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AXIOHM TRANSACTION SOLUTIONS, INC.
AXIOHM S.A.
DARDEL TECHNOLOGIES S.A.
AXIOHM IPB, INC.
STADIA COLORADO CORP.
COGNITIVE SOLUTIONS, INC.
___________________________________________
$120,000,000
9 3/4% Senior Subordinated Notes due 2007
___________________________________________
PURCHASE AGREEMENT
September 25, 1997
XXXXXX BROTHERS INC.
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AXIOHM TRANSACTION SOLUTIONS, INC.
$120,000,000
9 3/4% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
September 25, 0000
Xxx Xxxx, Xxx Xxxx
XXXXXX BROTHERS INC.
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies & Gentlemen:
Axiohm Transaction Solutions, Inc., a California corporation (formerly
DH Technology, Inc., a California corporation (collectively, the "COMPANY"),
proposes to issue and sell to Xxxxxx Brothers Inc. (the "INITIAL PURCHASER")
$120,000,000 aggregate principal amount of 9 3/4% Senior Subordinated Notes due
2007 (the "SENIOR SUBORDINATED NOTES"), subject to the terms and conditions set
forth herein. The Senior Subordinated Notes will be issued pursuant to an
indenture (the "INDENTURE"), to be dated the Closing Date (as defined below),
among the Company, the Guarantors (as defined below) and The Bank of New York,
as trustee (the "TRUSTEE").
The Senior Subordinated Notes and the New Senior Subordinated Notes
(as defined below) issuable in exchange therefor are collectively referred to
herein as the "NOTES." As used herein, the term "SUBSIDIARY" shall include each
entity listed on Schedule I hereto. The Notes will be guaranteed (the
"SUBSIDIARY GUARANTEES") by each of the entities listed on Schedule II hereto
(each, a "GUARANTOR"and collectively, the "GUARANTORS"). Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such terms
in the Indenture.
The Senior Subordinated Notes are being issued and sold in connection
with an Agreement and Plan of Merger (the "MERGER AGREEMENT"), dated as of July
14, 1997, by and among Axiohm S.A., a French corporation ("AXIOHM"), AX
Acquisition Corporation, a California corporation ("AX ACQUISITION") and DH
Technology, Inc., a California corporation, ("DH TECHNOLOGY"). The Merger
Agreement provides that AX Acquisition will offer (the "AXIOHM EXCHANGE OFFER")
to the shareholders of Axiohm the right to exchange their stock of Axiohm for a
portion of the shares of DH Technology acquired by AX Acquisition pursuant to a
tender offer (the "TENDER OFFER"). Simultaneously with the consummation of the
Axiohm Exchange Offer, Axiohm IPB, Inc., a Delaware corporation and a wholly
owned subsidiary of Axiohm ("IPB") will sell to DH Technology all of the
outstanding shares of AX Acquisition. Immediately following the events described
above, AX Acquisition will be merged with and into DH Technology (the "MERGER"),
with DH Technology being the surviving corporation of the Merger. Subsequent to
the consummation of the Merger, DH Technology will change its name to Axiohm
Transaction Solutions, Inc.
In order to provide a portion of the financing for the Tender Offer,
AX Acquisition entered into a $175 million senior secured credit facility (the
"TENDER FACILITY") and IPB issued $24 million in
liquidation preference of Cumulative Redeemable Exchangeable Senior Preferred
Stock (the "INTERIM PREFERRED STOCK"). The Company will use (i) the proceeds
from the sale of the Senior Subordinated Notes, (ii) borrowings under a
credit agreement (the "NEW CREDIT FACILITY") by and among the Company, the
Guarantors, the lenders named therein and Xxxxxx Commercial Paper Inc., (iii)
existing cash balances and (iv) a refund of prepaid interest and dividends
to: (a) refinance the Tender Facility, (b) redeem the Interim Preferred
Stock, (c) refinance outstanding indebtedness of DH Technology, (d) cashout
certain options owned by the shareholders of DH Technology, (e) purchase
shares of Axiohm and (f) pay transaction fees and expenses.
Holders (including subsequent transferees) of the Senior Subordinated
Notes will have the registration rights set forth in the registration rights
agreement (the "REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date,
in substantially the form of Exhibit A hereto, for so long as such Senior
Subordinated Notes constitute "TRANSFER RESTRICTED SECURITIES" (as defined in
the Registration Rights Agreement). Pursuant to the Registration Rights
Agreement, the Company and the Guarantors will agree to file with the Securities
and Exchange Commission (the "COMMISSION") under the circumstances set forth
therein, (i) a registration statement (the "EXCHANGE OFFER REGISTRATION
STATEMENT") under the Securities Act of 1933, as amended (the "SECURITIES ACT")
relating to the Company's 9 3/4% New Senior Subordinated Notes (the "NEW SENIOR
SUBORDINATED NOTES"), to be offered in exchange for the Senior Subordinated
Notes (such offer to exchange being referred to as the "EXCHANGE OFFER") and the
Subsidiary Guarantees thereof and (ii) a shelf registration statement pursuant
to Rule 415 under the Securities Act (the "SHELF REGISTRATION STATEMENT" and,
together with the Exchange Offer Registration Statement, the "REGISTRATION
STATEMENTS") relating to the resale by certain holders of the Senior
Subordinated Notes and to use their respective best efforts to cause such
Registration Statements to be declared and remain effective and usable for the
periods specified in the Registration Rights Agreement and to consummate the
Exchange Offer. This Agreement, the Indenture, the Notes, the Subsidiary
Guarantees and the Registration Rights Agreement are hereinafter sometimes
referred to collectively as the "OPERATIVE DOCUMENTS."
1. OFFERING MEMORANDUM. The Senior Subordinated Notes will be offered
and sold to the Initial Purchaser pursuant to one or more exemptions from the
registration requirements under the Securities Act. The Company and the
Guarantors have prepared a preliminary offering memorandum, dated September 16,
1997 (the "PRELIMINARY OFFERING MEMORANDUM"), and a final offering memorandum,
dated September 25, 1997 (the "OFFERING MEMORANDUM"), relating to the Senior
Subordinated Notes and the Subsidiary Guarantees. Copies of the Preliminary
Offering Memorandum have been, and copies of the Offering Memorandum will be,
delivered by the Company to the Initial Purchaser pursuant to the terms of this
Agreement. The Company hereby confirms that it has authorized the use of the
Preliminary Offering Memorandum and the Offering Memorandum in connection with
the offering and resale of the Senior Subordinated Notes by the Initial
Purchaser in accordance with Section 4 hereof (the "OFFERING").
Upon original issuance thereof, and until such time as the Company
determines (based upon an opinion of counsel, if the Company so requests) it to
be no longer required under the applicable requirements of the Securities Act,
the Senior Subordinated Notes (and all securities issued in exchange therefor or
in substitution thereof) shall bear the following legend:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE THIRD SENTENCE
HEREOF. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
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INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB") OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501 (A) (1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "IAI") OR (C) IT IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR
ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR 904 OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN IAI
THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION"
AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER
OF THIS NOTE IN VIOLATION OF THE FOREGOING."
2. REPRESENTATIONS AND WARRANTIES. The Company and the Guarantors
represent and warrant to the Initial Purchaser that:
(a) Each of the Preliminary Offering Memorandum and the Offering
Memorandum as of its date did not, and the Offering Memorandum as of the
Closing Date will not, and any amendment or supplement to them will not,
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
PROVIDED, HOWEVER, that the Company makes no representation or warranty as
to information contained in or omitted from the Preliminary Offering
Memorandum or the Offering Memorandum, as amended or supplemented, in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Initial Purchaser specifically for inclusion
in the Preliminary Offering Memorandum
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or the Offering Memorandum. No stop order preventing the use of the
Preliminary Offering Memorandum or the Offering Memorandum, or any
amendment or supplement thereto, or any order asserting that any of the
transactions contemplated by this Agreement are subject to the
registration requirements of the Securities Act, has been issued.
(b) Each of the Company and its Subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and is duly qualified to do
business and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or leasing of property or the conduct
of its business requires such qualification (except where the failure to be
so qualified and in good standing would not have a Material Adverse
Effect), and has all corporate power and authority necessary to own or hold
its properties and to conduct the business in which it is engaged as
described in the Preliminary Offering Memorandum and the Offering
Memorandum. As used herein, "MATERIAL ADVERSE EFFECT" means a material
adverse effect on the condition (financial or otherwise), results of
operations, business, earnings or prospects of the Company and its
Subsidiaries, taken as a whole, after giving effect to the Merger.
(c) Assuming the Senior Subordinated Notes are issued, sold and
delivered under the circumstances contemplated by the Offering Memorandum
and in this Agreement, that the representations and warranties and
covenants of the Initial Purchaser contained in Section 4 hereof are true,
correct and complete, and that the Initial Purchaser complies with its
covenants in Section 4 hereof, (i) registration under the Securities Act of
the Senior Subordinated Notes or the Subsidiary Guarantees or qualification
of the Indenture in respect of the Senior Subordinated Notes under the
Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), is not
required in connection with the offer and sale of the Senior Subordinated
Notes to the Initial Purchaser in the manner contemplated by the Offering
Memorandum or this Agreement and (ii) the initial resales of the Senior
Subordinated Notes by the Initial Purchaser on the terms and in the manner
set forth in the Offering Memorandum and Section 4 hereof are exempt from
the registration requirements of the Securities Act.
(d) Immediately upon the closing of the sale of the Senior
Subordinated Notes hereunder, the Company will redeem, for cash, all of the
outstanding Interim Preferred Stock issued by IPB and subsequently assumed
by DH Technology and will repay any amounts outstanding under the Tender
Facility.
(e) All of the outstanding shares of capital stock of the Company and
each of its Subsidiaries have been duly authorized, validly issued, and are
fully paid and nonassessable and were not issued in violation of any
preemptive or similar rights.
(f) Except as set forth on Schedule III hereto, all of the
outstanding capital stock or equity interests of each of the Company's
Subsidiaries is owned by the Company, directly or through another
Subsidiary, free and clear of any security interest, claim, lien,
limitation on voting rights, encumbrance or adverse interest of any nature
(each, a "LIEN"), except for Liens arising from the New Credit Facility.
