EXHIBIT 10.1
EXECUTION COPY
PURCHASE AGREEMENT
May 5, 0000
XXXX XX XXXXXXX SECURITIES LLC
DEUTSCHE BANK SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
As Representatives of the Initial Purchasers
c/o Banc of America Securities LLC
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Introductory. Silgan Holdings Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the several Initial Purchasers named in Schedule A
(the "Initial Purchasers"), acting severally and not jointly, the respective
amounts set forth in such Schedule A of $250,000,000 aggregate principal amount
of the Company's 7 1/4% Senior Notes due 2016 (the "Securities"). Banc of
America Securities LLC, Deutsche Bank Securities Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated have agreed to act as the representatives of the Initial Purchasers
(the "Representatives") in connection with the offering and sale of the
Securities (as defined below).
The Securities will be issued pursuant to an indenture, to be dated as of
May 12, 2009 (the "Indenture"), between the Company and U.S. Bank National
Association, as trustee (the "Trustee"). Securities will be issued only in
book-entry form in the name of Cede & Co., as nominee of The Depository Trust
Company (the "Depositary") pursuant to a blanket letter of representations, to
be dated on or before the Closing Date (as defined in Section 2 hereof), among
the Company, the Trustee and the Depositary.
The holders of the Securities will be entitled to the benefits of a
registration rights agreement, to be dated as of May 12, 2009 (the "Registration
Rights Agreement"), among the Company and the Initial Purchasers, pursuant to
which the Company may be required to file with the Commission (as defined
below), under the circumstances set forth therein, (i) a registration statement
under the Securities Act (as defined below) relating to another series of debt
securities of the Company with terms substantially identical to the Securities
(the "Exchange Securities") to be offered in exchange for the Securities (the
"Exchange Offer") and (ii) a shelf registration statement pursuant to Rule 415
of the Securities Act relating to the resale by certain holders of the
Securities, and in each case, to use its best efforts to cause such registration
statements to be declared effective.
The Company understands that the Initial Purchasers propose to make an
offering of the Securities on the terms and in the manner set forth herein and
in the Pricing Disclosure Package and the Final Offering Memorandum (each as
defined below) and agrees that the Initial Purchasers may resell, subject to the
conditions set forth herein, all or a portion of the Securities to purchasers
(the "Subsequent Purchasers") on the terms set forth in the Pricing Disclosure
Package (the first time when sales of the Securities are made is referred to as
the "Time of Sale"). The Securities are to be offered and sold to or through the
Initial Purchasers without being registered with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933 (as amended, the
"Securities Act," which term, as used herein, includes the rules and regulations
of the Commission promulgated thereunder), in reliance upon exemptions
therefrom. Pursuant to the terms of the Securities and the Indenture, investors
who acquire Securities shall be deemed to have agreed that Securities may only
be resold or otherwise transferred, after the date hereof, if such Securities
are registered for sale under the Securities Act or if an exemption from the
registration requirements of the Securities Act is available (including the
exemptions afforded by Rule 144A under the Securities Act ("Rule 144A") or
Regulation S under the Securities Act ("Regulation S").
The Company has prepared and delivered to each Initial Purchaser copies of
a Preliminary Offering Memorandum, dated May 4, 2009 (the "Preliminary Offering
Memorandum"), and has prepared and delivered to each Initial Purchaser copies of
a Pricing Supplement, dated May 5, 2009, attached as Schedule B hereto (the
"Pricing Supplement"), describing the terms of the Securities, each for use by
such Initial Purchaser in connection with its solicitation of offers to purchase
the Securities. The Preliminary Offering Memorandum and the Pricing Supplement
are herein referred to as the "Pricing Disclosure Package." Promptly after this
Agreement is executed and delivered, the Company will prepare and deliver to
each Initial Purchaser a final offering memorandum dated the date hereof (the
"Final Offering Memorandum").
All references herein to the terms "Pricing Disclosure Package" and "Final
Offering Memorandum" shall be deemed to mean and include all information filed
under the Securities Exchange Act of 1934 (as amended, the "Exchange Act," which
term, as used herein, includes the rules and regulations of the Commission
promulgated thereunder) prior to the Time of Sale and incorporated by reference
in the Pricing Disclosure Package (including the Preliminary Offering
Memorandum) or the Final Offering Memorandum (as the case may be), and all
references herein to the terms "amend," "amendment" or "supplement" with respect
to the Final Offering Memorandum shall be deemed to mean and include all
information filed under the Exchange Act after the Time of Sale and incorporated
by reference in the Final Offering Memorandum.
The Company hereby confirms its agreements with the Initial Purchasers as
follows:
Section 1. Representations and Warranties. The Company hereby
represents, warrants and covenants to each Initial Purchaser that, as of the
date hereof and as of the Closing Date (references in this Section 1 to the
"Offering Memorandum" are to (x) the Pricing Disclosure Package in the case of
representations and warranties made as of the date hereof and (y) the Final
Offering Memorandum in the case of representations and warranties made as of the
Closing Date):
(a) No Registration Required. Subject to compliance by the Initial
Purchasers with the representations and warranties set forth in Section 2 hereof
and with the procedures set forth in Section 7 hereof, it is not necessary in
connection with the offer, sale and delivery of the Securities to the Initial
Purchasers and the initial resale by the Initial Purchasers of the Securities
2
to each Subsequent Purchaser in the manner contemplated by this Agreement and
the Offering Memorandum to register the Securities under the Securities Act or,
until such time as the Exchange Securities are issued pursuant to an effective
registration statement, to qualify the Indenture under the Trust Indenture Act
of 0000 (xxx "Xxxxx Xxxxxxxxx Xxx," which term, as used herein, includes the
rules and regulations of the Commission promulgated thereunder).
