (each individually, a "SUBSIDIARY" and collectively, the
"SUBSIDIARIES"). Each Subsidiary of the Company has been duly incorporated
and is a validly existing corporation in good standing (where applicable)
under the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Offering Document; and each Subsidiary of the
Company is duly qualified to do business as a foreign corporation in good
standing (where applicable) 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 is fully paid and nonassessable; and, except as disclosed in the
Offering Document, the capital stock of each Subsidiary is owned by the
Company, directly or through Subsidiaries, and is owned free from material
liens, encumbrances and defects except for liens and encumbrances created
by or under the Senior Credit Facility (as defined in the Offering
Document).
(d) The Indenture has been duly authorized by the Company; the Offered
Securities have been duly authorized by the Company; and when the Offered
Securities are delivered and paid for pursuant to this Agreement and the
Indenture on the Closing Date, the Indenture will have been duly executed
and delivered (assuming due authorization, execution and delivery by the
Trustee), such Offered Securities will have been duly executed,
authenticated, issued and delivered (assuming authentication by the Trustee
in accordance with the provisions of the Indenture) and will conform in all
material respects to the description thereof contained in the Offering
Document; and the Indenture and such Offered Securities will constitute
valid and legally binding obligations of the Company (and the Offered
Securities will be entitled to the benefits in the Indenture), enforceable
in accordance with their terms, except to the extent that enforcement
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thereof may be limited by (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws, now or hereafter in
effect, relating to creditors' rights generally and (ii) general principles
of equity (regardless of whether enforcement is considered in a proceeding
in equity or at law).
(e) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or any Initial
Purchaser for a brokerage commission, finder's fee or other like payment in
connection with the issuance and sale of Offered Securities.
(f) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement in connection with the issuance and sale of
the Offered Securities by the Company except (i) those that have been
obtained or made; (ii) for filings and qualifications contemplated by the
Registration Rights Agreement; (iii) such as may be required under foreign
or state securities or blue sky laws; or (iv) such Exchange Act Reports as
may be required to be filed with the Commission after the Closing Date
pursuant to the Company's periodic reporting requirements under Sections 13
and 15(d) of the Exchange Act.
(g) The Registration Rights Agreement has been duly authorized by the
Company and will conform in all material respects to the description
thereof in the Offering Document and, when the Registration Rights
Agreement has been duly executed and delivered by the Initial Purchasers,
will constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws, now
or hereinafter in effect, relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(h) This Agreement has been duly authorized, executed and delivered by
the Company.
(i) The execution, delivery and performance of the Indenture,
Registration Rights Agreement and this Agreement, and the issuance and sale
of the Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (i) 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 (ii) any agreement (except
for such provisions in the Senior Credit Facility (as defined in the
Offering Document)) which shall be amended or consents obtained to avoid
any default thereunder) 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 (iii) the charter or by-laws of the Company or
any such Subsidiary except, in the case of clauses (i) and (ii) above, for
breaches, violations and defaults that would not have a Material Adverse
Effect or prevent or negate the effectiveness of the Indenture,
Registration Rights Agreement or this Agreement; and the Company has full
power and authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(j) 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 that would materially
affect the value thereof or materially interfere with the use made or to be
made thereof by them except, in each case, (i) as disclosed in the Offering
Document; (ii) such liens and encumbrances created by or under the Senior
Credit Facility (as defined in the Offering Document); or (iii) such as do
not have a Material Adverse Effect; and the Company and its Subsidiaries
hold any leased real or personal property under valid and enforceable
leases with such exceptions as are not material to the Company and its
Subsidiaries taken as a whole and would not materially interfere with the
use made or proposed to be made thereof by them except (i) as disclosed in
the Offering Document; or (ii) such as do not have a Material Adverse
Effect.
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(k) The Company and its Subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business in the manner presently conducted
by them, subject to such qualifications as may be set forth in the Offering
Document or except where the failure to so possess would not, singularly or
in the aggregate, have a Material Adverse Effect and have not received any
notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit that, if determined adversely to the
Company or any of its Subsidiaries, would have a Material Adverse Effect.
(l) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(m) 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 except where the failure to so own or possess would not,
singularly or in the aggregate, have a Material Adverse Effect 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 have a Material Adverse Effect.
(n) 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 or
wastes (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, to the knowledge of the Company, 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.