Except as disclosed in the Offering Memorandum, there are not currently,
and will not be as a result of the Offering, any outstanding subscriptions,
rights, warrants, calls, commitments of sale or options to acquire, or
instruments convertible into or exchangeable for, any capital stock or
other equity interest of the Company or any of its Subsidiaries.
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(g) The Company and its Subsidiaries have all requisite corporate
power and authority to execute, deliver and perform their respective
obligations under this Agreement, and each of the other Operative Documents
to which they may be a party and to consummate the transactions
contemplated hereby and thereby, including, without limitation, the
corporate power and authority to issue, sell and deliver the Senior
Subordinated Notes and the Subsidiary Guarantees as provided herein and
therein.
(h) This Agreement has been duly authorized, executed and delivered
by the Company and each of the Guarantors and is a valid and binding
agreement of the Company and each of the Guarantors, enforceable against
the Company and each Guarantor in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or other similar laws and court decisions relating to or
affecting the rights of creditors generally and by general principles of
equity (whether considered in a proceeding in equity or at law).
(i) The Indenture has been duly authorized by the Company and each of
the Guarantors and, on the Closing Date, will have been validly executed
and delivered by the Company and each of the Guarantors. When the
Indenture has been duly executed and delivered by the Company and each of
the Guarantors, the Indenture will be a valid and binding agreement of the
Company, and each of the Guarantors, enforceable against the Company and
each Guarantor in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization
or other similar laws and court decisions relating to or affecting the
rights of creditors generally and by general principles of equity (whether
considered in a proceeding in equity or at law). On the Closing Date, the
Indenture will conform in all material respects to the requirements of the
Trust Indenture Act, and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder. The Offering
Memorandum contains an accurate summary, in all material respects, of the
terms of the Indenture.
(j) The Senior Subordinated Notes have been duly authorized for
issuance and sale to the Initial Purchaser by the Company pursuant to this
Agreement and, on the Closing Date, will have been validly executed and
delivered by the Company. When the Senior Subordinated Notes have been
issued, executed and authenticated in accordance with the terms of the
Indenture and delivered against payment therefor in accordance with the
terms hereof and thereof, the Senior Subordinated Notes will be valid and
binding obligations of the Company, enforceable against it in accordance
with their terms and entitled to the benefits of the Indenture, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or other similar laws and court decisions relating to or
affecting the rights of creditors generally and by general principles of
equity (whether considered in a proceeding in equity or at law). The
Offering Memorandum contains an accurate summary, in all material respects,
of the terms of the Senior Subordinated Notes.
(k) The New Senior Subordinated Notes have been duly authorized for
issuance by the Company and, when issued, executed and authenticated in
accordance with the terms of the Exchange Offer and the Indenture, the New
Senior Subordinated Notes will be valid and binding obligations of the
Company, enforceable against it in accordance with their terms and entitled
to the benefits of the Indenture, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, moratorium, reorganization or other
similar laws and court decisions relating to or affecting the rights of
creditors generally and by general principles of equity (whether considered
5
in a proceeding in equity or at law). The Offering Memorandum contains an
accurate summary, in all material respects, of the terms of the New Senior
Subordinated Notes.
(l) The Subsidiary Guarantees to be endorsed on the Senior
Subordinated Notes by each Guarantor have been duly authorized by each
Guarantor and, on the Closing Date, will have been duly executed and
delivered by each such Guarantor. When the Senior Subordinated Notes have
been issued, executed and authenticated in accordance with the Indenture
and delivered against payment therefor in accordance with the terms hereof
and thereof, the Subsidiary Guarantees of each Guarantor endorsed thereon
will be valid and binding obligations of such Guarantor, enforceable
against such Guarantor in accordance with their terms and entitled to the
benefits of the Indenture, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, moratorium, reorganization or other
similar laws and court decisions affecting the rights of creditors
generally and by general principles of equity (whether considered in a
proceeding in equity or at law). The Offering Memorandum contains an
accurate summary, in all material respects, of the terms of the Subsidiary
Guarantees to be endorsed on the Senior Subordinated Notes.
(m) The Subsidiary Guarantees to be endorsed on the New Senior
Subordinated Notes by each Guarantor have been duly authorized by each
Guarantor and, when issued, will have been duly executed and delivered by
each such Guarantor. When the New Senior Subordinated Notes have been
issued, executed and authenticated in accordance with the terms of the
Exchange Offer and the Indenture, the Subsidiary Guarantees of each
Guarantor endorsed thereon will be valid and binding obligations of such
Guarantor, enforceable against such Guarantor in accordance with their
terms and entitled to the benefits of the Indenture, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or other similar laws and court decisions affecting the
rights of creditors generally and by general principles of equity (whether
considered in a proceeding in equity or at law). The Offering Memorandum
contains an accurate summary, in all material respects, of the terms of the
Subsidiary Guarantees to be endorsed on the New Senior Subordinated Notes.
(n) The Registration Rights Agreement has been duly authorized by the
Company and each of the Guarantors and, on the Closing Date, will have been
duly executed and delivered by the Company and each of the Guarantors.
When the Registration Rights Agreement has been duly executed and delivered
by the Company and each of the Guarantors, the Registration Rights
Agreement will be a valid and binding agreement of the Company and each of
the Guarantors, enforceable against the Company and each Guarantor in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, moratorium, reorganization or other
similar laws and court decisions relating to or affecting the rights of
creditors generally and by general principles of equity (whether considered
in a proceeding in equity or at law). The Offering Memorandum contains an
accurate summary, in all material respects, of the terms of the
Registration Rights Agreement.
(o) The New Credit Facility has been duly authorized by the Company
and each of the Guarantors and, on the Closing Date, will have been duly
executed and delivered by the Company and each of the Guarantors. When the
New Credit Facility has been duly executed and delivered by the Company and
each of the Guarantors, the New Credit Facility will be a valid and binding
agreement of the Company and each of the Guarantors, enforceable against
the Company and each Guarantor in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or other similar laws and court decisions relating to or
6
affecting the rights of creditors generally and by general principles of
equity (whether considered in a proceeding in equity or at law).
(p) The execution, delivery and performance of this Agreement and the
other Operative Documents by the Company and each of the Guarantors,
compliance by the Company and each of the Guarantors with all the
provisions hereof and thereof, the issuance and sale of the Senior
Subordinated Notes by the Company, the issuance of the Subsidiary
Guarantees by the Guarantors and the consummation by the Company and the
Guarantors of the transactions contemplated hereby and thereby and as
described in the Offering Memorandum under the caption "Use of Proceeds,"
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, except as set forth
in the Offering Memorandum, any indenture, mortgage, deed of trust, lease,
loan or credit agreement or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound or to which any of their respective
properties or assets is subject, nor will any such actions result in any
violation of the provisions of the charter, by-laws, or other
organizational documents of the Company or any of its Subsidiaries or any
applicable law, statute or any rule, regulation, judgment, order or decree
of any court or governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries or any of their respective properties or
assets, or result in the imposition or creation of (or the obligation to
create or impose) a Lien under, any agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries or their respective properties or assets is bound;
and except for such consents, approvals, authorizations, other orders,
filings, qualifications or registrations as may be required under
applicable state securities laws in connection with the purchase and
distribution of the Senior Subordinated Notes by the Initial Purchaser or
as set forth in the Registration Rights Agreement, no consent, approval,
authorization, other order, filing, qualification or registration with, any
such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement or the other Operative Documents
by the Company and each of the Guarantors, compliance by the Company and
each of the Guarantors with all the provisions hereof and thereof, the
consummation of the transactions contemplated hereby and thereby and as
defined in the Offering Memorandum under the caption "Use of Proceeds," the
issuance and sale of the Senior Subordinated Notes by the Company and the
issuance of the Subsidiary Guarantees by the Guarantors.
(q) Neither the Company nor any of its Subsidiaries is in breach or
violation of any of the terms or provisions of any indenture, mortgage,
deed of trust, lease, loan agreement or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of their
respective properties or assets is subject, nor is the Company or any of
its Subsidiaries in violation of any provision of its charter, by-laws or
other organizational documents or any statute or any judgment, order rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its Subsidiaries or any of their
respective properties or assets (except in each case that could not
reasonably be expected to have a Material Adverse Effect).
(r) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its Subsidiaries is or could be a
party or to which any of their respective properties or assets is subject
which, if determined adversely to the Company or any of its Subsidiaries,
could reasonably be expected to have a Material Adverse Effect, otherwise
than as set forth in the Offering Memorandum.
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(s) Except for the Registration Rights Agreement and the registration
rights contemplated under the Merger Agreement, there are no contracts,
agreements or understandings between the Company or any Guarantor and any
person granting such person the right to require the Company or such
Guarantor to file a registration statement under the Securities Act with
respect to any securities of the Company, of any of its Subsidiaries or of
such Guarantor, owned, or to be owned, by such person or to require the
Company or such Guarantor to include such securities in any securities
being registered pursuant to any registration statement filed by the
Company under the Securities Act.
(t) Neither the Company nor any Subsidiary has sustained, since the
respective dates as of which information is given in the Offering
Memorandum other than as set forth in the Offering Memorandum (exclusive of
any amendments or supplements thereto subsequent to the date of this
Agreement), any material losses, liabilities, obligations (direct or
contingent) or interferences with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Offering Memorandum; and, since such date,
there have not been any material changes in the capital stock or long-term
debt of the Company or any of its Subsidiaries or any material adverse
changes in the condition (financial or otherwise), results of operations,
business, earnings or prospects of the Company or its Subsidiaries taken as
a whole (a "MATERIAL ADVERSE CHANGE"), or any developments that could
reasonably be expected to involve a prospective Material Adverse Change,
otherwise than as set forth or contemplated in the Offering Memorandum.