(b) No Integration of Offerings or General Solicitation. None of the
Company, to the knowledge of the Company, its affiliates (as such term is
defined in Rule 501 under the Securities Act) (each, an "Affiliate"), or any
person acting on its or any of their behalf (other than the Initial Purchasers,
as to whom the Company makes no representation or warranty) has, directly or
indirectly, solicited any offer to buy or offered to sell, or will, directly or
indirectly, solicit any offer to buy or offer to sell, in the United States or
to any United States citizen or resident, any security which is or would be
integrated with the sale of the Securities in a manner that would require the
Securities to be registered under the Securities Act. None of the Company, its
Affiliates, or any person acting on its or any of their behalf (other than the
Initial Purchasers, as to whom the Company makes no representation or warranty)
has engaged or will engage, in connection with the offering of the Securities,
in any form of general solicitation or general advertising within the meaning of
Rule 502 under the Securities Act. With respect to those Securities sold in
reliance upon Regulation S, (i) none of the Company, its Affiliates or any
person acting on its or their behalf (other than the Initial Purchasers, as to
whom the Company makes no representation or warranty) has engaged or will engage
in any directed selling efforts within the meaning of Regulation S and (ii) each
of the Company and its Affiliates and any person acting on its or their behalf
(other than the Initial Purchasers, as to whom the Company makes no
representation or warranty) has complied and will comply with the offering
restrictions set forth in Regulation S.
(c) Eligibility for Resale under Rule 144A. The Securities are eligible
for resale pursuant to Rule 144A and will not be, at the Closing Date, of the
same class as securities listed on a national securities exchange registered
under Section 6 of the Exchange Act or quoted in a U.S. automated interdealer
quotation system.
(d) The Pricing Disclosure Package and Offering Memorandum. Neither the
Pricing Disclosure Package, as of the Time of Sale, nor the Final Offering
Memorandum, as of its date or (as amended or supplemented in accordance with
Section 3(a), as applicable) as of the Closing Date, contains or represents an
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that this representation,
warranty and agreement shall not apply to statements in or omissions from the
Pricing Disclosure Package, the Final Offering Memorandum or any amendment or
supplement thereto made in reliance upon and in conformity with information
furnished to the Company in writing by any Initial Purchaser through the
Representatives expressly for use in the Pricing Disclosure Package, the Final
Offering Memorandum or amendment or supplement thereto, as the case may be. The
Company has not distributed and will not distribute, prior to the later of the
Closing Date and the completion of the Initial Purchasers' distribution of the
Securities, any offering material in connection with the offering and sale of
the Securities other than the Pricing Disclosure Package and the Final Offering
Memorandum.
3
(e) Company Additional Written Communications. The Company has not
prepared, made, used, authorized, approved or distributed and will not prepare,
make, use, authorize, approve or distribute any written communication that
constitutes an offer to sell or solicitation of an offer to buy the Securities
(each such communication by the Company or its agents and representatives (other
than a communication referred to in clauses (i) and (ii) below) a "Company
Additional Written Communication") other than (i) the Pricing Disclosure
Package, (ii) the Final Offering Memorandum, and (iii) any electronic road show
or other written communications, in each case used in accordance with Section
3(a). Each such Company Additional Written Communication, when taken together
with the Pricing Disclosure Package, did not, and at the Closing Date will not,
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that this
representation, warranty and agreement shall not apply to statements in or
omissions from each such Company Additional Written Communication made in
reliance upon and in conformity with information furnished to the Company in
writing by any Initial Purchaser through the Representatives expressly for use
in any Company Additional Written Communication.
(f) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Offering Memorandum at the time they were or
hereafter are filed with the Commission complied and will comply in all material
respects with the requirements of the Exchange Act.
(g) The Purchase Agreement. This Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of, the Company,
enforceable in accordance with its terms, except as rights to indemnification
hereunder may be limited by applicable law and except as the enforcement hereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors or by
general equitable principles.
(h) The Registration Rights Agreement. The Registration Rights
Agreement has been duly authorized and, on the Closing Date, will have been duly
executed and delivered by, and will constitute a valid and binding agreement of,
the Company, enforceable in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights and remedies of creditors
or by general equitable principles and except as rights to indemnification under
the Registration Rights Agreement may be limited by applicable law.
(i) Authorization of the Securities. The Securities have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, will be valid and
binding obligations of the Company, enforceable in accordance with their terms,
subject to the effects of applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and equitable principles of general
applicability, and will be entitled to the benefits of the Indenture pursuant to
which such Securities are to be issued, and the Registration Rights Agreement.
4
(j) Authorization of the Indenture. The Indenture has been duly
authorized by the Company and, at the Closing Date, will have been duly executed
and delivered by the Company and will constitute a valid and binding agreement
of the Company, enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles.
(k) Description of the Securities and the Indenture. The Securities and
the Indenture will conform in all material respects to the respective statements
relating thereto contained in the Offering Memorandum.
(l) No Material Adverse Change. Since the filing date of the Company's
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2009, there
has not been any material adverse change or any development involving a
prospective material adverse change in or affecting the earnings, business,
properties, assets, operations, condition (financial or otherwise), or prospects
of the Company and its Subsidiaries taken as a whole, whether or not occurring
in the ordinary course of business (any such change is called a "Material
Adverse Change"). The Company and its Subsidiaries have no material contingent
obligations which are not disclosed in the Company's financial statements which
are included or incorporated by reference in the Offering Memorandum.
(m) Independent Accountants. Ernst & Young LLP, which expressed its
opinion with respect to the financial statements (which term includes the
related schedule and notes thereto) filed with the Commission as part of, or
incorporated by reference in, the Offering Memorandum, are independent public
accountants as required by the Securities Act.
(n) Preparation of the Financial Statements. The consolidated financial
statements of the Company and the Subsidiaries, together with the related
schedule and notes, as set forth or incorporated by reference in the Offering
Memorandum present fairly in all material respects the consolidated financial
position and the results of operations and cash flows of the Company and the
Subsidiaries, at the indicated dates and for the indicated periods. Such
financial statements have been prepared in conformity with accounting principles
generally accepted in the United States, consistently applied throughout the
periods involved, except as disclosed therein, and all adjustments necessary for
a fair presentation in all material respects of results for such periods have
been made. The summary financial data included in the Offering Memorandum has
been compiled on a basis consistent with the financial statements included in
the Offering Memorandum, except as otherwise indicated, and the books and
records of the Company. The statistical data included or incorporated by
reference in the Offering Memorandum has been compiled on a basis consistent
with the books and records of the Company.
