Exhibit 1.1
EXECUTION COPY
$100,000,000
DIMAC CORPORATION
12-1/2% Senior Subordinated Notes Due 2008
PURCHASE AGREEMENT
October 16, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
FIRST UNION CAPITAL MARKETS, A DIVISION
OF WHEAT FIRST SECURITIES, INC.
WARBURG DILLON READ LLC
C/O CREDIT SUISSE FIRST BOSTON CORPORATION
ELEVEN XXXXXXX XXXXXX,
XXX XXXX, XX 00000-0000
Dear Sirs:
1. Introductory. DIMAC Corporation, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"Purchasers") $100,000,000 aggregate principal amount of its 12-1/2% Senior
Subordinated Notes Due 2008 (the "Offered Securities"). The Offered Securities
will be unconditionally guaranteed on a senior subordinated basis (the
"Subsidiary Guaranties") by each domestic subsidiary of the Company signatory
hereto (the "Subsidiary Guarantors"). The Offered Securities will be issued
under an indenture dated as of October 15, 1998 (the "Indenture"), among the
Company, the Subsidiary Guarantors and Wilmington Trust Company, as trustee (the
"Trustee"). The United States Securities Act of 1933 is herein referred to as
the "Securities Act."
The Offered Securities are being issued and sold in connection with a
Refinancing (as defined below) by the Company pursuant to which the Company
intends to (i) purchase $100.0 million outstanding 11-5/8% Senior Notes Due 2002
(the "AmeriComm Senior Notes") of AmeriComm Direct Marketing, Inc., ("ADMI"), a
subsidiary of the Company, through a tender offer and consent solicitation (the
"Tender Offer and Consent Solicitation"), (ii) purchase 12-1/2% Senior Notes Due
2003 (the "AmeriComm Holdings Senior Notes") of AmeriComm Holdings, Inc., a
subsidiary of the Company, (iii) repay senior bank indebtedness of ADMI under
its existing credit agreement, (iv) reduce its amount of revolving loans
outstanding under its senior secured credit agreement and (v) pay certain fees
and expenses incurred in connection with the offering of the Offered Securities
and the Tender Offer and Consent Solicitation (collectively, together with the
Tender Offer and Consent Solicitation, the "Refinancing").
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities have been prepared by
the Company. Such preliminary offering circular (the "Preliminary
Offering Circular") and offering circular, (the "Offering Circular")
as both are supplemented as of the date of this Agreement, together
with any other document approved by the Company for use in connection
with the contemplated resale of Offered Securities are hereinafter
collectively referred to as the "Offering Document". On the date of
each such document, the Offering Document does not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from
the Offering Document based upon written information furnished to the
Company by any Purchaser through Credit Suisse First Boston
Corporation ("CSFBC") specifically for use therein, it being
understood and agreed that the only such information is that described
as such in Section 7(b).
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware
with the corporate power and authority to own its properties and
conduct its business as described in the Offering Document; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify could not
reasonably be expected to have a material adverse effect upon the
condition (financial or other), results of operations, business affairs
or business prospects of the Company and its subsidiaries taken as a
whole (a "Material Adverse Effect").
(c) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with the corporate power and
authority to own its properties and conduct its business as described
in the Offering Document, and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification except where
the failure to so qualify could not reasonably be expected to have a
Material Adverse Effect; all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and, except as
disclosed in the Offering Document, the capital stock of each
subsidiary owned by the Company, directly or through subsidiaries, is
owned free from liens, encumbrances and defects.
(d) The Indenture has been duly authorized by the Company; the
Offered Securities have been duly authorized by the Company; and when
the Offered Securities are delivered and paid for pursuant to this
Agreement on the Closing Date (as defined below), the Indenture will
have been duly executed and delivered, such Offered Securities will
have been duly executed, authenticated, issued and delivered and will
conform in all material respects to the description thereof contained
in the Offering Document and the Indenture and such Offered Securities
will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles (regardless of whether
enforcement is sought in a proceeding at equity or law).
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(e) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Purchaser for a brokerage commission, finder's fee or other like
payment in connection with the issuance and sale of the Offered
Securities.
(f) The Registration Rights Agreement dated the date hereof
(the "Registration Rights Agreement") has been duly authorized,
executed and delivered by the Company, and conforms in all material
respects to the description thereof contained in the Offering Document.