(u) The historical consolidated financial statements (including the
related notes) of the Company which appear in the Offering Memorandum
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act, present fairly the consolidated
financial position and results of operations of the entities purported to
be shown thereby, at the dates and for the periods indicated and have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, except as
described in the notes thereto. The PRO FORMA financial statements
included in the Preliminary Offering Memorandum and the Offering Memorandum
present fairly the historical and proposed transactions contemplated by
this Agreement and the other Operative Documents; and such PRO FORMA
financial statements comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") and the related
published rules and regulations thereunder, have been prepared on a basis
consistent with the historical consolidated financial statements of the
Company and its Subsidiaries, give effect to assumptions used in the
preparation thereof on a reasonable basis and in good faith and present
fairly the historical and proposed transactions contemplated by the
Preliminary Offering Memorandum and the Offering Memorandum. The other
financial and statistical information and data included in the Offering
Memorandum, historical and PRO FORMA, are accurately presented and prepared
on a basis consistent with the financial statements, historical and PRO
FORMA, included in the Offering Memorandum and the books and records of the
Company.
(v) KPMG Peat Marwick, who has certified the financial statements and
supporting schedules of the Company and whose report appears in the
Preliminary Offering Memorandum and the Offering Memorandum, are
independent public accountants with respect to the Company and the
Guarantors under Rule 101 of AICPA's Code of Professional Conduct and its
interpretations and rulings, during the periods covered by the financial
statements on which they reported and are contained in the Preliminary
Offering Memorandum and the Offering Memorandum.
8
(w) The Company and each of its Subsidiaries have good and marketable
title in fee simple or leasehold to all real property and good title to all
personal property owned by each of them, in each case free and clear of all
Liens except (i) such as arise under the New Credit Facility, (ii) such as
are described in the Offering Memorandum or permitted under the Indenture
or (iii) such as do not materially affect the value of such property and do
not materially interfere with the use made and proposed to be made of such
property by the Company and its Subsidiaries; and all real property and
buildings held under lease by the Company and each of its Subsidiaries are
held by them under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property by the Company and each of its
Subsidiaries. The Company and each of its Subsidiaries enjoy peaceful and
undisturbed possession under all leases to which they are a party as
lessee, except for such leases that, singly or in the aggregate, would not
have a Material Adverse Effect. No consent need be obtained from any
person with respect to any such lease in connection with the transactions
contemplated hereby and in the Offering Memorandum, except for such
consents as have been obtained. None of the properties or assets, the
value of which is reflected in the latest balance sheet referred to in
Section 2(u) hereof, is held under any lease (except for properties or
assets held under capital leases and operating leases). Except for such
assets, plants and facilities as are not material, singly or in the
aggregate, to the business of the Company and its Subsidiaries, taken as a
whole, all tangible assets, plants and facilities of the Company and its
Subsidiaries are in good condition and repair (ordinary wear and tear
excepted) and are adequate, in the reasonable opinion of the Company and
its Subsidiaries, for the uses to which they are being put or would be put
in the ordinary course of business. The Company and its Subsidiaries
maintain such insurance as may be required by law and such other insurance,
to the extent and against such hazards and liabilities, as is customarily
maintained by companies similarly situated (which may include self-
insurance in the same form as is customarily maintained by companies
similarly situated).
(x) Except as set forth in the Offering Memorandum, the Company and
its Subsidiaries own or possess, or can acquire on reasonable terms,
adequate rights to use all material patents, patent applications,
trademarks, service marks, tradenames, trademark registrations, service
xxxx registrations, copyrights and licenses necessary for the conduct of
their businesses, and the conduct of their businesses will not conflict
with any such rights of others (except in any such case for any failure to
own or possess, lack of ability to acquire, or conflict that could
reasonably be expected to have a Material Adverse Effect).
(y) There is (i) no material unfair labor practice complaint pending
against the Company or any of its Subsidiaries or, threatened against any
of them, before the National Labor Relations Board, any state or local
labor relations board or any foreign labor relations board, and no material
grievance or material arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company or any of
its Subsidiaries or threatened against any of them, (ii) no material
strike, labor dispute, slowdown or stoppage pending against the Company or
any of its Subsidiaries or threatened against any of them and (iii) except
as described in the Offering Memorandum, no union representation question
existing with respect to the employees of the Company and its Subsidiaries
which could reasonably be expected to have a Material Adverse Effect.
Neither the Company nor any of its Subsidiaries has violated (y) any
federal, state or local law or foreign law relating to discrimination in
hiring, promotion or pay of employees applicable to the Company or any of
its Subsidiaries or (z) any applicable wage or hour laws in any manner that
could reasonably be expected to have a Material Adverse Effect.
9
(z) The Company and each of its Subsidiaries is in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act, as amended, or the rules and regulations
promulgated thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company or any of its Subsidiaries would have any
liability; neither the Company nor any of its Subsidiaries has incurred or
expects to incur liability under (i) Title IV of ERISA with respect to the
termination of, or withdrawal from, any "pension plan" or (ii) Sections 412
or 4971 of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "CODE"); and each
"pension plan" for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified
in all material respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such qualification.
(aa) The Company and its Subsidiaries (i) make and keep accurate
books and records and (ii) maintain internal accounting controls which
provide reasonable assurance that: (A) transactions are executed in
accordance with management's general or specific authorizations;
(B) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (C) access to assets
is permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is compared
with the existing assets at reasonable intervals.
(ab) Neither the Company nor any of its Subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its Subsidiaries, has used any
corporate funds during the last five years for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political
activity; made any unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in violation of
any provision of the Foreign Corrupt Practices Act of 1977; or made any
bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(ac) Neither the Company nor any of its Subsidiaries is, and after
giving effect to the offering and sale of Senior Subordinated Notes and the
application of the net proceeds therefrom as described in the Offering
Memorandum will be (i) an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended, or (ii) a "holding company" or a "subsidiary company" or
an "affiliate" of a holding company within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(ad) Neither the Company nor any of its Subsidiaries has violated in
any material respect any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS").
(ae) There is no alleged liability, potential liability, (including,
without limitation, alleged or potential liability for investigatory costs,
cleanup costs, governmental response costs, natural resource damages,
property damages, personal injuries, penalties, constraints on operating
activities or any potential liabilities to third parties) of the Company or
any of its Subsidiaries arising out of, based on or resulting from (i) the
presence or release into the environment of any Hazardous Material (as
defined herein) at any location, whether or not owned by the Company or any
of its Subsidiaries which could reasonably be expected to have a Material
Adverse Effect or
10
(ii) any violation or alleged violation of any Environmental Law, which
alleged or potential liability is required to be disclosed in the
Offering Memorandum, other than as disclosed therein. The term
"HAZARDOUS MATERIAL" means (A) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, (B) any "hazardous waste" as defined by the
Resource Conservation and Recovery Act, as amended, (C) any petroleum
or petroleum product, (D) any polychlorinated biphenyl and (E) any
pollutant or contaminant or hazardous, dangerous or toxic chemical,
material waste or substance regulated under or within the meaning of
any other Environmental Law.
(af) Each of the Company and its Subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "AUTHORIZATION") of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including without
limitation, under any applicable Environmental Laws, as are necessary to
own, lease, license and operate their respective properties and to conduct
their businesses, except where the failure to have any such Authorization
or to make any such filing or notice could not reasonably be expected to
have a Material Adverse Effect. Each such Authorization is valid and in
full force and effect and each of the Company and its Subsidiaries is in
compliance with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction
with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or results
or, after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization; and such
Authorizations contain no restrictions that are burdensome to the Company
or any of its Subsidiaries; except where such failure to be valid and in
full force and effect or to be in compliance, the occurrence of any such
event or the presence of any such restriction could not reasonably be
expected to have a Material Adverse Effect.
(ag) When the Senior Subordinated Notes and the Subsidiary Guarantees
are issued and delivered pursuant to this Agreement, neither the Senior
Subordinated Notes nor the Subsidiary Guarantees thereof will be of the
same class (within the meaning of Rule 144A under the Securities Act) as
any security of the Company or any Guarantor listed on any national
securities exchange registered under Section 6 of the Exchange Act or
quoted on an automated inter-dealer quotation system.
(ah) None of the Company, the Guarantors or any affiliate (as defined
in Rule 501(b) of Regulation D under the Securities Act ("REGULATION D"))
of the Company or any Guarantor has, directly or through any agent
(provided that no representation is made as to the Initial Purchaser or any
person acting on its behalf), (i) sold, offered for sale, solicited offers
to buy or otherwise negotiated in respect of any security (as defined in
the Securities Act) that is or will be integrated with the offering and
sale of the Senior Subordinated Notes in a manner that would require the
registration of the Senior Subordinated Notes under the Securities Act or
(ii) engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D) in connection with the offering of the
Senior Subordinated Notes, including, but not limited to, articles, notices
or other communications published in any newspaper, magazine, or similar
medium or broadcast over television or radio, or any seminar or meeting
whose attendees have been invited by any general solicitation or general
advertising. No securities of the same class as the Senior Subordinated
Notes have been issued and sold by the Company within the six-month period
immediately prior to the date hereof.
11
(ai) Neither the Company nor any of its Subsidiaries has taken, nor
will any of them take, directly or indirectly, any action designed to, or
that might reasonably be expected to, violate or cause a violation of
Regulation M under the Securities Act.
(aj) Each of the Preliminary Offering Memorandum and the Offering
Memorandum as of its respective date and each amendment or supplement
thereto, as of its date, contains all the information specified in, and
meeting the requirements of Rule 144A(d)(4) under the Securities Act.
(ak) The Company does not intend to, nor does it believe that it
will, incur debts beyond its ability to pay such debts as they mature. The
present fair saleable value of the assets of the Company on a consolidated
basis exceeds the amount that will be required to be paid on or in respect
of the existing debts and other liabilities (including contingent
liabilities) of the Company on a consolidated basis as they become absolute
and matured. The assets of the Company on a consolidated basis do not
constitute unreasonably small capital to carry out the business of the
Company and its Subsidiaries, taken as a whole, as conducted or as proposed
to be conducted. Upon the issuance of the Senior Subordinated Notes the
present fair saleable value of the assets of the Company on a consolidated
basis will exceed the amount that will be required to be paid on or in
respect of the existing debts and other liabilities (including contingent
liabilities) of the Company on a consolidated basis as they become absolute
and matured. Upon the issuance of the Senior Subordinated Notes, the
assets of the Company on a consolidated basis will not constitute
unreasonably small capital to carry out its businesses as now conducted,
including the capital needs of the Company on a consolidated basis, taking
into account the projected capital requirements and capital availability.