(o) Incorporation and Good Standing of the Company and its
Subsidiaries. The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Offering Memorandum. Each of the subsidiaries of
the Company as listed in Exhibit A hereto (collectively, the "Subsidiaries") has
been duly organized and is validly existing as a corporation or limited
liability company in good standing under the laws of the jurisdiction of its
organization, with corporate or limited liability
5
company power and authority to own or lease its properties and conduct its
business as described in the Offering Memorandum. There are no subsidiaries,
direct or indirect, of the Company that are "significant subsidiaries" as
defined in Rule 1-02 (w) of Regulation S-X, other than as set forth on Exhibit A
hereto. The Company and each of the Subsidiaries are duly qualified to transact
business and are in good standing in all jurisdictions in which the conduct of
their business or ownership or leasing of property requires such qualification
except as could not be reasonably be expected to result in a Material Adverse
Change. The outstanding shares of capital stock or membership interests of each
of the Subsidiaries have been duly authorized and validly issued and are fully
paid and non-assessable. The outstanding shares of capital stock or membership
interests of each of the Subsidiaries are owned by the Company or another
subsidiary of the Company free and clear of all liens, encumbrances and equities
and claims, other than (a) the pledges of such capital stock or membership
interests existing on the date hereof made in connection with (A) the Credit
Agreement, dated as of June 30, 2005, as amended, among the Company, Silgan
Containers LLC, Silgan Plastics LLC, Silgan Containers Manufacturing
Corporation, Silgan Can Company, Silgan White Cap LLC, Silgan Plastics Canada
Inc., 827599 Ontario Inc., the lenders party to the Credit Agreement from time
to time and Deutsche Bank AG New York Branch, as Administrative Agent (the
"Credit Agreement"); (B) the US Pledge Agreement, dated as of June 30, 2005, as
amended, among the Company, Silgan Containers LLC, Silgan Plastics LLC, Silgan
Containers Manufacturing Corporation, Silgan Can Company, Silgan Corporation,
Silgan White Cap LLC, Silgan LLC, Silgan Can Holding Company, Silgan Plastics
Corporation, Silgan Tubes Holding Company, Silgan White Cap Corporation, Silgan
White Cap Americas LLC, Silgan Closures International Holding Company, Silgan
Equipment Company, and Deutsche Bank AG New York Branch, as collateral agent,
and (C) the Xxxxxxxx Can Acquisition Documents (as such term is defined in the
Credit Agreement) and (b) the contractual right of Xxxxxxxx Soup Company or any
affiliate thereof to purchase the capital stock of Silgan Can Company or any of
the assets of Silgan Can Company (other than inventory in the ordinary course of
business in accordance with the supply arrangements).
(p) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor any of the
Subsidiaries is or with the giving of notice or lapse of time or both, will be,
in violation of or in default under (i) its Certificate of Incorporation or
By-Laws, (ii) any agreement, lease, contract, indenture or other instrument or
obligation to which it is a party or by which it, or any of its properties, is
bound and, solely with respect to this clause (ii), which violation or default
could reasonably be expected to result in a Material Adverse Change. The
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement, the Indenture, the Registration Rights
Agreement, the Securities will not contravene any provision of applicable law or
the Amended and Restated Certificate of Incorporation or the Amended and
Restated By-Laws of the Company, as amended, or any agreement or other
instrument binding upon the Company or any of the subsidiaries that is material
to the Company and its subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization or order of,
or qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture, the Registration Rights Agreement or the Securities, except (1) such
as may have been obtained, (2) as may be required by applicable federal or state
securities laws, and (3) qualification of the Indenture under the Trust
Indenture Act.
6
(q) No Material Actions or Proceedings. Other than as described in the
Offering Memorandum, there is no action, suit, claim or proceeding pending or,
to the knowledge of the Company, threatened against the Company or any of the
Subsidiaries or any of their properties before any court or administrative
agency or otherwise which if determined adversely to the Company or any of the
Subsidiaries might result in a Material Adverse Change or prevent the Company
from performing its obligations under this Agreement, the Indenture, the
Registration Rights Agreement or the Securities or the consummation of the
transactions contemplated by the Offering Memorandum.
(r) All Necessary Permits, etc. The Company and each of the
Subsidiaries hold all material licenses, certificates and permits from
governmental authorities which are necessary to the conduct of their businesses,
except where the failure to hold any such license, certificate or permit would
not result in a Material Adverse Change.
(s) Company Not an "Investment Company". The Company is not, and after
giving effect to the offering and sale of the Securities and the application of
the proceeds thereof as described in the Offering Memorandum, will not be,
required to register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(t) Compliance with Xxxxxxxx-Xxxxx. The Company and its subsidiaries
and, to the Company's knowledge, their respective officers and directors are in
compliance in all material respects with the applicable provisions of the
Xxxxxxxx-Xxxxx Act of 0000 (xxx "Xxxxxxxx-Xxxxx Xxx," which term, as used
herein, includes the rules and regulations of the Commission promulgated
thereunder).
(u) Company's Accounting System. The Company and each of its
Subsidiaries maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with accounting principles generally accepted in the U.S.; and (iii)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(v) Disclosure Controls and Procedures. The Company's Chief Executive
Officer and Chief Financial Officer are responsible for establishing and
maintaining disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act), for the Company and they have (i) designed
such disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under their supervision, to ensure that material
information relating to the Company, including its consolidated subsidiaries, is
made known to them by others within those entities, particularly during periods
in which the periodic reports required under the Exchange Act are being
prepared, (ii) evaluated the effectiveness of such disclosure controls and
procedures as of the end of the period covered by the Company's most recent
Quarterly Report on Form 10-Q filed with the Commission, and (iii) concluded
that the disclosure controls and procedures are effective in ensuring that all
material information required to be disclosed in the Company's most recent
Quarterly Report on Form 10-Q filed with the Commission was made known to them
in a timely fashion. Since the most recent evaluation of the Company's
disclosure controls and procedures described above, there have been no changes
7
in internal control over financial reporting that have materially affected, or
are reasonably likely to materially affect, the Company's internal control over
financial reporting.
(w) Compliance with Environmental Laws. Except as disclosed in the
Offering Memorandum, the Company and its subsidiaries (1) are in compliance with
any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (2) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses, and (3) are in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals could not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Change.
(x) Costs of Environmental Compliance. There are no costs or
liabilities associated with Environmental Laws (including, without limitation,
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties) which could, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Change.