(o) Except as disclosed in the Offering Document, there are no pending
actions, suits or proceedings against or affecting the Company or any of
its Subsidiaries or, to the knowledge of the Company or its Subsidiaries,
to which any of their respective properties are subject or 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 or this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no such
actions, suits or proceedings are, to the Company's knowledge, threatened
or contemplated.
(p) The historical financial statements included in the Offering
Document present fairly the financial position of the Company and its
consolidated subsidiaries on the basis stated in the Offering Document as
of the dates shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the United
States applied on a consistent basis throughout the periods involved,
except as disclosed therein; and the pro forma financial information, and
the related notes thereto included in the Offering Document and the
assumptions used in preparing such pro forma financial statements are 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 historical financial statement amounts.
(q) 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),
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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.
(r) The Company is not an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be
registered under Section 8 of the United States Investment Company Act of
1940 (the "INVESTMENT COMPANY ACT"); and the Company is not and, after
giving effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Offering Document,
will not be an "investment company" required to be registered under the
Investment Company Act.
(s) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation system.
(t) Assuming the accuracy of the representations and warranties of the
Initial Purchasers set forth in this Agreement and compliance by the
Initial Purchasers with the provisions of this Agreement, it is not
necessary in connection with the offer, sale and delivery of the Offered
Securities to the Initial Purchasers and to each subsequent purchaser in
the manner contemplated by this Agreement and the Offering Document to
register the Offered Securities under the Securities Act or to qualify the
Indenture under the United States Trust Indenture Act of 1939, as amended
(the "TRUST INDENTURE ACT").
(u) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf (i) has, within the six-month period prior to
the date hereof, offered or sold in the United States or to any U.S. person
(as such 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 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 has not
entered and will not enter into any contractual arrangement with respect to
the distribution of the Offered Securities except for this Agreement.
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 Initial
Purchasers, and the Initial Purchasers agree, severally and not jointly, to
purchase from the Company, at a purchase price of 96% of the principal amount
thereof plus accrued interest from June 29, 2001 to the Closing Date (as
hereinafter defined), the respective principal amounts of the Offered Securities
set forth opposite the names of the several Initial 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
Initial Purchasers in Federal (same day) funds by wire transfer to an account of
the Company at a bank designated by the Company and acceptable to CSFBC or by
official Federal Reserve Bank check or checks drawn to the order of the Company
at the office of Cravath, Swaine & ▇▇▇▇▇ at 9:00 A.M. (New York time), on June
29, 2001, or at such other time not later than seven full business days
thereafter as CSFBC and the Company determine, such time being herein referred
to as the "CLOSING DATE", against delivery to the Trustee as custodian for DTC
of the Global Securities representing all of the Offered Securities. The Global
Securities will be made available for checking at the office of Cravath, Swaine
& ▇▇▇▇▇ at least 24 hours prior to the Closing Date.
4. REPRESENTATIONS BY INITIAL PURCHASERS; RESALE BY INITIAL PURCHASERS. (a)
Each Initial Purchaser severally represents and warrants to the Company that it
is an "ACCREDITED INVESTOR" within the meaning of Regulation D under the
Securities Act.
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(b) Each Initial 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 Initial Purchaser severally represents and agrees that it has offered
and sold the Offered Securities and will offer and sell the Offered
Securities as part of its distribution, only in accordance with Rule 144A
("RULE 144A") or Rule 903 under the Securities Act. Accordingly, neither
such Initial 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 Initial 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.
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Initial 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 Initial Purchaser or
affiliates of the other Initial Purchaser or with the prior written consent
of the Company.
(d) Each Initial Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities 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 Initial Purchaser
severally agrees, with respect to resales made in reliance on Rule 144A of
any of the Offered Securities, to deliver either with the confirmation of
such resale or otherwise prior to settlement of such resale a notice to the
effect that the resale of such Offered Securities has been made in reliance
upon the exemption from the registration requirements of the Securities Act
provided by Rule 144A.
(e) Each of the Initial Purchasers severally represents and agrees
that (i) it has not offered or sold and prior to the date six months after
the date of issue of the Offered Securities 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
complied and will comply with all applicable provisions of the Financial
Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in relation to the
Offered 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 Offered Securities to a person who is of a kind described in Article
11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements)
(Exemptions) Order 1996 or is a person to whom such document may otherwise
lawfully be issued or passed on.
5. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the several
Initial Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to amend or
supplement the Offering Document and will not effect such amendment or
supplementation without CSFBC's consent, which consent shall not be
unreasonably withheld or delayed. If, at any time prior to the completion
of the resale of the Offered Securities by the Initial 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, or if it is necessary at any such time to amend or supplement
the Offering Document to comply with any applicable law, the Company
promptly will notify CSFBC of such event and promptly will prepare, at its
own expense, an amendment or supplement which will correct such statement
or omission or effect such compliance. Neither CSFBC's consent to, nor the
Initial
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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 of this Agreement.
(b) The Company will furnish to CSFBC copies of the Offering Document
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as CSFBC reasonably requests, and the
Company will furnish to CSFBC on the date hereof three copies of the
Offering Document 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 CSFBC (and, upon request, to
each of the other Initial 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 Initial Purchasers all such documents.
(c) The Company will arrange with the cooperation of the Initial
Purchasers for the qualification of the Offered Securities for sale and the
determination of their eligibility for investment under the laws of such
jurisdictions in the United States and Canada as CSFBC designates and will
continue such qualifications in effect so long as required for the resale
of the Offered Securities by the Initial Purchasers provided that the
Company will not be required to qualify such Offered Securities if such
qualification would require the Company to as a foreign corporation or to
file a general consent to service of process or subject itself to taxation
in any such state.
(d) During the period of three years hereafter, the Company will
furnish to CSFBC and, upon request, to each of the other Initial
Purchasers, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to CSFBC and, upon request, to each of the other Initial
Purchasers (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under
the Exchange Act or mailed to stockholders, and (ii) from time to time,
such other information concerning the Company as CSFBC may reasonably
request.
(e) During the period of two years after the Closing Date, the Company
will, upon request, furnish to CSFBC, each of the other Initial Purchasers
and any holder of Offered Securities a copy of the restrictions on transfer
applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, the Company
will not, and will not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Offered Securities that
have been reacquired by any of them.
(g) During the period of two years after the Closing Date, 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.
(h) The Company will pay all expenses incidental to the performance of
its obligations under this Agreement, the Registration Rights Agreement and
the Indenture, including (i) the fees and expenses of the Trustee and its
professional advisers; (ii) all expenses in connection with the execution,
issue, authentication, packaging and initial delivery of the Offered
Securities and, as applicable, the Exchange Securities (as defined in the
Registration Rights Agreement), the preparation and printing of this
Agreement, the 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") of The
Nasdaq Stock Market, Inc. and any expenses incidental thereto, (iv) the
cost of any advertising approved in writing by the Company in connection
with the issue of the
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Offered Securities, (v) for any expenses (including reasonable 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 as in writing by the Company CSFBC 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 the
Offering Document (including any amendments and supplements thereto) to the
Initial Purchasers. The Company will reimburse the Initial Purchasers for
all reasonable travel expenses of the Initial Purchasers and the Company's
officers and employees (to the extent incurred by the Initial Purchasers)
and any other reasonable expenses of the Initial Purchasers and the Company
(to the extent incurred by the Initial Purchasers) in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities.
(i) In connection with the offering, until CSFBC shall have notified
the Company and the other Initial Purchasers of the completion of the
resale of the Offered Securities, neither the Company nor any of its
affiliates has or will, either alone or with one or more other persons, bid
for or purchase for any account in which it or any of its affiliates has a
beneficial interest any Offered Securities or attempt to induce any person
to purchase any Offered Securities; and neither it nor any of its
affiliates will make bids or purchases for the purpose of creating actual,
or apparent, active trading in, or of raising the price of, the Offered
Securities.
(j) For a period of 120 days after the date of the initial offering of
the Offered Securities by the Initial Purchasers, the Company will not,
without the prior written consent of CSFBC, which consent shall not be
unreasonably withheld, offer, sell, contract to sell, pledge, or otherwise
dispose of, directly or indirectly, 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, except issuances of (i)
Offered Securities pursuant to the conversion or exchange of convertible or
exchangeable securities or the exercise of warrants or options, in each
case outstanding on the date hereof, (ii) the Exchange Securities, (iii)
any debt securities of another entity acquired by the Company or assured by
the Company in connection with an acquisition of the assets of such entity,
which debt securities were (a) existing prior to such acquisition; and (b)
were not issued in connection with, or in contemplation of, such
acquisition), (iv) grants of employee stock options pursuant to the terms
of a plan in effect on the date hereof, issuances of Offered Securities
pursuant to the exercise of such options or issuances of Offered Securities
pursuant to the Company's dividend reinvestment plan. 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 to cease to be applicable to
the offer and sale of the Offered Securities.