(al) None of the Guarantors intends to, or believes that it will,
incur debts beyond its ability to pay such debts as they mature. The
present fair saleable value of the assets of each of the Guarantors on a
consolidated basis exceeds the amount that will be required to be paid on
or in respect of the existing debts and other liabilities (including
contingent liabilities) of each Guarantor on a consolidated basis as they
become absolute and matured. The assets of each Guarantor on a
consolidated basis do not constitute unreasonably small capital to carry
out the business of each Guarantor as conducted or as proposed to be
conducted. Upon the issuance of the Subsidiary Guarantees the present fair
saleable value of the assets of each Guarantor on a consolidated basis will
exceed the amount that will be required to be paid on or in respect of the
existing debts and other liabilities (including contingent liabilities) of
each Guarantor on a consolidated basis as they become absolute and matured.
Upon the issuance of the Subsidiary Guarantees, the assets of each
Guarantor on a consolidated basis will not constitute unreasonably small
capital to carry out its business as now conducted, including the capital
needs of each Guarantor on a consolidated basis, taking into account the
projected capital requirements and capital availability.
(am) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Securities
Act (i) has imposed (or has informed the Company or any Guarantor that it
is considering imposing) any condition (financial or otherwise) on the
Company's or any Guarantor's retaining any rating assigned as of the date
hereof to the Company, any Guarantor or any securities of the Company or
any Guarantor or (ii) has indicated to the Company or any Guarantor that it
is considering (a) the downgrading, suspension or withdrawal of, or any
review for a possible change that does not indicate the direction of the
possible change
12
in, any rating so assigned or (b) any change in the outlook for any rating
of the Company or any Guarantor.
(an) None of the Company, its Subsidiaries, the Guarantors or any of
its or their respective affiliates or any person acting on its or their
behalf has engaged or will engage in any "directed selling efforts" within
the meaning of Regulations S under the Securities Act with respect to the
Senior Subordinated Notes or the Subsidiary Guarantees.
(ao) Each certificate signed by any officer of the Company or any
Guarantor and delivered to the Initial Purchaser or counsel for the Initial
Purchaser shall be deemed to be a representation and warranty by the
Company or such Subsidiary Guarantor to the Initial Purchaser as to the
matters covered thereby.
(ap) Neither the Company nor any of its subsidiaries nor any agent
thereof acting on the behalf of them has taken, and none of them will take,
any action that might cause this Agreement or the issuance or sale of the
Senior Subordinated Notes or the transactions in connection with the Tender
Offer or the Merger to violate Regulation G (12 C.F.R. Part 207),
Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or
Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System.
(aq) The Senior Subordinated Notes offered and sold in reliance on
Regulation S have been and will be offered and sold only in offshore
transactions.
(ar) The sale of the Senior Subordinated Notes pursuant to Regulation
S is not part of a plan or scheme to evade the registration provisions of
the Securities Act.
(as) The Company and its Subsidiaries have complied with all of the
provisions of Florida H.B. 1771, codified as Section 517.075, of the
Florida statutes, and all regulations promulgated thereunder relating to
companies doing business with the Government of Cuba or with any person or
any affiliate located in Cuba.
The Company acknowledges that the Initial Purchaser and, for purposes
of the opinions to be delivered to the Initial Purchaser pursuant to Section 8
hereof, counsel to the Company and the Guarantors and counsel to the Initial
Purchaser, will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
3. PURCHASE OF SENIOR SUBORDINATED NOTES BY THE INITIAL PURCHASER. On
the basis of the representations, warranties and covenants contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell to the Initial Purchaser, and the Initial Purchaser agrees to purchase
from the Company, an aggregate principal amount of $120.0 million Senior
Subordinated Notes. The purchase price for the Senior Subordinated Notes shall
be $972.50 per $1,000.00 principal amount of Senior Subordinated Note.
4. SALE AND RESALE OF THE SENIOR SUBORDINATED NOTES BY THE INITIAL
PURCHASER. The Initial Purchaser represents and warrants to the Company that it
will offer the Senior Subordinated Notes for resale only upon the terms and
conditions set forth in this Agreement and in the Offering Memorandum. The
Initial Purchaser hereby represents and warrants to, and agrees with, the
Company that the Initial Purchaser (i) is a qualified institutional buyer
("QUALIFIED INSTITUTIONAL BUYER") as defined in Rule 144A under the Securities
Act, as such rule may be amended from time to time ("RULE 144A"), and/or an
13
institutional accredited investor ("ACCREDITED INVESTOR") as defined in Rule
501(a)(1),(2),(3) or (7) under Regulation D, (ii) is purchasing the Senior
Subordinated Notes pursuant to a private sale exempt from registration under the
Securities Act, (iii)(a) is not acquiring the Senior Subordinated Notes with a
view to distribution thereof or (b) with any present intention of offering or
selling any of the Senior Subordinated Notes in the case of each clause (a) and
(b) of this clause (iii) in a transaction that would violate the Securities Act
or the securities laws of any state of the United States or any other applicable
jurisdiction, (iv) will not solicit offers for, or offer or sell, the Senior
Subordinated Notes by means of any form of general solicitation or general
advertising within the meaning of Regulation D or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act and (v)
will solicit offers for the Senior Subordinated Notes only from, and will offer,
sell or deliver the Senior Subordinated Notes, as part of its initial offering,
only to (A) persons in the United States whom the Initial Purchaser reasonably
believes to be Qualified Institutional Buyers or, if any such person is buying
for one or more institutional accounts for which such person is acting as
fiduciary or agent, only when such person has represented to the Initial
Purchaser that each such account is a Qualified Institutional Buyer, to whom
notice has been given that such sale or delivery is being made in reliance on
Rule 144A, (B) to a limited number of other Accredited Investors that execute a
letter containing certain representations and agreements in the form attached as
Annex A to the Offering Memorandum, or (C) to persons permitted to purchase the
Senior Subordinated Notes in offshore transactions in reliance upon Regulation S
under the Securities Act (each, a "REGULATION S PURCHASER") (such persons
specified in clauses (A), (B), and (C) being referred to herein as the "ELIGIBLE
PURCHASERS") and in each case, in transactions under Rule 144A, Regulation D or
under Rule 903 of Regulation S in private sales exempt from registration under
the Securities Act (the "EXEMPT RESALES").
The Initial Purchaser further represents that (i) neither the Initial
Purchaser nor any of its affiliates or any person acting on its or their behalf
has engaged or will engage in any "directed selling efforts" within the meaning
of Regulation S with respect to the Senior Subordinated Notes or the Subsidiary
Guarantees; (ii) the Senior Subordinated Notes offered and sold by the Initial
Purchaser pursuant hereto in reliance on Regulation S have been and will be
offered and sold only in offshore transactions; (iii) the sale of the Senior
Subordinated Notes offered and sold by such Initial Purchaser pursuant hereto in
reliance on Regulation S is not part of a plan or scheme to evade the
registration provisions of the Act; (iv) the Initial Purchaser has not offered
or sold and will not offer or sell any Senior Subordinated Notes to persons in
the United Kingdom prior to the expiration of the period of six months from the
issue date of the Senior Subordinated Notes, 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 business 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; (v) it has complied and will comply with
all applicable provisions of the Financial Services Act of 1986 with respect to
anything done by it in relation to the Senior Subordinated Notes in, from or
otherwise involving the United Kingdom; (vi) 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 issuance of the Senior Subordinated Notes to a person who is
of a kind described in Article 11(3) of the Financial Services Act of 1986
(Investment Advertisements) (Exemptions) Order 1996 or is a person to whom the
document may otherwise lawfully be issued or passed on; and (vii) the Initial
Purchaser agrees that it will not offer, sell or deliver any of the Senior
Subordinated Notes in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws thereof,
and that it will take at its own expense whatever action is required to permit
its purchase and resale of the Senior Subordinated Notes in such jurisdictions;
and the Initial Purchaser understands that no action has been taken to permit a
public offering in any jurisdiction outside the United States where action would
be required for such purpose.
14
5. DELIVERY OF AND PAYMENT FOR THE SENIOR SUBORDINATED NOTES. Delivery
of and payment for the Senior Subordinated Notes shall be made at the office of
Xxxxxx & Xxxxxxx at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 a.m.,
New York City time, on October 2, 1997 or at such other date or place as shall
be determined by agreement between the Initial Purchaser and the Company. This
date and time of such delivery and payment are referred to herein as the
"CLOSING DATE." On the Closing Date, the Company shall deliver or cause to be
delivered, the Senior Subordinated Notes to the Initial Purchaser for the
account of the Initial Purchaser against payment to or upon the order of the
Company of the purchase price by wire transfer in federal (same-day) funds.
Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation of the
Initial Purchaser hereunder. Upon delivery, the Senior Subordinated Notes shall
be in definitive fully registered form and registered in such names and in such
denominations as the Initial Purchaser shall request in writing not less than
two full business days prior to the Closing Date. For the purpose of expediting
the checking and packaging of the Senior Subordinated Notes, the Company shall
make the Senior Subordinated Notes available for inspection by the Initial
Purchaser in New York, New York, not later than 2:00 p.m., New York City time,
on the business day prior to the Closing Date.
6. FURTHER AGREEMENTS OF THE COMPANY AND THE GUARANTORS. Each of the
Company and the Guarantors hereby agrees with the Initial Purchaser:
(a) To advise the Initial Purchaser promptly and, if requested by the
Initial Purchaser, confirm such advice in writing, (i) of the issuance by
any state securities commission of any stop order suspending the
qualification or exemption from qualification of any Senior Subordinated
Notes for offering or sale in any jurisdiction designated by the Initial
Purchaser pursuant to Section 6(h) hereof, or the initiation of any
proceeding by any state securities commission or any other federal or state
regulatory authority for such purpose and (ii) of the happening of any
event during the period referred to in Section 6(d) below that makes any
statement of a material fact made in the Preliminary Offering Memorandum or
the Offering Memorandum untrue or that requires any additions to or changes
in the Preliminary Offering Memorandum or the Offering Memorandum in order
to make the statements therein in the light of the circumstances under
which they were made not misleading. The Company and the Guarantors shall
use their best efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of any Senior Subordinated Notes
under any state securities or Blue Sky laws and, if at any time any state
securities commission or other federal or state regulatory authority shall
issue an order suspending the qualification or exemption of any Senior
Subordinated Notes under any state securities or Blue Sky laws, the Company
and the Guarantors shall use their best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time.