The Registration Rights Agreement constitutes a valid and legally
binding obligation of the Company, and is enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles (regardless of whether enforcement is sought in a proceeding
at equity or law) and, as to rights of indemnification or contribution,
to principles of public policy or federal or state securities laws
relating thereto.
(g) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Offering Document,
this Agreement and the Registration Rights Agreement in connection with
the issuance and sale of the Offered Securities by the Company, other
than those that have been obtained or made, or as may be required under
the Securities Act and the Rules and Regulations of the Commission
thereunder with respect to the Registration Rights Agreement and the
transactions contemplated thereunder and such as may be required by
securities or blue sky laws of any state of the United States or of any
foreign jurisdiction in connection with the offer and sale of the
Offered Securities.
(h) The execution, delivery and performance of the Indenture,
the Registration Rights Agreement, this Agreement and the issuance and
sale of the Offered Securities and compliance with the terms and
provisions thereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, (i) any
statute, any rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their properties, (ii) any
agreement or instrument to which the Company or any of its respective
subsidiaries is a party or by which the Company or any of its
respective subsidiaries is bound or to which any of the properties of
the Company or any of its respective subsidiaries is subject; except,
in the case of clause (i) and (ii) above, for such breaches, defaults
or violations that individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect or (iii) the
charter or by-laws of the Company or any of its respective subsidiaries
and the Company has the requisite corporate power and authority to
authorize, issue and sell the Offered Securities as contemplated by
this Agreement.
(i) This Agreement has been duly authorized, executed and
delivered by the Company.
(j) Except as disclosed in the Offering Document, the Company
and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each
case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or
to be made thereof by them; and except as
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disclosed in the Offering Document, the Company and its subsidiaries
hold any material leased real or personal property under valid and
enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by them.
(k) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its respective
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(l) No labor dispute with the employees of the Company or its
subsidiaries exists or, to the knowledge of the Company, is imminent
that could reasonably be expected to individually or in the aggregate
have a Material Adverse Effect.
(m) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"intellectual property rights") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(n) Except as disclosed in the Offering Document, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "environmental laws"), owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and neither the Company nor
any of its subsidiaries is aware of any pending investigation which
might lead to such a claim.
(o) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, are
reasonably likely to individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect the ability of
the Company to perform its obligations under the Indenture, the
Registration Rights Agreement or this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or contemplated.
(p) The financial statements included in the Offering Document
present fairly in all material respects the financial position of the
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
such financial statements have been
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prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis; and the
assumptions used in preparing the pro forma financial statements
included in the Offering Document provide a reasonable basis for
presenting the significant effects directly related to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(q) Except as disclosed in the Offering Document, since the
date of the latest audited financial statements included in the
Offering Document there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or results
of operations of the Company or its subsidiaries taken as a whole, and,
except as disclosed in or contemplated by the Offering Document, there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(r) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "Investment Company Act") ; and the
Company is not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as
described in the Offering Document, the Company will not be an
"investment company" as defined in the Investment Company Act.
(s) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities are
listed on any national securities exchange registered under Section 6
of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation system.
(t) The offer and sale of the Offered Securities in the manner
contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof
and Regulation S thereunder; and it is not necessary to qualify an
indenture in respect of the Offered Securities under the United States
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(u) Neither the Company, nor any of its affiliates, nor any
person acting on their behalf (i) has, within the six-month period
prior to the date hereof, offered or sold in the United States or to
any U.S. person (as such terms are defined in Regulation S under the
Securities Act) the Offered Securities or any security of the same
class or series as the Offered Securities or (ii) has offered or will
offer or sell the Offered Securities (A) in the United States by means
of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act or (B) with respect to
any securities sold in reliance on Rule 903 of Regulation S by means of
any directed selling efforts within the meaning of Rule 902(b) of
Regulation S. The Company, its affiliates and any person acting on
their behalf have complied and will comply with the offering
restrictions requirement of Regulation S. The Company has not entered
and will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for this Agreement and
the Registration Rights Agreement.
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3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree to purchase from the Company, at a purchase
price of 94.233% of the principal amount thereof plus accrued interest, if any,
from October 22, 1998 to the Closing Date (as hereinafter defined), $100,000,000
aggregate principal amount of the Offered Securities.