6. CONDITIONS OF THE OBLIGATION OF THE INITIAL PURCHASERS. The obligation
of the several Initial Purchasers to purchase and pay for the Offered Securities
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The Initial Purchasers shall have received a letter, dated the
date of this Agreement, of PricewaterhouseCoopers LLP 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 of
the Company 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 American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of
8
Auditing Standards No. 71, Interim Financial Information, on the
unaudited financial statements of the Company 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 date, 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 (i) total current assets minus total current
liabilities or (ii) total shareholders' equity (or deficit), 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
statement of operations included in the Offering Document to the
closing date of the latest available statement of operations read
by such accountants there were any decreases, as compared with
the corresponding period of the previous year, in consolidated
net sales, in consolidated income (or loss) from continuing
operations, in the total amounts of consolidated net income (or
loss), except in all cases set forth in clauses (B) and (C) above
for changes, increases or decreases which are described in such
letter;
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Offering Document, as agreed upon with the Initial
Purchasers (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the
general accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation), with
the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter; and
(v) on the basis of a reading of the pro forma financial
statements, carrying out certain specified procedures, reading of
minutes, inquiries of certain officials of the Company who have
responsibility for financial and accounting matters and proving the
arithmetic accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial statements, nothing
came to their attention which caused them to believe that the pro
forma financial statements do not comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X under the Securities Act or that the pro forma
adjustments have not been properly applied to the historical amounts
in the compilation of such statements or on the pro forma basis
described in the notes thereto.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) a change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the judgment of CSFBC, be likely to prejudice
materially the success of the proposed issue, sale or distribution of the
Offered Securities, whether in the primary market or in respect of dealings
in the secondary market, or (ii) any change, or any development or event
involving a prospective
9
change, in the condition (financial or other), business, properties or
results of operations of the Company or its Subsidiaries taken as a whole
which, in the judgment of a majority in interest of the Initial Purchasers,
including CSFBC, is material and adverse and makes it impractical or
inadvisable to proceed with the completion of the offering or the sale of
and payment for the Offered Securities; (iii) 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); (iv) any suspension or limitation of trading
in securities generally on the New York Stock Exchange or any setting of
minimum prices for trading on such exchange, or any suspension of trading
of any securities of the Company on any exchange or in the over-the-counter
market; (v) any banking moratorium declared by U.S. Federal or New York
authorities; or (vi) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if,
in the judgment of a majority in interest of the Initial Purchasers,
including CSFBC, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
the completion of the offering or sale of and payment for the Offered
Securities.
(c) The Initial Purchasers shall have received an opinion, dated the
Closing Date, of ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., General Counsel for the Company, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware;
(ii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing as a foreign corporation
under the laws of each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or to
be in good standing would not result in a Material Adverse Effect and
except for jurisdictions not recognizing the legal concept of good
standing;
(iii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Offering Circular;
(iv) ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Corporation, a Delaware corporation
("▇▇▇▇▇-▇▇▇▇▇▇▇▇") has been duly incorporated and is validly existing
and in good standing under the laws of the State of Delaware;
(v) ▇▇▇▇▇-▇▇▇▇▇▇▇▇ is duly qualified as a foreign corporation to
transact business and is in good standing as a foreign corporation
under the laws of each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or to
be in good standing would not result in a Material Adverse Effect and
except for jurisdictions not recognizing the legal concept of good
standing;
(vi) ▇▇▇▇▇-▇▇▇▇▇▇▇▇ has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Offering Circular;
(vii) There is no action, suit or proceeding or, to the knowledge
of such counsel, inquiry or investigation before or by any court or
governmental agency or body, domestic or foreign, now pending or, to
the knowledge of such counsel, threatened, against or affecting the
Company or any of its subsidiaries, which would, individually or in
the aggregate, have a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
properties or assets thereof or the transactions contemplated by this
Agreement or the performance by the Company of its obligations
thereunder or under the Securities or in connection with the
transactions contemplated thereby;
10
(viii) The execution and delivery by the Company of the Offered
Securities and of each of the Transaction Documents, and the
performance by the Company of its obligations thereunder, will not (a)
to the best knowledge of such counsel, whether with or without the
giving of notice or lapse of time or both, conflict with or constitute
a breach of or a default under (except for Permitted Liens) or result
in the creation or imposition of any lien, charge or encumbrance
(except for Permitted Liens) upon any property or assets of the
Company or ▇▇▇▇▇-▇▇▇▇▇▇▇▇ pursuant to any material contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other material agreement or instrument to which the
Company or ▇▇▇▇▇-▇▇▇▇▇▇▇▇ is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or
▇▇▇▇▇-▇▇▇▇▇▇▇▇ is subject (except for such conflicts, breaches or
defaults, that would not have a Material Adverse Effect) and except
that such counsel does not express any opinion with respect to the
financial ratios or tests or any aspects of the financial condition or
results of operations of the Company and ▇▇▇▇▇-▇▇▇▇▇▇▇▇ to the extent
the determination of such conflict, breach or default requires
quantitative determination; and
(ix) Such counsel does not know of any legal or governmental
proceeding required to be described in the Offering Circular which are
not described as required or of any contracts or documents of a
character required to be described in the Offering Document which are
not described and filed as required.