(b) To furnish to the Initial Purchaser and any persons identified by
the Initial Purchaser to the Company, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum and any
supplements and amendments thereto as the Initial Purchaser may reasonably
request.
(c) Prior to making any amendment or supplement to the Offering
Memorandum, the Company shall furnish a copy thereof to the Initial
Purchaser and counsel to the Initial Purchaser and will not effect any such
amendment or supplement to which the Initial Purchaser shall reasonably
object by notice to the Company after a reasonable period to review, which
shall not in any case be longer than one full business day after receipt of
such copy.
15
(d) During such period as in the opinion of counsel for the Initial
Purchaser an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchaser and in connection
with market-making activities of the Initial Purchaser for so long as any
Senior Subordinated Notes are outstanding, (i) not to make any amendment or
supplement to the Offering Memorandum of which the Initial Purchaser shall
not previously have been advised or to which the Initial Purchaser shall
reasonably object after being so advised and (ii) to prepare promptly upon
the Initial Purchaser's reasonable request, any amendment or supplement to
the Offering Memorandum which may be necessary or advisable in connection
with such Exempt Resales or such market-making activities.
(e) If during the time period referred to in Section 6(d) above, any
event shall occur or condition exist as a result of which it becomes
necessary, in the opinion of counsel for the Initial Purchaser or counsel
for the Company and the Guarantors, to amend or supplement the Offering
Memorandum in order that the Offering Memorandum will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in light of the
circumstances existing at the time it is delivered to a purchaser, or if it
is necessary to amend or supplement the Preliminary Offering Memorandum or
the Offering Memorandum to comply with applicable law, to promptly prepare
such amendment or supplement as may be necessary to correct such untrue
statement or omission or so that the Offering Memorandum, as so amended or
supplemented, will comply with applicable law and to furnish to the Initial
Purchaser and such other persons as the Initial Purchaser may designate
such number of copies as the Initial Purchaser may reasonably request.
(f) So long as any Senior Subordinated Notes remain outstanding and
are "Restricted Securities" within the meaning of Rule 144(a)(3) under the
Securities Act and during any period in which the Company and the
Guarantors are not subject to Section 13 or 15(d) of the Exchange Act, to
furnish to holders of the Senior Subordinated Notes and prospective
purchasers of Senior Subordinated Notes designated by such holders, upon
request of such holders or such prospective purchasers, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities
Act (the "RULE 144A INFORMATION").
(g) So long as any of the Notes are outstanding, to furnish to the
Initial Purchaser as soon as available copies of all reports or other
communications furnished by the Company or any of the Guarantors to its
security holders or furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company or any of the Guarantors is listed and such other publicly
available information concerning the Company and/or its Subsidiaries as the
Initial Purchaser may reasonably request.
(h) Prior to the sale of all Senior Subordinated Notes pursuant to
Exempt Resales as contemplated hereby, to cooperate with the Initial
Purchaser and counsel for the Initial Purchaser in connection with the
registration or qualification of the Senior Subordinated Notes for offer
and sale to the Initial Purchaser and pursuant to Exempt Resales under the
securities or Blue Sky laws of such jurisdictions as the Initial Purchaser
designates and to continue such qualifications in effect so long as
required for the Exempt Resales and to file such consents to service of
process or other documents as may be necessary in order to effect such
registration or qualification. The Company will also arrange for the
determination of the eligibility for investment of the Senior Subordinated
Notes under the laws of such jurisdictions as the Initial Purchaser
reasonably requests. Notwithstanding the foregoing, the Company and the
Guarantors shall not be obligated to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to file a general
16
consent to service of process in any jurisdiction or subject itself to
income taxation as doing business in any such jurisdiction other than as to
matters and transactions relating to the Preliminary Offering Memorandum,
the Offering Memorandum or Exempt Resales, in any jurisdiction in which it
is not now so subject.
(i) So long as any of the Notes are outstanding, (i) to mail and make
generally available as soon as practicable after the end of each fiscal
year to the record holders of the Notes a financial report of the Company
and its Subsidiaries on a consolidated basis, all such financial reports to
include a consolidated balance sheet, a consolidated statement of
operations, a consolidated statement of cash flows and a consolidated
statement of shareholders' equity as of the end of and for such fiscal
year, together with comparable information as of the end of and for the
preceding year, certified by the Company's independent public accountants
and (ii) to mail and make generally available as soon as practicable after
the end of each quarterly period (except for the last quarterly period of
each fiscal year) to such holders, a consolidated balance sheet, a
consolidated statement of operations and a consolidated statement of cash
flows as of the end of and for such period, and for the period from the
beginning of such year to the close of such quarterly period, together with
comparable information for the corresponding periods of the preceding year.
(j) To use all reasonable commercial efforts to permit the Senior
Subordinated Notes to be designated Private Offerings, Resales and Trading
through Automated Linkages Market ("PORTAL") securities in accordance with
the rules and regulations adopted by the National Association of Securities
Dealers, Inc. (the "NASD") relating to trading in the PORTAL market.
(k) To use all reasonable efforts to obtain the approval of The
Depository Trust Company ("DTC") for "book-entry" transfer of the Notes,
and to comply with all of its agreements set forth in the representation
letters of the Company and the Guarantors to DTC relating to the approval
of the Notes by DTC for "book-entry" transfer.
(l) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise transfer or dispose of any debt securities of the Company or any
Guarantor or any warrants, rights or options to purchase or otherwise
acquire debt securities of the Company or any Guarantor substantially
similar to the Notes and the Subsidiary Guarantees (other than (i) the
Notes and the Subsidiary Guarantees and (ii) commercial paper issued in the
ordinary course of business), without the prior written consent of the
Initial Purchaser.
(m) Not to, and will cause its affiliates not to, sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) in a transaction that could be
integrated with the sale of the Senior Subordinated Notes to the Initial
Purchaser or pursuant to Exempt Resales in a manner which would require the
registration under the Securities Act of the Senior Subordinated Notes.
(n) Except following the effectiveness of any Registration Statement
and except for such offers as may be made as a result of, or subsequent to,
filing such Registration Statement or amendments thereto prior to the
effectiveness thereof, not to, and will cause its affiliates not to,
solicit any offer to buy or offer to sell the Senior Subordinated Notes by
means of any form of general solicitation or general advertising (as those
terms are used in Regulation D) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act.
17
(o) To apply the net proceeds from the sale of the Senior
Subordinated Notes as set forth under the caption "Use of Proceeds" in the
Offering Memorandum.
(p) To take such steps as shall be necessary to ensure that neither
the Company nor any of its Subsidiaries shall become an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, or (ii) a "holding company" or a "subsidiary company" or an
"affiliate" of a holding company within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(q) Not to take, not to permit any of its Subsidiaries to take and to
use its best efforts to prevent its affiliates from taking, directly or
indirectly, any action designed to, or that might reasonably be expected
to, cause or result in stabilization or manipulation of the price of any
security of the Company or any of its Subsidiaries to facilitate the sale
or resale of the Senior Subordinated Notes. Except as permitted by the
Securities Act, the Company and its Subsidiaries will not distribute any
(i) preliminary offering memorandum, including, without limitation, the
Preliminary Offering Memorandum, (ii) offering memorandum, including,
without limitation, the Offering Memorandum or (iii) other offering
material in connection with the offering and sale of the Senior
Subordinated Notes.
(r) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of any Notes.
(s) To cause the Exchange Offer to be made in the appropriate form to
permit New Senior Subordinated Notes and guarantees thereof by the
Guarantors registered pursuant to the Securities Act to be offered in
exchange for the Senior Subordinated Notes and the Subsidiary Guarantees
and to comply with all applicable federal and state securities laws in
connection with the Exchange Offer.
(t) To comply with the agreements in the Indenture, the Registration
Rights Agreement and the other Operative Documents.
(u) To cause Axiohm S.A. and Dardel Technologies S.A. to execute the
Purchase Assumption and Registration Rights Assumption in the form attached
hereto as Exhibit B and Exhibit C, respectively, upon the election by each
such entity to be treated as a "pass-through" entity for United States
federal income tax purposes.
(v) To do all things required or necessary to be done or performed
under this Agreement by it prior to the Closing Date and to satisfy the
closing conditions set forth in Section 8 hereof.
7. EXPENSES. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of the obligations of the Company
and the Guarantors under this Agreement, including: (i) the fees, disbursements
and expenses of counsel to the Company and the Guarantors and accountants of the
Company and the Guarantors in connection with the sale and delivery of the
Senior Subordinated Notes to the Initial Purchaser and pursuant to Exempt
Resales, and all other fees or expenses in connection with the preparation,
printing, filing and distribution of the Preliminary Offering Memorandum, the
Offering Memorandum and all amendments and supplements to any of the foregoing
(including financial statements) specified in Section 6(b) and 6(d) prior to or
during the period specified in Section 6(d), including the mailing and
delivering of copies thereof to the Initial Purchaser and persons designated by
it in the
18
quantities specified herein; (ii) all costs and expenses related to the
transfer and delivery of the Senior Subordinated Notes to the Initial
Purchaser and pursuant to the Exempt Resales, including any transfer or other
taxes payable thereon; (iii) all expenses in connection with the registration
or qualification of the Senior Subordinated Notes and the Subsidiary
Guarantees for offer and sale under the securities or Blue Sky laws of the
several states and all costs of producing any preliminary and supplemental
Blue Sky memoranda in connection therewith (including the filing fees and
reasonable fees and disbursements of counsel for the Initial Purchaser in
connection with such registration or qualification and memoranda relating
thereto); (iv) the cost of printing certificates representing the Senior
Subordinated Notes and the Subsidiary Guarantees, (v) all expenses and
listing fees in connection with the application for quotation of the Senior
Subordinated Notes on PORTAL; (vi) the fees and expenses of the Trustee and
the Trustee's counsel in connection with the Indenture, the Notes and the
Subsidiary Guarantees; (vii) the costs and expenses of any transfer agent,
registrar and/or depositary (including DTC); (viii) any fees charged by
rating agencies for the rating of the Notes; (ix) all costs and expenses of
the Exchange Offer and any Registration Statement, as set forth in the
Registration Rights Agreement; and (x) all other costs and expenses incident
to the performance of the obligations of the Company and the Guarantors
hereunder for which provision is not otherwise made in this Section.
8. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The obligations of the
Initial Purchaser to purchase the Senior Subordinated Notes under this Agreement
are subject to the satisfaction of each of the following:
(a) The Initial Purchaser shall not have discovered and disclosed to
the Company and the Guarantors on or prior to such Closing Date that the
Preliminary Offering Memorandum or the Offering Memorandum or any amendment
or supplement thereto contains an untrue statement of a fact which, in the
opinion of Xxxxxx & Xxxxxxx, counsel for the Initial Purchaser, is material
or omits to state a fact which, in the opinion of such counsel, is material
and is necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) All of the representations and warranties of the Company and the
Guarantors contained in this Agreement shall be true and correct on the
date hereof and on the Closing Date with the same force and effect as if
made on and as of the date hereof and the Closing Date, respectively. The
Company shall have performed or complied with all of the agreements herein
contained and required to be performed or complied with by it at or prior
to the Closing Date.
(c) The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchaser not later than 10:00 a.m., New York
City time, on the day following the date of this Agreement or at such later
date and time as to which the Initial Purchaser may agree, and no stop
order suspending the qualification or exemption from qualification of the
Senior Subordinated Notes in any jurisdiction referred to in Section 6(h)
shall have been issued and no proceeding for that purpose shall have been
commenced or shall be pending or threatened.
(d) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the issuance of the
Senior Subordinated Notes; no action, suit or proceeding shall have been
commenced and be pending against or affecting or threatened against, the
Company or any Guarantor before any court or arbitrator or any governmental
body, agency or official that, if adversely determined, could reasonably be
expected to have a Material Adverse Effect; and no stop order shall have
been issued preventing the use of the Offering Memorandum, or any amendment
or supplement thereto, or which could reasonably be expected to have a
Material Adverse Effect.
19
(e) Since the dates as of which information is given in the Offering
Memorandum other than as set forth on the Offering Memorandum (exclusive of
any amendments or supplements thereto subsequent to this Agreement), (i)
there shall not have occurred any events or circumstances that would have
any Material Adverse Effect, or any development that is reasonably likely
to result in a Material Adverse Effect, in the capital stock or the
long-term debt, or material increase in the short-term debt, of the Company
or any of its Subsidiaries from that set forth in the Offering Memorandum,
(ii) no dividend or distribution of any kind shall have been declared, paid
or made by the Company or any of its Subsidiaries on any class of its
capital stock and (iii) neither the Company nor any of its Subsidiaries
shall have incurred any liabilities or obligations, direct or contingent,
that are material, individually or in the aggregate, to the Company and its
Subsidiaries, taken as a whole, and that are required to be disclosed on a
balance sheet or notes thereto in accordance with generally accepted
accounting principles and are not disclosed on the latest balance sheet or
notes thereto included in the Offering Memorandum. Since the date hereof
and since the dates as of which information is given in the Offering
Memorandum, there shall not have occurred any Material Adverse Effect in
the properties, business, earnings, management, results of operations,
condition (financial or otherwise), affairs or prospects of the Company.
(f) The Initial Purchaser shall have received a certificate, dated
the Closing Date, signed on behalf of the Company by (i) the Chief
Executive Officer, President or any Vice President and (ii) a principal
financial or accounting officer of the Company, in form and substance
reasonably satisfactory to the Initial Purchaser, confirming, as of the
Closing Date, the matters set forth in paragraphs (b), (c), (d) and (e) of
this Section 8 and that, as of the Closing Date, the obligations of the
Company to be performed hereunder on or prior thereto have been duly
performed.
(g) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Senior Subordinated
Notes, the Subsidiary Guarantees, the Indenture, the Registration Rights
Agreement, the Offering Memorandum, the other Operative Documents and all
other legal matters relating to this Agreement and the transactions
contemplated hereby and thereby, shall be satisfactory in all material
respects to counsel for the Initial Purchaser, and the Company and its
Subsidiaries shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon
such matters.
(h) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation,
counsel for the Company and the Guarantors, shall have furnished to the
Initial Purchaser its written opinion, as counsel to the Company, addressed
to the Initial Purchaser and dated the Closing Date, in the form attached
as Exhibit D hereto.
(i) XxXxxxxxx, Will & Xxxxx, counsel to IPB, shall have furnished to
the Initial Purchaser its written opinion, as counsel to IPB, addressed to
the Initial Purchaser and dated the Closing Date, in the form attached as
Exhibit E hereto.
(j) Sparks Xxx, P.C., counsel to Stadia, shall have furnished to the
Initial Purchaser its written opinion, as counsel to Stadia, addressed to
the Initial Purchaser and dated the Closing Date, in the form attached as
Exhibit F hereto.
(k) The Initial Purchaser shall have received letters addressed to
the Initial Purchaser and dated the Closing Date to the effect that the
Initial Purchaser may rely on the opinion to the same extent as if it were
originally addressed to the Initial Purchaser from each of (i) Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel to the Company
and Cognitive, (ii)
20
XxXxxxxxx, Will & Xxxxx, counsel to the Company and IPB, (iii)
Xxxxxxxxx & May, counsel to Axiohm S.A., (iv) Xxxxxx Xxxxxx,
Esq., counsel to DH Technology pty, (v) Xxxx and Xxxxx, counsel to DH
Technology plc., and (vi) Sparks Xxx P.C., counsel to Stadia, with respect
to the opinions delivered by such firms pursuant to the New Credit
Facility.
(l) The Initial Purchaser shall have received an opinion, dated the
Closing Date, in form and substance reasonably satisfactory to the Initial
Purchaser, of Xxxxxx & Xxxxxxx, counsel to the Initial Purchaser, covering
such matters as are customarily covered in such opinions.
(m) On the Closing Date, the Initial Purchaser shall have received a
solvency opinion, in the form contemplated by the New Credit Facility, by
an independent third party addressed to the Trustee among others and
reasonably satisfactory to the Initial Purchaser as to the solvency of the
Company and its Subsidiaries following the consummation of the transactions
contemplated herein and by the Merger Agreement.
(n) In addition to the opinions of counsel required to be delivered
pursuant to paragraphs (h), (i), (j), (l) and (m) of this Section 8, the
Initial Purchaser shall receive all of the opinions to be delivered by the
firms stated in clause (k) above pursuant to the New Credit Facility.
(o) With respect to the letter of KPMG Peat Marwick delivered to the
Initial Purchaser concurrently with the execution of this Agreement (the
"INITIAL LETTER"), the Company and the Guarantors shall have furnished to
the Initial Purchaser a letter (as used in this paragraph, the "BRING-DOWN
LETTER") of such accountant, addressed to the Initial Purchaser and dated
such Closing Date (i) confirming that they are independent public
accountants under the guidelines of the AICPA, (ii) stating, as of the date
of the bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Offering Memorandum, as of a date not more than
two days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letter.
(p) With respect to the letter of Price Waterhouse delivered to the
Initial Purchaser concurrently with the execution of this Agreement (the
"INITIAL LETTER"), the Company and the Guarantors shall have furnished to
the Initial Purchaser a letter (as used in this paragraph, the "BRING-DOWN
LETTER") of such accountant, addressed to the Initial Purchaser and dated
such Closing Date (i) confirming that they are independent accountants
under the guidelines of the AICPA, (ii) stating, as of the date of the
bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Offering Memorandum, as of a date not more than
two days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letter.
(q) The Company, the Guarantors and the Trustee shall have entered
into the Indenture and the Initial Purchaser shall have received
counterparts, conformed as executed, thereof.
(r) The Company, the Guarantors and the Initial Purchaser shall have
entered into the Registration Rights Agreement and the Initial Purchaser
shall have received counterparts, conformed as executed, thereof.
21
(s) The Company and the Guarantors shall have entered into the New
Credit Facility (the form and substance of which shall be reasonably
acceptable to the Initial Purchaser) and the Initial Purchaser shall have
received counterparts, conformed as executed, thereof and of all other
documents and agreements entered into in connection therewith.
(t) On the Closing Date, the Initial Purchaser shall have received
evidence satisfactory to the Initial Purchaser that the indebtedness under
the Tender Facility and the Interim Preferred Stock, in each case has been
repaid in full.
(u) On the Closing Date, the Initial Purchaser shall have received
evidence satisfactory to the Initial Purchaser that certain options held by
shareholders of DH Technology were cashed out as described in the Offering
Memorandum.
(v) Each condition to the closing contemplated by the Merger
Agreement shall have been satisfied or waived. There shall exist at and as
of the Closing Date (after giving effect to the transactions contemplated
by this Agreement and the New Credit Facility) no conditions that would
constitute a default (or an event that with notice or the lapse of time, or
both, would constitute a default) under the Merger Agreement. Prior to the
Closing Date, the Merger shall have been consummated on terms that conform
in all material respects to the description thereof in the Offering
Memorandum and the Initial Purchaser shall have received evidence
satisfactory to the Initial Purchaser of the consummation thereof. The
Company shall deliver to the Initial Purchaser copies of all of filings
made with any governmental entity (including, without limitation, the
United States Patent and Trademark Office, the United States Copyright
Office and the Department of Justice Antitrust Division) in order to effect
the Merger, as certified by an appropriate official thereof, on the Closing
Date. The Company shall deliver to the Initial Purchaser, as soon as
possible, copies of the certificates of ownership required to be filed
under California law in order to effect the Merger, as certified by the
Secretary of State of the State of California.