The Company will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global Securities in
definitive form (the "Global Securities") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Offering Document. Payment for the Offered
Securities shall be made by the Purchasers in Federal (same day) funds by wire
transfer to an account at a bank acceptable to CSFBC at the office of Cravath,
Swaine & Xxxxx, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, at 9:00 A.M. (New York time), on October 22, 1998 or at such other
time not later than seven full business days thereafter as CSFBC and the Company
determine, such time being herein referred to as the "Closing Date", against
delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Offered Securities. The Offered Securities will be made
available for checking at the above office of Cravath, Swaine & Xxxxx at least
24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers. (a) Each
Purchaser severally represents and warrants to the Company that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
(b) Each Purchaser severally acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act. Each Purchaser severally
represents and agrees that it has offered and sold the Offered Securities and
will offer and sell the Offered Securities (i) as part of its distribution at
any time and (ii) otherwise until the later of the commencement of the offering
and the Closing Date, only in accordance with Rule 144A ("Rule 144A") or Rule
903 under the Securities Act. Accordingly, neither such Purchaser nor its
affiliates, nor any persons acting on its behalf, have engaged or will engage in
any directed selling efforts with respect to the Offered Securities, and such
Purchaser, its affiliates and all persons acting on its behalf have complied and
will comply with the offering restrictions requirement of Regulation S. Each
Purchaser severally agrees that, at or prior to confirmation of sale of the
Offered Securities, other than a sale pursuant to Rule 144A, such Purchaser will
have sent to each distributor, dealer or person receiving a selling concession,
fee or other remuneration that purchases the Offered Securities from it during
the restricted period a confirmation or notice to substantially the following
effect:
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"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the date of the commencement of the offering and
the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meanings given to them by
Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement with respect
to the distribution of the Offered Securities except with the prior written
consent of the Company.
(d) Each Purchaser severally agrees that it and each of its affiliates
will not offer or sell the Offered Securities by means of any form of general
solicitation or general advertising, within the meaning of Rule 502(c) under the
Securities Act, including, but not limited to (i) any advertisement, article,
notice or other communication published in any newspaper, magazine or similar
media or broadcast over television or radio, or (ii) any seminar or meeting
whose attendees have been invited by any general solicitation or general
advertising. Each Purchaser also severally agrees, with respect to resales made
in reliance on Rule 144A of any of the Offered Securities, to deliver either
with the confirmation of such resale or otherwise prior to settlement of such
resale a notice to the effect that the resale of such Offered Securities has
been made in reliance upon the exemption from the registration requirements of
the Securities Act provided by Rule 144A.
5. Certain Agreements of the Company. The Company agrees with the
several Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to
amend or supplement the Offering Document and will not effect such
amendment or supplementation without CSFBC's consent, which such
consent shall not be unreasonably withheld or delayed. If, at any time
prior to the completion of the resale of the Offered Securities by the
Purchasers, any event occurs as a result of which the Offering Document
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any such
time to amend or supplement the Offering Document to comply with any
applicable law, the Company will notify CSFBC promptly of such event
and will prepare promptly, at its own expense, an amendment or
supplement which will correct such statement or omission or effect such
compliance. Neither CSFBC's consent to, nor the Purchasers' delivery to
offerees or investors of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(b) The Company will furnish to CSFBC copies of, the Offering
Document and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as CSFBC reasonably
requests, and the Company will furnish to CSFBC on the date hereof four
copies of the Offering Document signed by a duly authorized officer of
the Company, one of which will include the independent accountants'
reports therein manually signed by such independent accountants. At any
time when
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the Company is not subject to Section 13 or 15(d) of the Exchange
Act, the Company promptly will furnish or cause to be furnished to CSFBC
and, upon request of holders and prospective purchasers of the Offered
Securities, to such holders and purchasers, copies of the information
required to be delivered to holders and prospective purchasers of the
Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto) in order to permit compliance with
Rule 144A in connection with resales by such holders of the Offered
Securities. The Company will pay the expenses of preparing, printing and
distributing all such documents.
(c) The Company will use its reasonable best efforts to
arrange for the qualification of the Offered Securities for sale and
the determination of their eligibility for investment under the laws of
such states in the United States as CSFBC designates and will continue
such qualifications in effect so long as required for the resale of the
Offered Securities by the Purchasers, provided that neither the Company
nor any Subsidiary Guarantor will be required to qualify as a foreign
corporation or to file a general consent to service of process in any
such state.