(y) No Unlawful Contributions or Other Payments. Neither the Company
nor any of its subsidiaries nor, to the best of the Company's knowledge, any
employee or agent of the Company or any subsidiary, has made any contribution or
other payment to any official of, or candidate for, any federal, state or
foreign office in violation of any law other than any such violation that would
not, individually or in the aggregate, result in a Material Adverse Change.
(z) No Conflict with Money Laundering Laws. The operations of the
Company and its subsidiaries are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting requirements of
the Currency and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all applicable jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or
guidelines issued, administered or enforced by any governmental agency
(collectively, the "Money Laundering Laws") and no action, suit or proceeding by
or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(aa) No Conflict with OFAC Laws. Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company or any of its subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department ("OFAC"); and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner
or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
8
(bb) Regulation S. The Company and its affiliates and all persons acting
on their behalf (other than the Initial Purchasers, as to whom the Company makes
no representation) have complied with and will comply with the offering
restrictions requirements of Regulation S in connection with the offering of the
Securities outside the United States and, in connection therewith, the Offering
Memorandum will contain the disclosure required by Rule 902. The Securities sold
in reliance on Regulation S will be represented upon issuance by a temporary
global security that may not be exchanged for definitive securities until the
expiration of the 40-day restricted period referred to in Rule 903 of the
Securities Act and only upon certification of beneficial ownership of such
Securities by non-U.S. persons or U.S. persons who purchased such Securities in
transactions that were exempt from the registration requirements of the
Securities Act.
Any certificate signed by an officer of the Company and delivered to the
Initial Purchasers or to counsel for the Initial Purchasers shall be deemed to
be a representation and warranty by the Company to each Initial Purchaser as to
the matters set forth therein.
Section 2. Purchase, Sale and Delivery of the Securities.
(a) The Securities. The Company agrees to issue and sell to the Initial
Purchasers, severally and not jointly, all of the Securities, and the Initial
Purchasers agree, severally and not jointly, to purchase from the Company the
aggregate principal amount of Securities set forth opposite their names on
Schedule A, at a purchase price of 95.655% of the principal amount thereof
payable on the Closing Date, in each case, on the basis of the representations,
warranties and agreements herein contained, and upon the terms, subject to the
conditions thereto, herein set forth.
(b) The Closing Date. Delivery of certificates for the Securities in
definitive form to be purchased by the Initial Purchasers and payment therefor
shall be made at the offices of Shearman & Sterling LLP, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (or such other place as may be agreed to by the Company
and the Representatives) at 9:00 a.m. New York City time, on May 12, 2009, or
such other time and date as the Representatives shall designate by notice to the
Company (the time and date of such closing are called the "Closing Date").
(c) Delivery of the Securities. The Company shall deliver, or cause to
be delivered, to the Representatives for the accounts of the several Initial
Purchasers certificates for the Securities at the Closing Date against the
irrevocable release of a wire transfer of immediately available funds for the
amount of the purchase price therefor. The certificates for the Securities shall
be in such denominations and registered in the name of Cede & Co., as nominee of
the Depositary, and shall be made available for inspection on the business day
preceding the Closing Date at a location in New York City, as the
Representatives may designate. Time shall be of the essence, and delivery at the
time and place specified in this Agreement is a further condition to the
obligations of the Initial Purchasers.
(d) Initial Purchasers as Qualified Institutional Buyers. Each Initial
Purchaser severally and not jointly represents and warrants to, and agrees with,
the Company that it is a "qualified institutional buyer" within the meaning of
Rule 144A (a "Qualified Institutional Buyer").
9
Section 3. Additional Covenants. The Company further covenants and
agrees with each Initial Purchaser as follows:
(a) Preparation of Final Offering Memorandum; Initial Purchasers'
Review of Proposed Amendments and Supplements and Company Additional Written
Communications. As promptly as practicable following the Time of Sale and in any
event not later than the second business day following the date hereof, the
Company will prepare and deliver to the Initial Purchasers the Final Offering
Memorandum, which shall consist of the Preliminary Offering Memorandum as
modified only by the information contained in the Pricing Supplement. The
Company will not amend or supplement the Preliminary Offering Memorandum,
Pricing Supplement or the Final Offering Memorandum prior to the Closing Date
unless the Representatives shall previously have been furnished a copy of the
proposed amendment or supplement prior to the proposed use or filing, and shall
not have reasonably objected to such amendment or supplement. Before making,
preparing, using, authorizing, approving or distributing any Company Additional
Written Communication, the Company will furnish to the Representatives a copy of
such written communication for review and will not make, prepare, use,
authorize, approve or distribute any such written communication to which the
Representatives reasonably object.
(b) Amendments and Supplements to the Final Offering Memorandum and
Other Securities Act Matters. If, prior to the later of (x) the Closing Date and
(y) the completion of the placement of the Securities by the Initial Purchasers
with the Subsequent Purchasers, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Final Offering
Memorandum, as then amended or supplemented, in order to make the statements
therein, in the light of the circumstances when the Final Offering Memorandum is
delivered to a Subsequent Purchaser, not misleading, or if in the judgment of
the Representatives or counsel for the Initial Purchasers it is otherwise
necessary to amend or supplement the Final Offering Memorandum to comply with
law, the Company agrees to promptly prepare (subject to Section 3 hereof), file
with the Commission, as applicable, and furnish at its own expense to the
Initial Purchasers (except that such amendments or supplements which are
furnished to or filed with the Commission and made generally available to the
public need not be furnished to the Initial Purchasers), amendments or
supplements to the Final Offering Memorandum so that the statements in the Final
Offering Memorandum as so amended or supplemented will not, in the light of the
circumstances at the Closing Date and at the time of sale of Securities, be
misleading or so that the Final Offering Memorandum, as amended or supplemented,
will comply with all applicable law.
(c) Copies of the Offering Memorandum. The Company agrees to furnish
the Initial Purchasers, without charge, as many copies of the Pricing Disclosure
Package and the Final Offering Memorandum and any amendments and supplements
thereto as they shall reasonably request.