(w) Each condition to the initial borrowing under the New Credit
Facility (other than the issuance and sale of the Senior Subordinated Notes
pursuant hereto) shall have been satisfied or waived. There shall exist at
and as of the Closing Date (after giving effect to the transactions
contemplated by this Agreement) no conditions that would constitute a
default (or an event that with notice or the lapse of time, or both, would
constitute a default) under the New Credit Facility. At or prior to the
Closing Date, the closing under the New Credit Facility shall have been
consummated on terms that conform in all material respects to the
description thereof in the Offering Memorandum and the Initial Purchaser
shall have received evidence satisfactory to the Initial Purchaser of the
consummation thereof.
(x) (i) Neither the Company nor any of its Subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Offering Memorandum losses or interferences with their
businesses, taken as a whole, from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Offering Memorandum or (ii) since such date there
shall not have been any change in the capital stock or long-term debt of
the Company or any of its Subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its Subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Offering Memorandum, the effect of
which, in any such case described in clause (i) or (ii), is, in the
judgment of the Initial Purchaser, so material and adverse
22
as to make it impracticable or inadvisable to proceed with the Offering
or the delivery of the Senior Subordinated Notes being delivered on the
Closing Date on the terms and in the manner contemplated herein and in
the Offering Memorandum.
(y) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or The Nasdaq National Market or
in the over-the-counter market shall have been suspended or materially
limited, or minimum prices shall have been established on such exchange by
the Commission, or by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United States or
(iv) there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such) as
to make it, in the judgment of the Initial Purchaser, impracticable or
inadvisable to proceed with the Offering or delivery of the Senior
Subordinated Notes being delivered on the Closing Date on the terms and in
the manner contemplated herein and in the Offering Memorandum.
(z) On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor shall any notice have
been given of any potential or intended downgrading, suspension or
withdrawal of, or of any review (or of any potential or intended review)
for a possible change that does not indicate the direction of the possible
change in, any rating of the Company or any Guarantor or any securities of
the Company or any Guarantor (including, without limitation, the placing of
any of the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any
"nationally recognized statistical rating organization" as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there
shall not have occurred any change, nor shall notice have been given of any
potential or intended change, in the outlook for any rating of the Company
or any Guarantor by any such rating organization and (iii) no such rating
organization shall have given notice that it has assigned (or is
considering assigning) a lower rating to the Notes than that on which the
Notes were marketed.
(aa) Xxxxxx & Xxxxxxx shall have been furnished with such documents,
in addition to those set forth above, as they may reasonably require for
the purpose of enabling them to review or pass upon the matters referred to
in this Section 8 and in order to evidence the accuracy, completeness or
satisfaction in all material respects of any of the representations,
warranties or conditions herein contained.
(ab) Prior to the Closing Date, the Company shall have furnished to
the Initial Purchaser such further information, certificates and documents
as the Initial Purchaser may reasonably request.
All opinions, certificates, letters and other documents required by
this Section 8 to be delivered by the Company will be in compliance with the
provisions hereof only if they are reasonably satisfactory in form and substance
to the Initial Purchaser. The Company will furnish the Initial Purchaser with
such conformed copies of such opinions, certificates, letters and other
documents as it shall reasonably request.
23
9. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and each Guarantor, jointly and severally, shall
indemnify and hold harmless the Initial Purchaser, its directors, officers
and employees and each person, if any, who controls the Initial Purchaser
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages,
liabilities, judgments and actions, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability, judgment or action relating to purchases and sales of Senior
Subordinated Notes), to which the Initial Purchaser, its directors,
officers, employees or controlling persons may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability, judgment or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained
(A) in any Preliminary Offering Memorandum or the Offering Memorandum or in
any amendment or supplement thereto or (B) in any blue sky application or
other document prepared or executed by the Company and the Guarantors (or
based upon any written information furnished by the Company and the
Guarantors) specifically for the purpose of qualifying any or all of the
Senior Subordinated Notes under the securities laws of any state or other
jurisdiction (any such application, document or information being
hereinafter called a "BLUE SKY APPLICATION") or (C) any Rule 144A
Information provided by the Company and any Guarantor to any holder or
prospective purchaser of Senior Subordinated Notes pursuant to Section 6(f)
or (ii) the omission or alleged omission to state in any Preliminary
Offering Memorandum or the Offering Memorandum, or in any amendment or
supplement thereto, or in any Blue Sky Application or in any Rule 144A
Information any material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall reimburse the Initial
Purchaser and each such director, officer, employee or controlling person
promptly upon demand for any legal or other expenses reasonably incurred by
such Initial Purchaser, director, officer, employee or controlling person
in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability, judgment or action as such
expenses are incurred; PROVIDED, HOWEVER, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability, judgment or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary Offering Memorandum or the Offering Memorandum, or in
any such amendment or supplement, or in any Blue Sky Application or in any
Rule 144A Information, in reliance upon and in conformity with written
information concerning the Initial Purchaser furnished to the Company by or
on behalf of the Initial Purchaser specifically for inclusion therein;
PROVIDED FURTHER, that the indemnity agreement provided in this Section
9(a) with respect to any Preliminary Offering Memorandum shall not inure to
the benefit of the Initial Purchaser in any case in which a subsequent
purchaser asserts that its losses, claims, damages, liabilities, or actions
was based upon any untrue statement or alleged untrue statement of material
fact or omission or alleged omission to state therein a material fact in
the Preliminary Offering Memorandum, if a copy of the Offering Memorandum
in which such untrue statement or alleged untrue statement or omission or
alleged omission was corrected had not been sent or given to such
subsequent purchaser by the Initial Purchaser, PROVIDED that the Company
delivered such Offering Memorandum to the Initial Purchaser in requisite
quantity and on a timely basis to permit such delivery or sending. The
foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to the Initial Purchaser or to any director,
officer, employee or controlling person of the Initial Purchaser.
(b) The Initial Purchaser agrees to indemnify and hold harmless the
Company and the Guarantors, and their respective directors, officers and
employees and each person, if any, who
24
controls the Company or any Guarantor within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities, judgments or
actions, joint or several, or any action in respect thereof, to which
the Company, any Guarantor or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability, judgment or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary
Offering Memorandum or the Offering Memorandum or in any amendment or
supplement thereto, or (B) in any Blue Sky Application or (C) any Rule
144A Information provided by the Company or any Guarantor to any holder
or prospective purchaser of Senior Subordinated Notes pursuant to
Section 6(f) or (ii) the omission or alleged omission to state in any
Preliminary Offering Memorandum or the Offering Memorandum, or in any
amendment or supplement thereto, or in any Blue Sky Application or Rule
144A Information any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information concerning the Initial Purchaser
furnished to the Company by or on behalf of the Initial Purchaser
specifically for inclusion therein, and PROVIDED FURTHER, that the
indemnity agreement provided in this Section 9(b) with respect to any
Preliminary Offering Memorandum shall not inure to the benefit of the
Initial Purchaser in any case in which a subsequent purchaser asserts
that its losses, claims, damages, liabilities, or actions was based upon
any untrue statement or alleged untrue statement of material fact or
omission or alleged omission to state therein a material fact in the
Preliminary Offering Memorandum, if a copy of the Offering Memorandum in
which such untrue statement or alleged untrue statement or omission or
alleged omission was corrected had not been sent or given to such
subsequent purchaser by the Initial Purchaser, PROVIDED that the Company
delivered such Offering Memorandum to the Initial Purchaser in requisite
quantity and on a timely basis to permit such delivery or sending, and
shall reimburse the Company, the Guarantors and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company, any Guarantor or any such director, officer or
controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability,
judgment or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which the Initial
Purchaser may otherwise have to the Company, any Guarantor or any such
director, officer, employee or controlling person.
(c) Promptly after receipt by any person in respect of which
indemnity may be sought pursuant to Section 9(a) or (b) (the "INDEMNIFIED
PARTY") of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against any person against whom indemnity may be sought pursuant to Section
9(a) or (b) (the "INDEMNIFYING PARTY"), notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 9 except to the extent
it has been materially prejudiced by such failure and, PROVIDED FURTHER,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than
under this Section 9. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party and the payment of all fees and
expenses of such counsel shall be the responsibility of the indemnifying
party. After notice from the indemnifying party to the indemnified party
of its election to assume the defense of such claim or action, the
indemnifying
25
party shall not be liable to the indemnified party under this
Section 9 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. In addition, any indemnified party
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in
writing by the indemnifying party, (ii) the indemnifying party shall have
failed to assume the defense of such action or employ counsel reasonably
satisfactory to the indemnified party or (iii) the named parties to any
such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available
to the indemnifying party (in which case the indemnifying party shall not
have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one 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 more
than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by Xxxxxx
Brothers Inc., in the case of the parties indemnified pursuant to Section
9(a), and by the Company, in the case of parties indemnified pursuant to
Section 9(b). No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), 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 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
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with the consent of the indemnifying party or if there be a final judgment
of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss
or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9 shall for
any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 9(a) or 9(b) in respect of any loss, claim, damage,
liability, judgment or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage, liability,
judgment or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company and
the Guarantors, on the one hand, and the Initial Purchaser, on the other,
from the offering of the Senior Subordinated Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Guarantors, on the one hand, and the Initial Purchaser, on
the other, with respect to the statements or omissions which resulted in
such loss, claim, damage, liability, judgment or action in respect thereof,
as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantors, on the one hand, and
the Initial Purchaser, on the other, with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the
offering of the Senior Subordinated Notes purchased under this Agreement
(before deducting expenses) received by the Company, on the one
26
hand, and the total discounts and commissions received by the Initial
Purchaser with respect to the Senior Subordinated Notes purchased under
this Agreement, on the other hand, bear to the total gross proceeds from
the offering of the Senior Subordinated Notes under this Agreement, in
each case as set forth in the table on the cover page of the Offering
Memorandum. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantors or the Initial
Purchaser, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company, the Guarantors and the Initial
Purchaser agree that it would not be just and equitable if contributions
pursuant to this Section 9 were to be determined by pro rata allocation
or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage,
liability, judgment or action in respect thereof, referred to above in
this Section 9 shall be deemed to include, for purposes of this Section
9(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9(d),
the Initial Purchaser shall not be required to contribute any amount in
excess of the amount by which the total price at which the Senior
Subordinated Notes purchased by it and distributed to investors in
Exempt Resales exceeds the amount of any damages which the Initial
Purchaser has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
(e) The remedies provided for in this Section 9 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The Initial Purchaser confirms and the Company and the Guarantors
acknowledge that the statements with respect to the offering of the Senior
Subordinated Notes by the Initial Purchaser set forth on the cover page of,
the stabilization legend in and the concession and reallowance figures
under the caption "Plan of Distribution" in, the Offering Memorandum are
correct and constitute the only information concerning such Initial
Purchaser furnished in writing to the Company and the Guarantors by or on
behalf of the Initial Purchaser specifically for inclusion in the Offering
Memorandum.