(d) The Initial Purchasers shall have received an opinion, dated the
Closing Date, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Company to the effect, that:
(i) The Company has the corporate power and corporate authority
to own, lease and operate its properties and to conduct its business
as described in the Offering Circular;
(ii) The Company has the corporate power and corporate authority
to execute, deliver and perform all its obligations under this
Agreement, the Registration Rights Agreement, the Indenture and the
Offered Securities;
(iii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that (a) enforcement thereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity), and (b) the enforceability, under certain
circumstances, of provisions imposing a payment obligation pending the
ability of the Company to comply timely with its registration
obligations may be limited by applicable law;
(v) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent that (a) enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditor's rights generally and (ii)
general principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity), (b) the
enforceability, under certain circumstances, of provisions imposing a
payment obligation pending the ability of the Company to comply timely
with its registration obligations may be limited by applicable law,
and (c) the enforceability of indemnification and contribution
provisions may be limited by Federal and state securities laws or the
public policies underlying such laws;
(vi) The Offered Securities conform in all material respects to
the description thereof contained in the Offering Circular. The
issuance and sale of the Offered Securities have been duly authorized
11
by the Company, and the Offered Securities, when executed and
authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Initial Purchasers in accordance with
the terms of this Agreement, will be valid and binding obligations of
the Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except to the
extent that (a) enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity), and
(b) the enforceability, under certain circumstances, of provisions
imposing a payment obligation pending the ability of the Company to
comply timely with its registration obligations may be limited by
applicable law;
(vii) The execution and delivery by the Company of the Offered
Securities and each of the Transaction Documents to which it is a
party, and the consummation by the Company of the transactions
contemplated thereby, will not conflict with or result in any breach
or violation of, or constitute a default under, (A)(i) the Restated
Certificate of Incorporation or By-laws of the Company or (ii) the
certificate of incorporation or by-laws of ▇▇▇▇▇-▇▇▇▇▇▇▇▇ or (B) any
Applicable Law;
(viii) No consent, approval, authorization, order, decree,
registration or qualification of or filing with any court or
governmental authority or agency is required under Applicable Laws for
the valid authorization, issuance, sale and delivery of the Offered
Securities by the Company or is required for the valid execution and
delivery by the Company of the Transaction Documents and the
consummation by the Company of the transactions contemplated thereby;
(ix) Assuming (i) the accuracy of the representations and
warranties of the Company set forth in Sections 2(s) and (u) of this
Agreement and of the Initial Purchasers' representations and
warranties set forth in Section 4 of this Agreement, (ii) the due
performance by the Company of the covenants and agreements set forth
in Sections 2(s) and (u) of this Agreement and the due performance by
the Initial Purchasers of the covenants and agreements set forth in
Section 4(b) and (c) of this Agreement, (iii) the Initial Purchasers'
compliance with the offering and transfer procedures and restrictions
described in the Offering Circular, (iv) the accuracy of the
representations and warranties made in accordance with this Agreement
and the Offering Circular by purchasers to whom the Initial Purchasers
initially resell the Offered Securities and (v) that purchasers to
whom the Initial Purchasers initially resell the Offered Securities
receive a copy of the Offering Circular prior to or contemporaneously
with such sale, the offer, sale and delivery of the Offered Securities
to the Initial Purchasers in the manner contemplated by this Agreement
and the Offering Circular, and the initial resale of the Offered
Securities by the Initial Purchasers in the manner contemplated in the
Offering Circular and this Agreement, do not require registration
under the Securities Act and the Indenture does not require
qualification under the Trust Indenture Act of 1939, as amended, it
being understood that such counsel does not express any opinions to
any subsequent resale of any Offered Security; and
(x) The Company is not and, after giving effect to the issuance
and sale of the Offered Securities and the application of the proceeds
therefrom as described in the Offering Circular, will not be an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
Such counsel shall also state that such counsel has participated in
conferences with directors, officers and other representatives of the
Company, representatives of the independent public accountants for the
Company, representatives of the Initial Purchasers and representatives of
counsel for the Initial Purchasers, at which conferences the contents of
the Offering Document and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Offering Document, and has made no independent check or verification
thereof (except to the extent set forth in paragraph (iv) above with
respect to the description of the Offered Securities) on the basis of the
foregoing, no facts have come to such
12
counsel's attention which have caused such counsel to believe that the
Offering Document, as of its date and as of the Closing Date, contains an
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading (it being understood
that such counsel need express no view with respect to the financial
statements and the notes related thereto).