(d) Blue Sky Compliance. The Company shall cooperate with the
Representatives and counsel for the Initial Purchasers to qualify or register
(or to obtain exemptions from qualifying or registering) all or any part of the
Securities for offer and sale under the securities laws of the several states of
the United States, the provinces of Canada or any other jurisdictions designated
by the Representatives, shall comply with such laws and shall continue such
10
qualifications, registrations and exemptions in effect so long as required for
the distribution of the Securities. The Company shall not be required to qualify
as a foreign corporation or to take any action that would subject it to general
service of process in any such jurisdiction where it is not presently qualified
or where it would be subject to taxation as a foreign corporation. The Company
will advise the Representatives promptly of the suspension of the qualification
or registration of (or any such exemption relating to) the Securities for
offering, sale or trading in any jurisdiction or any initiation or threat of any
proceeding for any such purpose, and in the event of the issuance of any order
suspending such qualification, registration or exemption, the Company shall use
its reasonable best efforts to obtain the withdrawal thereof as soon as
reasonably practicable.
(e) Use of Proceeds. The Company shall apply the net proceeds from the
sale of the Securities sold by it in the manner described under the caption "Use
of Proceeds" in the Pricing Disclosure Package.
(f) The Depositary. The Company will cooperate with the Initial
Purchasers and use its best efforts to permit the Securities to be eligible for
clearance and settlement through the facilities of the Depositary.
(g) Additional Issuer Information. Prior to the completion of the
placement of the Securities by the Initial Purchasers with the Subsequent
Purchasers, the Company shall file, on a timely basis, with the Commission all
reports and documents required to be filed under Section 13 or 15 of the
Exchange Act. Additionally, while any Securities remain "restricted securities"
within the meaning of the Securities Act, at any time when the Company is not
subject to Section 13 or 15 of the Exchange Act, for the benefit of holders and
beneficial owners from time to time of the Securities, the Company shall
furnish, at its expense, upon request, to holders and beneficial owners of
Securities and prospective purchasers of Securities information satisfying the
requirements of Rule 144A(d).
(h) Agreement Not To Offer or Sell Additional Securities. During the
period of 30 days following the date hereof, the Company will not, without the
prior written consent of Banc of America Securities LLC (which consent may be
withheld at the sole discretion of Banc of America Securities LLC), directly or
indirectly, sell, offer, contract or grant any option to sell, pledge, transfer
or establish an open "put equivalent position" within the meaning of Rule 16a-1
under the Exchange Act, or otherwise dispose of or transfer, or announce the
offering of, or file any registration statement under the Securities Act in
respect of, any debt securities of the Company or securities exchangeable for or
convertible into debt securities of the Company (other than as contemplated by
this Agreement and to register the Exchange Securities).
(i) No Integration. The Company agrees that it will not and will cause
its Affiliates not to make any offer or sale of securities of the Company of any
class if, as a result of the doctrine of "integration" referred to in Rule 502
under the Securities Act, such offer or sale would render invalid (for the
purpose of (i) the sale of the Securities by the Company to the Initial
Purchasers, (ii) the resale of the Securities by the Initial Purchasers to
Subsequent Purchasers, or (iii) the resale of the Securities by such Subsequent
Purchasers to others) the exemption from the registration requirements of the
Securities Act provided by Section 4(2) thereof or by Rule 144A or by Regulation
S thereunder or otherwise.
11
(j) No Restricted Resales. During the period of one year after the
Closing Date, the Company will not, and will not permit any of its affiliates
(as defined in Rule 144 under the Securities Act) to resell any of the
Securities which constitute "restricted securities" under Rule 144 that have
been reacquired by any of them.
(k) Legended Securities. Each certificate for a Security will bear the
legend contained in "Notice to Investors" in the Preliminary Offering Memorandum
for the time period and upon the other terms stated in the Preliminary Offering
Memorandum.
The Representatives on behalf of the several Initial Purchasers may, in
their sole discretion, waive in writing the performance by the Company of any
one or more of the foregoing covenants or extend the time for their performance.
Section 4. Payment of Expenses. The Company agrees to pay all costs,
fees and expenses incurred in connection with the performance of its obligations
hereunder and in connection with the transactions contemplated hereby,
including, without limitation, (i) all expenses in connection with the issuance
and delivery of the Securities (including all printing and engraving costs),
(ii) all necessary issue, transfer and other stamp taxes in connection with the
issuance and sale of the Securities to the Initial Purchasers, (iii) all fees
and expenses of the Company's counsel, independent public or certified public
accountants and other advisors of the Company, (iv) all costs and expenses
incurred in connection with the preparation, printing, filing, shipping and
distribution of the Pricing Disclosure Package and the Final Offering Memorandum
(including financial statements and exhibits), and all amendments and
supplements thereto, this Agreement, the Registration Rights Agreement, the
Indenture and the Securities, (v) all filing fees, attorneys' fees and expenses
incurred by the Company or the Initial Purchasers in connection with qualifying
or registering (or obtaining exemptions from the qualification or registration
of) all or any part of the Securities for offer and sale under the securities
laws of the several states of the United States, the provinces of Canada or
other jurisdictions designated by the Initial Purchasers (including, without
limitation, the cost of preparing, printing and mailing preliminary and final
blue sky or legal investment memoranda and any related supplements to the
Pricing Disclosure Package or the Final Offering Memorandum, (vi) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture, the Securities and the Exchange
Securities, (vii) any fees payable in connection with the rating of the
Securities or the Exchange Securities with the ratings agencies, (viii) any
filing fees incident to, and any reasonable fees and disbursements of counsel to
the Initial Purchasers in connection with the review by the Financial Industry
Regulatory Authority, if any, of the terms of the sale of the Securities or the
Exchange Securities, (ix) all fees and expenses (including reasonable fees and
expenses of Company counsel) of the Company in connection with approval of the
Securities by the Depositary for "book-entry" transfer, and the performance by
the Company of its other obligations under this Agreement, and (x) all expenses
incident to the "road show" for the offering of the Securities. Except as
provided in this Section 4 and Sections 6, 8 and 9 hereof, the Initial
Purchasers shall pay their own expenses, including the fees and disbursements of
their counsel.)