10. EFFECTIVENESS OF AGREEMENT AND TERMINATION. The obligations of the
Initial Purchaser hereunder may be terminated by the Initial Purchaser by notice
given to and received by the Company and the Guarantors prior to delivery of and
payment for the Senior Subordinated Notes if, prior to that time, any of the
events described in Sections 8(z) or 8(aa) shall have occurred or if the Initial
Purchaser shall decline to purchase the Senior Subordinated Notes for any reason
permitted under this Agreement.
11. REIMBURSEMENT OF INITIAL PURCHASER'S EXPENSES. If (a) the Company
shall fail to tender the Senior Subordinated Notes for delivery to the Initial
Purchaser otherwise than for any reason permitted under this Agreement or (b)
the Initial Purchaser shall decline to purchase the Senior Subordinated Notes
for any reason permitted under this Agreement including termination of this
Agreement pursuant to Section 10 above, the Company and the Guarantors shall
reimburse the Initial Purchaser for the reasonable fees and expenses of its
counsel and for such other out-of-pocket expenses as shall have been incurred by
them in connection with this Agreement and the proposed purchase of the Senior
Subordinated Notes, and upon demand the Company and the Guarantors shall pay the
full amount thereof to the Initial Xxxxxxxxx.
00
00. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchaser, shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxx Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate Department
(Fax: (000) 000-0000), with copies to (i) Xxxxxx Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Director of
Litigation (Fax: (000) 000-0000; and (ii) Xxxxxx & Xxxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxx (Fax: (212)
000-0000);
(b) if to the Company and the Guarantors, shall be delivered or sent
by mail, telex or facsimile transmission to the address of the Company set
forth in the Offering Memorandum, Attention: Xxxxxx X. Xxxxx (Fax: (619)
000-0000), with a copy to Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional
Corporation, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Xx. (Fax: (000) 000-0000);
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company and the Guarantors shall be entitled to
act and rely upon any request, consent, notice or agreement given or made on
behalf of the Initial Purchaser.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure
to the benefit of and be binding upon the Initial Purchaser, the Company, the
Guarantors and their respective successors and assigns. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and agreements of
the Company contained in Sections 2 and 9(a) of this Agreement shall also be
deemed to be for the benefit of directors, officers and any person who controls
the Initial Purchaser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act and (B) the representations, warranties,
indemnities and agreements of the Initial Purchaser contained in Sections 4 and
9(b) of this Agreement shall be deemed to be for the benefit of directors,
officers, and any person controlling the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 13, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
14. SURVIVAL. The respective indemnities, representations, warranties and
agreements of the Company, the Guarantors and the Initial Purchaser contained in
this Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Senior Subordinated
Notes and shall remain in full force and effect, regardless of (i) any
investigation or statement as to the result thereof made by or on behalf of any
of them or any person controlling any of them (ii) acceptance of the Senior
Subordinated Notes and payment for them hereunder and (iii) termination of this
Agreement.
15. DEFINITION OF "BUSINESS DAY". For purposes of this Agreement,
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF NEW YORK.
28
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[Signature page follows]
29
If the foregoing correctly sets forth the understanding among the
Initial Purchaser, the Company and the Guarantors please so indicate in the
space provided below for that purpose, whereupon this letter shall constitute a
binding agreement between us.
Very truly yours,
AXIOHM TRANSACTION SOLUTIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
AXIOHM S.A.
By: /s/ Xxxxxxx Xxxxx
------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Chairman
DARDEL TECHNOLOGIES S.A.
By: /s/ Xxxxxxx Xxxxx
------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Chairman
AXIOHM IPB, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
STADIA COLORADO CORP.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
COGNITIVE SOLUTIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Schedule I
AXIOHM TRANSACTION SOLUTIONS, INC. SUBSIDIARIES
1. Dardel Technologies, S.A
2. Axiohm S.A.
3. Axiohm Limited
4. Axiohm Japan Inc.
5. DH Technology plc.
6. DH Technologia de Mexico, S.A.
7. DH Technology pty.
8. Stadia Colorado Corp.
9. Cognitive Solutions, Inc.
SCHEDULE II
GUARANTORS
1. Axiohm IPB, Inc.
2. Axiohm S.A.*
3. Dardel Technologies S.A.**
4. Stadia Colorado Corp.
5. Cognitive Solutions, Inc.
------------------
* Axiohm S.A. shall become a Guarantor upon electing to be treated as a
"pass-through" entity for United States federal tax purposes. Such election
is to be made as soon as practicable after the Closing Date.
** Dardel Technologies S.A. shall become a Guarantor upon electing to be
treated as a "pass-through" entity for United States federal tax purposes.
Such election is to be made as soon as practicable after the Closing Date.
SCHEDULE III
NON-WHOLLY OWNED SUBSIDIARIES OF AXIOHM TRANSACTION SOLUTIONS, INC.
1. Axiohm S.A.
2. Dardel Technologies S.A.
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
EXHIBIT B
FORM OF PURCHASE ASSUMPTION
PURCHASE AGREEMENT ASSUMPTION AGREEMENT
PURCHASE AGREEMENT ASSUMPTION AGREEMENT (this "AGREEMENT"), dated as
of __________, 1997, is by [Axiohm S.A.] [Dardel Technologies S.A.], a French
corporation (the "NEW GUARANTOR").
W I T N E S S E T H
WHEREAS, Axiohm Transaction Solutions, Inc., a California corporation,
(the "COMPANY") has heretofore executed and delivered to the Initial Purchaser a
purchase agreement (the "PURCHASE AGREEMENT"), dated as of September 25, 1997,
providing for the terms pursuant to which the Initial Purchaser will purchase
$120,000,000 of aggregate principal amount of 9 3/4% Senior Subordinated Notes
due 2007 (the "SENIOR SUBORDINATED NOTES") of the Company.
WHEREAS, the New Guarantor has elected to be treated as a "pass-
through" entity for United States federal income tax purposes (the
"ELECTION");and
WHEREAS, pursuant to the Purchase Agreement, the New Guarantor upon
the Election is required to execute this Agreement and become a party to the
Purchase Agreement;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor covenants and agrees for the equal and ratable benefit of the Initial
Purchaser as follows:
1. ADDITIONAL GUARANTOR. The New Guarantor hereby agrees to be
deemed a "Guarantor" for all purposes under the Purchase Agreement and to
perform all obligations and duties of a Guarantor thereunder.
2. DEFINITIONS. Capitalized terms used herein but not defined shall
have the meanings given to such terms in the Purchase Agreement.
3. NEW YORK LAW TO GOVERN. The internal law of the State of New
York shall govern and be used to construe this Agreement.
4. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
[Signature on following page]
IN WITNESS WHEREOF, the party hereto have caused this Agreement to be
duly executed and attested, all as of the date first above written.
[AXIOHM S.A.
By: ____________________________
Name:
Title:]
[DARDEL TECHNOLOGIES S.A.
By: ____________________________
Name:
Title:]
EXHIBIT C
FORM OF REGISTRATION RIGHTS ASSUMPTION
REGISTRATION RIGHTS ASSUMPTION AGREEMENT
Registration Rights Assumption Agreement (this "AGREEMENT"), dated as
of ___________, 1997, is by [Axiohm S.A.] [Dardel Technologies S.A.], a French
corporation (the "NEW GUARANTOR").
W I T N E S S E T H
WHEREAS, Axiohm Transaction Solutions, Inc., a California corporation
(the "COMPANY"), has heretofore executed and delivered to the Initial Purchaser
a registration rights agreement (the "REGISTRATION RIGHTS AGREEMENT") dated
October 2, 1997, providing for registration rights whereby the Company, among
other things, will file with the Commission under the circumstances set forth
therein, (i) the Exchange Offer Registration Statement and (ii) the Shelf
Registration Statement and use its best efforts to cause such Registration
Statements to be declared effective and consummate the Exchange Offer;
WHEREAS, the New Guarantor has elected to be treated as a "pass-
through" entity for United States federal income tax purposes (the
"Election");and
WHEREAS, pursuant to the Purchase Agreement, the New Guarantor upon
the Election is required to execute this Agreement and become a party to the
Registration Rights Agreement;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor covenants and agrees for the equal and ratable benefit of the Initial
Purchaser and each Holder of Transfer Restricted Securities as follows:
1. ADDITIONAL GUARANTOR. The New Guarantor hereby agrees to be
deemed a Guarantor for all purposes under the Registration Rights Agreement and
to perform all obligations and duties of a Guarantor thereunder.
2. DEFINITIONS. Capitalized terms used but not defined herein shall
have the meanings given to such terms in the Registration Rights Agreement.
3. NEW YORK LAW TO GOVERN. The internal law of the State of New
York shall govern and be used to construe this Agreement.
4. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
[Signature on following page]
IN WITNESS WHEREOF, the party hereto has caused this Agreement to be
duly executed and attested, all as of the date first above written.
[AXIOHM S.A.
By: ____________________________
Name:
Title:]
[DARDEL TECHNOLOGIES S.A.
By: ____________________________
Name:
Title:]
EXHIBIT D
FORM OF XXXXXX XXXXXXX XXXXXXXX & XXXXXX, PROFESSIONAL CORPORATION OPINION
EXHIBIT E
FORM OF XXXXXXXXX, WILL & XXXXX OPINION
EXHIBIT F
FORM OF SPARKS XXX, P.C.