As used in Sections 6(c) and 6(d), the terms "TRANSACTION DOCUMENTS" shall
mean the Indenture, the Registration Rights Agreement and this Agreement and
"APPLICABLE LAWS" shall mean the laws of the State of New York, the Federal laws
of the United States and the General Corporation Law of the State of Delaware.
(e) The Initial Purchasers shall have received from Cravath, Swaine &
▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated
the Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities offered on such Closing Date, the
Offering Circular, the exemption from registration for the offer and sale
of the Offered Securities by the Company to the several Initial Purchasers
and the resales by the several Initial Purchasers as contemplated hereby
and other related matters as CSFBC may require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(f) The Initial 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 on and as of the Closing Date with the same effect as
if made on the Closing Date; the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date; and, subsequent to the date of
the most recent financial statements in the Offering Document, there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
Subsidiaries taken as a whole except as set forth in or contemplated by the
Offering Document or as described in such certificate.
(g) The Initial Purchasers shall have received a letter, dated the
Closing Date, of PricewaterhouseCoopers 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.
(h) The Senior Credit Facility shall have been amended and/or the
Company shall have obtained the necessary consents from the parties thereto
in order to avoid any default under the Senior Credit Facility in
connection with the issuance and sale of the Offered Securities.
(i) The Registration Rights Agreement shall have been duly authorized,
executed and delivered by the Company.
The Company shall furnish the Initial Purchasers with such conformed copies
of such opinions, certificates, letters and documents as the Initial Purchasers
reasonably request. Except for the condition set forth in subsection (h) of this
Section which may be waived by CSFBC only with the consent of the Company, CSFBC
may in its sole discretion waive compliance with any condition to the
obligations of the Initial Purchasers hereunder.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Initial Purchaser, its partners, directors and officers and
each person, if any, who controls such Initial Purchaser within the meaning of
Section 15 of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such Initial 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 required to be stated therein or
13
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, including any losses, claims,
damages or liabilities arising out of or based upon the Company's failure to
perform its obligations under Section 5(a) of this Agreement, and will reimburse
such Initial Purchaser for any legal or other expenses reasonably incurred by
such Initial Purchaser in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred;
PROVIDED, HOWEVER, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage, liability or actions in respect
thereof 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 Initial Purchaser through CSFBC specifically for use therein, it
being understood and agreed that the only such information consists of the
information described as such in subsection (b) below; PROVIDED FURTHER,
HOWEVER, that the foregoing indemnity with respect to the Preliminary Offering
Circular shall not inure to the benefit of the Initial Purchaser from whom the
person asserting any such losses, claims, damages, liabilities or actions in
respect thereof purchased Offered Securities to the extent that any such losses,
claims, damages, liabilities or actions in respect thereof of such Initial
Purchaser result from a fact that such Initial Purchaser sold Offered Securities
to a person in an initial resale to whom there was not sent or given, at or
prior to the written confirmation of the sale of such Offered Securities, a copy
of the Offering Circular (as amended or supplemented), if the Company had
previously furnished a copy of such amendments or supplements to such Initial
Purchaser prior to confirmation of the sale of such Offered Securities to such
person by such Initial Purchaser, and the losses, claims, damages, liabilities
or actions in respect thereof of such Initial Purchaser result from an untrue
statement or omission of a material fact contained in the Preliminary Offering
Circular, which was corrected in the Offering Circular.