Section 5. Conditions of the Obligations of the Initial Purchasers. The
obligations of the several Initial Purchasers to purchase and pay for the
Securities as provided herein on the Closing Date shall be subject to the
accuracy of the representations and warranties
12
on the part of the Company set forth in Section 1 hereof as of the date hereof
and as of the Closing Date as though then made and to the timely performance by
the Company of its covenants and other obligations hereunder, and to each of the
following additional conditions:
(a) Accountants' Comfort Letter. On the date hereof, the Initial
Purchasers shall have received from Ernst & Young LLP, independent public or
certified public accountants for the Company, a "comfort letter" dated the date
hereof addressed to the Initial Purchasers, in form and substance satisfactory
to the Representatives, covering the financial information in the Preliminary
Offering Memorandum and the Pricing Supplement and other customary matters. In
addition, on the Closing Date, the Initial Purchasers shall have received from
such accountants, a "bring-down comfort letter" dated the Closing Date addressed
to the Initial Purchasers, in form and substance satisfactory to the
Representatives, in the form of the "comfort letter" delivered on the date
hereof, except that (i) it shall cover the financial information in the Final
Offering Memorandum and any amendment or supplement thereto and (ii) procedures
shall be brought down to a date no more than 5 days prior to the Closing Date.
(b) No Material Adverse Change or Ratings Agency Change. For the period
from and after the date of this Agreement and prior to the Closing Date:
(i) in the judgment of the Representatives there shall not have
occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Pricing Disclosure Package provided
to prospective purchasers of the Securities that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Securities on the terms and in the manner
contemplated in the Pricing Disclosure Package; and
(ii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded the Company or any of
its subsidiaries or any of their securities or indebtedness by any
"nationally recognized statistical rating organization" as such term
is defined for purposes of Rule 436 under the Securities Act.
(c) Opinion of Counsel for the Company. On the Closing Date, the
Initial Purchasers shall have received the opinion of Xxxxx Xxxx LLP, counsel
for the Company, dated as of such Closing Date, the form of which is attached as
Exhibit B.
(d) Opinion of Counsel for the Initial Purchasers. On the Closing Date,
the Initial Purchasers shall have received the favorable opinion of Shearman &
Sterling LLP, counsel for the Initial Purchasers, dated as of such Closing Date,
with respect to such matters as may be reasonably requested by the Initial
Purchasers.
(e) Officers' Certificate. On the Closing Date, the Initial Purchasers
shall have received a written certificate executed by an executive officer of
the Company dated as of the Closing Date, to the effect set forth in Section
5(b)(ii) hereof, and further to the effect that:
13
(i) the representations, warranties and covenants of the Company
set forth in Section 1 hereof are true and correct as of the Closing
Date with the same force and effect as though expressly made on and as
of the Closing Date; and
(ii) the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date.
The officer signing and delivering such certificate may rely upon the best
of his or her knowledge as to proceedings threatened.
(f) Registration Rights Agreement. The Company shall have entered into
the Registration Rights Agreement and the Initial Purchasers shall have received
executed counterparts thereof.
(g) Additional Documents. On or before the Closing Date, the Initial
Purchasers and counsel for the Initial Purchasers shall have received such
information and documents as they may reasonably require for the purposes of
enabling them to pass upon the issuance and sale of the Securities as
contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the conditions or
agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the
Representatives by notice to the Company at any time on or prior to the Closing
Date, which termination shall be without liability on the part of any party to
any other party, except that Sections 4, 6, 8 and 9 hereof shall at all times be
effective and shall survive such termination.
Section 6. Reimbursement of Initial Purchasers' Expenses. If this
Agreement is terminated by the Representatives pursuant to Section 5 or 10
hereof, including if the sale to the Initial Purchasers of the Securities on the
Closing Date is not consummated because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or to comply with any
provision hereof, the Company agrees to reimburse the Initial Purchasers,
severally, upon demand for all out-of-pocket expenses that shall have been
reasonably incurred by the Initial Purchasers in connection with the proposed
purchase and the offering and sale of the Securities, including, without
limitation, fees and disbursements of counsel, printing expenses, travel
expenses, postage, facsimile and telephone charges.
Section 7. Offer, Sale and Resale Procedures. The Initial Purchasers and
the Company hereby agree to observe the following procedures in connection with
the offer and sale of the Securities:
(a) Offers and sales of the Securities will be made only by the Initial
Purchasers or Affiliates thereof qualified to do so in the jurisdictions in
which such offers or sales are made. Each such offer or sale shall only be made
to persons whom the offeror or seller reasonably believes to be Qualified
Institutional Buyers or non-U.S. persons outside the United States to whom the
offeror or seller reasonably believes offers and sales of the Securities may be
made in reliance upon Regulation S upon the terms and conditions set forth in
Annex I hereto, which Annex I is hereby expressly made a part hereof.
14
(b) The Securities will be offered by approaching prospective
Subsequent Purchasers on an individual basis. No general solicitation or general
advertising (within the meaning of Rule 502 under the Securities Act) will be
used in the United States in connection with the offering of the Securities.
(c) Upon original issuance by the Company, and until such time as the
same is no longer required under the applicable requirements of the Securities
Act, the Securities (and all securities issued in exchange therefor or in
substitution thereof, other than the Exchange Securities) shall bear the
following legend:
"THE NOTES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION AS
SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT ("RULE 144A")), OR (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION, (2)
AGREES TO OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER SUCH NOTE PRIOR TO
THE DATE WHICH IS ONE YEAR AFTER THE DATE OF ORIGINAL ISSUE HEREOF
ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A TO A
PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES PURSUANT
TO OFFERS AND SALES TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION
PURSUANT TO REGULATION S UNDER THE SECURITIES ACT IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM."
Following the sale of the Securities by the Initial Purchasers to
Subsequent Purchasers pursuant to the terms hereof, the Initial Purchasers shall
not be liable or responsible to the Company for any losses, damages or
liabilities suffered or incurred by the Company, including
15
any losses, damages or liabilities under the Securities Act, arising from or
relating to any resale or transfer of any Security.
Section 8. Indemnification.