(d) During the period of five years hereafter, the Company
will furnish to CSFBC and, upon request, to each of the other
Purchasers, (i) as soon as available, a copy of each report or other
document furnished to the Commission pursuant to Rule 12g3-2(b) under
the Exchange Act and (ii) such additional information concerning the
business and financial condition of the Company as you may from time to
time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company are
consolidated in reports furnished to its shareholders generally or to
the Commission).
(e) During the period of two years after the Closing Date, the
Company will, upon request, furnish to CSFBC and any holder of Offered
Securities a copy of the restrictions on transfer applicable to the
Securities.
(f) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined
in Rule 144 under the Securities Act) to, resell any of the Offered
Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the
Company will not be or become an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company
Act.
(h) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement and the Indenture,
including (i) the fees and expenses of the Trustee and its professional
advisers; (ii) all expenses in connection with the execution, issue,
authentication, packaging and initial delivery of the Offered
Securities, the preparation of this Agreement, the Offered
Securities, the Indenture, the Offering Document and amendments and
supplements thereto, the Registration Rights Agreement and any other
document relating to the issuance, offer, sale and delivery of the
Offered Securities (not including fees of counsel to the Purchasers);
(iii) the cost of qualifying the Offered Securities for trading in The
Portal-SM- Market ("PORTAL") of The Nasdaq Stock Market, Inc. and any
expenses incidental thereto; (iv) the cost of any advertising requested
by the Company in connection with the issue of the Offered
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Securities; (v) any expenses (including fees and disbursements of
counsel) incurred in connection with qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and the printing of memoranda relating thereto; (vi) any
fees charged by investment rating agencies for the rating of the
Offered Securities and (vii) expenses incurred in distributing the
Offering Document (including any amendments and supplements thereto)
to the Purchasers. The Company will also pay or reimburse the
Purchasers (to the extent incurred by them) for all travel expenses
of the Company's officers and employees and any other expenses of the
Company in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have
notified the Company of the completion of the resale of the Offered
Securities, neither the Company nor any of its affiliates has or will,
either alone or with one or more other persons, bid for or purchase for
any account in which it or any of its affiliates has a beneficial
interest any Offered Securities or attempt to induce any person to
purchase any Offered Securities; and neither it nor any of its
affiliates will make bids or purchases for the purpose of creating
actual, or apparent, active trading in, or of raising the price of, the
Offered Securities.
(j) For a period of 180 days after the date of the initial
offering of the Offered Securities by the Purchasers, the Company will
not offer, sell, contract to sell, pledge, or otherwise dispose of,
directly or indirectly, any United States dollar-denominated debt
securities issued or guaranteed by the Company and having a maturity of
more than one year from the date of issue or publicly disclose the
intention to make such offer, sale, pledge or disposal without the
prior consent of CSFBC. The Company will not at any time offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, any securities under circumstances where such offer, sale,
pledge, contract or disposition would cause the exemption afforded by
Section 4(2) of the Securities Act or the safe harbor of Regulation S
thereunder, to cease to be applicable to the offer and sale of the
Offered Securities.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of
their obligations hereunder and to the following additional conditions
precedent:
(a) The Purchasers shall have received a letter, dated the
date of this Agreement, of Xxxxxx Xxxxxxxx LLP, in agreed form,
confirming that they are independent certified public accountants with
respect to AmeriComm Holdings, Inc. ("AmeriComm") under Rule 101 of the
AICPA's Code of Professional Conduct and to the effect that:
(i) in their opinion, their review of the financial
statements of AmeriComm included in the Offering Circular is
substantially consistent with the due diligence review process
they would have performed if the placement of securities were
being registered pursuant to the Act;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
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review of interim financial information as described in the
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
the Offering Circular;
(iii) on the basis of a reading of the latest
available interim financial statements of AmeriComm, inquiries
of officials of AmeriComm who have responsibility for
financial and accounting matters and other specified
procedures, nothing came to their attention that caused them
to believe that:
(A) any material modifications should be
made to the unaudited consolidated financial
statements included in the Offering Document for them
to be in conformity with generally accepted
accounting principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or increase
in long-term debt of AmeriComm and its consolidated
subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any
decrease in consolidated total assets or increase in
stockholders' equity (deficit), as compared with
amounts shown on the latest balance sheet included in
the Offering Circular; or
(C) for the period from the closing date of
the latest income statement included in the Offering
Circular to the closing date of the latest available
income statement read by such accountants, there were
decreases, as compared with the corresponding period
of the previous year and with the period of
corresponding length ended the date of the latest
income statement included in the Offering Circular,
in operating income or net income (loss) before
extraordinary item.