(b) Each Initial 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 required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, 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 Initial Purchaser
through CSFBC specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that
the only such information furnished by any Initial Purchaser consists of
the following information in the Offering Document: paragraphs three, six,
nine and ten, and the third sentence of paragraph eight under the caption
"Plan of Distribution"; PROVIDED, HOWEVER, that the Initial Purchasers
shall not be liable for any losses, claims, damages or liabilities arising
out of or based upon the Company's failure to perform its obligations under
Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above, except to the
extent the indemnifying party is materially prejudiced by such failure. In
case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will
not be liable to such
14
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. In no event
shall an indemnifying party be liable for fees and expenses of more than
one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Initial Purchasers on the
other from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and the Initial Purchaser on the other in connection with
the statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Initial
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
Initial Purchasers from the Company under this Agreement. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company or the Initial 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), such Initial Purchaser shall not 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 Initial Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. The Initial Purchasers' obligations in this subsection (d) to
contribute are several in proportion to their respective purchase
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Initial Purchaser within the meaning of the Securities Act or
the Exchange Act; and the obligations of the Initial Purchasers under this
Section shall be in addition to any liability which the respective Initial
Purchasers may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act.
8. DEFAULT OF INITIAL PURCHASERS. If any Initial Purchaser or Purchasers
default in their obligations to purchase Offered Securities and the aggregate
principal amount of Offered Securities that such defaulting Initial Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, CSFBC may make arrangements satisfactory
to the Company for the purchase of such Offered Securities by other persons,
including any of the Initial Purchasers, but if no such arrangements are made by
the Closing Date, the non-defaulting Initial Purchasers shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Offered Securities that such defaulting Initial Purchasers agreed but failed
to purchase. If any Initial Purchaser or Purchasers so default and the aggregate
principal amount of Offered Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount of Offered Securities
and
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arrangements satisfactory to CSFBC and the Company for the purchase of such
Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Initial Purchaser or the Company, except as provided in Section
9. As used in this Agreement, the term "INITIAL PURCHASER" includes any person
substituted for a Initial Purchaser under this Section. Nothing herein will
relieve a defaulting Initial Purchaser from liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Initial 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 Initial Purchaser, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If for any reason the
purchase of the Offered Securities by the Initial Purchasers is not consummated,
the Company shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 5 and the respective obligations of the Company and
the Initial Purchasers pursuant to Section 7 shall remain in effect and if any
Offered Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Initial Purchasers is
not consummated for any reason other than solely because of the occurrence of
any event specified in clause (iv), (v) or (vi) of Section 6(b), the Company
will reimburse the Initial 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 Initial Purchasers will be mailed, delivered or telegraphed and confirmed
to the Initial Purchasers, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department - Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at Hexcel Corporation, Two
Stamford Plaza, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General
Counsel; PROVIDED, HOWEVER, that any notice to an Initial Purchaser pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such Initial
Purchaser.
11. 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 7, and no other person
will have any right or obligation hereunder, except that holders of Offered
Securities shall be entitled to enforce the agreements for their benefit
contained in the second and third sentences of Section 5(b) hereof against the
Company as if such holders were parties hereto.
12. REPRESENTATION OF INITIAL PURCHASERS. CSFBC will act for the several
Initial Purchasers in connection with this purchase, and any action under this
Agreement taken by CSFBC will be binding upon all of the Initial 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. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
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If the foregoing is in accordance with the Initial Purchasers'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Company and the Initial Purchasers in accordance with its terms.
Very truly yours,
HEXCEL CORPORATION,
by: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
The foregoing Purchase Agreement
is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
Acting on behalf of themselves and as the Representatives of
the several Initial Purchasers
CREDIT SUISSE FIRST BOSTON CORPORATION
by: /s/ ▇▇▇▇▇ ▇. Matt
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
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SCHEDULE A
PRINCIPAL AMOUNT OF
INITIAL PURCHASERS OFFERED SECURITIES
------------------ ------------------
Credit Suisse First Boston Corporation................. $ 65,000,000
Deutsche Banc ▇▇▇▇ ▇▇▇▇▇ Inc........................... $ 12,500,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.................................... $ 12,500,000
▇.▇. ▇▇▇▇▇▇ Securities Inc............................. $ 10,000,000
------------
Total......................................... $100,000,000
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SCHEDULE B
SUBSIDIARY PLACE OF INCORPORATION
---------- ----------------------
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Corporation Delaware
Hexcel Composites Limited England
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