(a) Indemnification of the Initial Purchasers. The Company agrees to
indemnify and hold harmless each Initial Purchaser, its directors, officers and
employees, and each person, if any, who controls any Initial Purchaser within
the meaning of the Securities Act and the Exchange Act against any loss, claim,
damage, liability or expense, as incurred, to which such Initial Purchaser,
director, officer, employee or controlling person may become subject, under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Company), insofar as such loss, claim, damage, liability or expense (or actions
in respect thereof as contemplated below) arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum, the Pricing Supplement, any Company Additional
Written Information or the Final Offering Memorandum (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and to reimburse each
Initial Purchaser and each such director, officer, employee or controlling
person for any and all expenses (including the fees and disbursements of counsel
chosen by Banc of America Securities LLC) as such expenses are reasonably
incurred by such Initial Purchaser or such director, officer, employee or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that the foregoing indemnity agreement shall not
apply to any loss, claim, damage, liability or expense to the extent, but only
to the extent, arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by the
Representatives expressly for use in the Preliminary Offering Memorandum, the
Pricing Supplement, any Company Additional Written Information or the Final
Offering Memorandum (or any amendment or supplement thereto). The indemnity
agreement set forth in this Section 8(a) shall be in addition to any liabilities
that the Company may otherwise have.
(b) Indemnification of the Company. Each Initial Purchaser agrees,
severally and not jointly, to indemnify and hold harmless the Company, its
directors, officers and employees, and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each Initial
Purchaser, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Preliminary Offering
Memorandum, the Pricing Supplement, any Company Additional Written Information
or the Final Offering Memorandum (or any amendment or supplement thereto), in
reliance upon and in conformity with written information furnished to the
Company by the Representatives expressly for use therein; and to reimburse the
Company and each such director, officer and employee or controlling person for
any and all expenses (including the fees and disbursements of counsel) as such
expenses are reasonably incurred by the Company or such director or controlling
person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action. The Company
hereby acknowledges that the only information that
16
the Initial Purchasers through the Representatives have furnished to the Company
expressly for use in the Preliminary Offering Memorandum, the Pricing
Supplement, any Company Additional Written Information or the Final Offering
Memorandum (or any amendment or supplement thereto) are (i) the names of the
Initial Purchasers on the cover page of the Preliminary Offering Memorandum and
the Final Offering Memorandum and (ii) the statements set forth in the second
sentence of the fourth paragraph and the ninth paragraph under the caption "Plan
of Distribution" in the Preliminary Offering Memorandum and the Final Offering
Memorandum. The indemnity agreement set forth in this Section 8(b) shall be in
addition to any liabilities that each Initial Purchaser may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party for contribution or otherwise than under
the indemnity agreement contained in this Section 8 or to the extent it is not
prejudiced as a proximate result of such failure. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with local counsel), approved by the
indemnifying party (Banc of America Securities LLC in the case of Sections 8(b)
and 9 hereof), representing the indemnified parties who are parties to such
action) or (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such
17
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by this Section 8, the indemnifying party agrees that
it shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent (i) includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit or
proceeding and (ii) does not include any statements as to or any findings of
fault, culpability or failure to act by or on behalf of any indemnified party.
Section 9. Contribution. If the indemnification provided for in Section
8 hereof is for any reason held to be unavailable to or otherwise insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount paid or payable by such indemnified party, as
incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the Initial
Purchasers, on the other hand, from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, on the one hand, and the Initial Purchasers, on the other
hand, in connection with the statements or omissions or inaccuracies in the
representations and warranties herein which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Initial Purchasers, on the other hand, in connection with the offering
of the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company, and the total discount received by the Initial Purchasers bear to
the aggregate initial offering price of the Securities. The relative fault of
the Company, on the one hand, and the Initial Purchasers, on the other hand,
shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact or any such inaccurate or alleged inaccurate
representation or warranty relates to information supplied by the Company, on
the one hand, or the Initial Purchasers, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission or inaccuracy.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 8 hereof, any legal or other
fees or expenses reasonably incurred by such party in
18
connection with investigating or defending any action or claim. The provisions
set forth in Section 8 hereof with respect to notice of commencement of any
action shall apply if a claim for contribution is to be made under this Section
9; provided, however, that no additional notice shall be required with respect
to any action for which notice has been given under Section 8 hereof for
purposes of indemnification.
The Company and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which
one-half of the total price at which the Securities purchased and sold by it
hereunder exceeds the amount of any damages which such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue state
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11 of the Securities Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Initial Purchasers' obligations to contribute
pursuant to this Section 9 are several, and not joint, in proportion to their
respective commitments as set forth opposite their names in Schedule A. For
purposes of this Section 9, each director, officer and employee of an Initial
Purchaser and each person, if any, who controls an Initial Purchaser within the
meaning of the Securities Act and the Exchange Act shall have the same rights to
contribution as such Initial Purchaser, and each director of the Company, and
each person, if any, who controls the Company with the meaning of the Securities
Act and the Exchange Act shall have the same rights to contribution as the
Company.
Section 10. Termination of this Agreement. Prior to the Closing Date,
this Agreement may be terminated by the Representatives by notice given to the
Company if (a) at any time: (i) trading or quotation in any of the Company's
securities shall have been suspended or limited on any exchange or in any
over-the-counter market, or trading in securities generally on either the Nasdaq
Stock Market or the New York Stock Exchange shall have been suspended or
limited; (ii) a general banking moratorium shall have been declared by any of
federal, New York or Delaware authorities; (iii) a material disruption in
securities settlement, payment or clearance services in the United States shall
have occurred; or (iv) there shall have occurred any outbreak or escalation of
national or international hostilities or any crisis or calamity, or any change
in the United States or international financial markets, or any substantial
change or development involving a prospective substantial change in United
States' or international political, financial or economic conditions, as in the
judgment of the Representatives is material and adverse and (b) in the case of
any of the events specified in clauses (a)(i) through (a)(v) of this Section 10,
such event, singly or together with any other such event, makes it, in the
judgment of the Representatives, impracticable to market the Securities on the
terms and in the manner contemplated in the Pricing Disclosure Package. Any
termination pursuant to this Section 10 shall be without liability on the part
of (i) the Company to any Initial Purchaser, except that the Company shall be
obligated to reimburse the expenses of the Initial Purchasers pursuant to
Sections 4 and 6 hereof, (ii) any Initial Purchaser to the Company, or (iii) any
party hereto to any other party except that the provisions of Sections 8 and 9
hereof shall at all times be effective and shall survive such termination.
19
Section 11. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, its officers and the several Initial Purchasers set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Initial
Purchaser, the Company or any of their partners, officers or directors or any
controlling person, as the case may be, and will survive delivery of and payment
for the Securities sold hereunder and any termination of this Agreement.
Section 12. Notices. All communications hereunder shall be in writing and
shall be mailed, hand delivered, couriered or facsimiled and confirmed to the
parties hereto as follows:
If to the Initial Purchasers:
Banc of America Securities LLC
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Legal Department
with a copy to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
If to the Company:
Silgan Holdings Inc.
0 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx, III
with a copy to:
Xxxxx Xxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Any party hereto may change the address or facsimile number for receipt of
communications by giving written notice to the others.
20
Section 13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto, and to the benefit of the indemnified
parties referred to in Sections 8 and 9 hereof, and in each case their
respective successors, and no other person will have any right or obligation
hereunder. The term "successors" shall not include any Subsequent Purchaser of
other purchaser of the Securities as such from any of the Initial Purchasers
merely by reason of such purchase.
Section 14. Partial Unenforceability. The invalidity or unenforceability
of any section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other section, paragraph or provision hereof.
If any section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
Section 15. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES THEREOF.
(a) Consent to Jurisdiction. Any legal suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated
hereby ("Related Proceedings") may be instituted in the federal courts of the
United States of America located in the City and County of New York or the
courts of the State of New York in each case located in the City and County of
New York (collectively, the "Specified Courts"), and each party irrevocably
submits to the exclusive jurisdiction (except for suits, actions, or proceedings
instituted in regard to the enforcement of a judgment of any Specified Court in
a Related Proceeding a "Related Judgment", as to which such jurisdiction is
non-exclusive) of the Specified Courts in any Related Proceeding. Service of any
process, summons, notice or document by mail to such party's address set forth
above shall be effective service of process for any Related Proceeding brought
in any Specified Court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any Specified Proceeding in the Specified
Courts and irrevocably and unconditionally waive and agree not to plead or claim
in any Specified Court that any Related Proceeding brought in any Specified
Court has been brought in an inconvenient forum.
Section 16. Default of One or More of the Several Initial Purchasers. If
any one or more of the several Initial Purchasers shall fail or refuse to
purchase Securities that it or they have agreed to purchase hereunder on the
Closing Date, and the aggregate number of Securities which such defaulting
Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase
does not exceed 10% of the aggregate number of the Securities to be purchased on
such date, the other Initial Purchasers shall be obligated, severally, in the
proportions that the number of Securities set forth opposite their respective
names on Schedule A bears to the aggregate number of Securities set forth
opposite the names of all such non-defaulting Initial Purchasers, or in such
other proportions as may be specified by the Initial Purchasers with the consent
of the non-defaulting Initial Purchasers, to purchase the Securities which such
defaulting Initial Purchaser or Initial Purchasers agreed but failed or refused
to purchase on the Closing Date. If any one or more of the Initial Purchasers
shall fail or refuse to purchase Securities and the
21
aggregate number of Securities with respect to which such default occurs exceeds
10% of the aggregate number of Securities to be purchased on the Closing Date,
and arrangements satisfactory to the Initial Purchasers and the Company for the
purchase of such Securities are not made within 48 hours after such default,
this Agreement shall terminate without liability of any party to any other party
except that the provisions of Sections 4, 6, 8 and 9 hereof shall at all times
be effective and shall survive such termination. In any such case either the
Initial Purchasers or the Company shall have the right to postpone the Closing
Date, as the case may be, but in no event for longer than seven days in order
that the required changes, if any, to the Final Offering Memorandum or any other
documents or arrangements may be effected.
As used in this Agreement, the term "Initial Purchaser" shall be deemed to
include any person substituted for a defaulting Initial Purchaser under this
Section 16. Any action taken under this Section 16 shall not relieve any
defaulting Initial Purchaser from liability in respect of any default of such
Initial Purchaser under this Agreement.
Section 17. No Advisory or Fiduciary Responsibility. The Company
acknowledges and agrees that: (i) the purchase and sale of the Securities
pursuant to this Agreement, including the determination of the offering price of
the Securities and any related discounts and commissions, is an arm's-length
commercial transaction between the Company, on the one hand, and the several
Initial Purchasers, on the other hand, and the Company is capable of evaluating
and understanding and understands and accepts the terms, risks and conditions of
the transactions contemplated by this Agreement; (ii) in connection with each
transaction contemplated hereby and the process leading to such transaction each
Initial Purchaser is and has been acting solely as a principal and is not the
agent or fiduciary of the Company, or its affiliates, stockholders, creditors or
employees or any other party; (iii) no Initial Purchaser has assumed or will
assume an advisory or fiduciary responsibility in favor of the Company with
respect to any of the transactions contemplated hereby or the process leading
thereto (irrespective of whether such Initial Purchaser has advised or is
currently advising the Company on other matters) or any other obligation to the
Company except the obligations expressly set forth in this Agreement; (iv) the
several Initial Purchasers and their respective affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of the
Company and that the several Initial Purchasers have no obligation to disclose
any of such interests by virtue of any fiduciary or advisory relationship; and
(v) the Initial Purchasers have not provided any legal, accounting, regulatory
or tax advice with respect to the offering contemplated hereby and the Company
has consulted its own legal, accounting, regulatory and tax advisors to the
extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company and the several Initial Purchasers, or any
of them, with respect to the subject matter hereof. The Company hereby waives
and releases, to the fullest extent permitted by law, any claims that the
Company may have against the several Initial Purchasers with respect to any
breach or alleged breach of fiduciary duty.
Section 18. General Provisions. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in two
or more counterparts, each one of which shall be an original,
22
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement may not be amended or modified unless in writing by
all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to
benefit. The section headings herein are for the convenience of the parties only
and shall not affect the construction or interpretation of this Agreement.
23
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company the enclosed copies hereof, whereupon this
instrument, along with all counterparts hereof, shall become a binding agreement
in accordance with its terms.
Very truly yours,
SILGAN HOLDINGS INC.
By:/s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
The foregoing Purchase Agreement is hereby confirmed and accepted by the
Initial Purchasers as of the date first above written.
BANC OF AMERICA SECURITIES LLC
DEUTSCHE BANK SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
Acting on behalf of themselves
and as the Representatives of
the several Initial Purchasers
By:Banc of America Securities LLC
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Xxxx X. Xxxxxxx
Managing Director