except in all cases set forth in clauses (B) and (C)
above for changes, increases or decreases which are described
in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Offering Document (in
each case to the extent that such dollar amounts, percentages
and other financial information are derived from the general
accounting records of AmeriComm subject to the internal
controls of AmeriComm's accounting system or are derived
directly from such records by analysis or computation) with
the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter;
(b) The Purchasers shall have received a letter dated the date
of this Agreement of Xxxxxx Xxxxxxxx LLP, in agreed form, confirming
that they are independent certified public accountants with respect to
DIMAC Direct Marketing Corporation ("DIMAC
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Marketing") under Rule 101 of the AICPA's Code of Professional
Conduct and to the effect that:
(i) in their opinion, their review of the financial
statements of DIMAC Marketing included in the Offering
Circular is substantially consistent with the due diligence
review process they would have performed if the placement of
securities were being registered pursuant to the Act;
(ii) on the basis of a reading of the latest
available interim financial statements of DIMAC Marketing,
inquiries of officials of DIMAC Marketing who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that
caused them to believe that:
(A) any material modifications should be
made to the unaudited consolidated financial
statements included in the Offering Circular for them
to be in conformity with generally accepted
accounting principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or increase
in long-term debt of DIMAC Marketing and its
consolidated subsidiaries or, at the date of the
latest available balance sheet read by such
accountants, there was any decrease in consolidated
total assets or increase in stockholders' equity
(deficit), as compared with amounts shown on the
latest balance sheet included in the Offering
Circular; or
(C) for the period from the closing date of
the latest income statement included in the Offering
Circular to the closing date of the latest available
income statement read by such accountants, there were
any decreases, as compared with the corresponding
period of the previous year and with the period of
corresponding length ended the date of the latest
income statement included on the Offering Circular,
in operating income or net income (loss) before
extraordinary item.
except in all cases set forth in clauses (B) and (C)
above for changes, increases or decreases which are described
in such letter;
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Offering Circular (in
each case to the extent that such dollar amounts, percentages
and other financial information are derived from the general
accounting records of DIMAC Marketing and its subsidiaries
subject to the internal controls of DIMAC Marketing's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter;
(c) The Purchasers shall have received a letter dated the
11
date of this Agreement of Xxxxxx Xxxxxxxx LLP, in agreed form, to
the effect that:
(A) they have read the summary unaudited
pro forma combined consolidated balance sheets and
unaudited pro forma combined consolidated statements
of operations of the Company for the year ended
December 31, 1997, the six months ended June 30, 1998
and the twelve months ended June 30, 1998;
(B) inquired of certain officials of the
Company who have responsibility for financial and
accounting matters about the basis for their
determination of the pro forma adjustments; and
(C) proved the arithmetic accuracy of the
application of the pro forma adjustments.
Based on the procedures described in the preceding sentence,
nothing came to their attention that caused them to believe that the
pro forma adjustments have not been properly applied to the historical
amounts in the compilation of the unaudited pro forma combined
consolidated financial statements.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of CSFBC,
be likely to prejudice materially the success of the proposed issue,
sale or distribution of the Offered Securities, whether in the primary
market or in respect of dealings in the secondary market, or (ii) (A)
any change, or any development or event involving a prospective change,
in the condition (financial or other), business, properties or results
of operations of the Company or its subsidiaries which, in the judgment
of the Purchasers is material and adverse and makes it impractical or
inadvisable to proceed with completion of the offering or the sale of
and payment for the Offered Securities; (B) any downgrading in the
rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act), or any public announcement that
any such organization has under surveillance or review its rating of
any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (C) any suspension or limitation
of trading in securities generally on the New York Stock Exchange or
any setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Issuers on any exchange
or in the over-the-counter market; (D) any banking moratorium declared
by U.S. Federal or New York authorities; or (E) any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of the
Purchasers, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed
with completion of the offering or sale of and payment for the Offered
Securities.
(e) The Purchasers shall have received an opinion, dated the
Closing Date, of counsel for the Company, that:
(i) Each of the Company and its subsidiaries has been
duly incorporated and is an existing corporation in good
standing under the laws of its jurisdiction of
12
incorporation, with corporate power and authority to own its
properties and conduct its business as described in the
Offering Document; and each of the Company and its respective
subsidiaries is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of
its business requires such qualification;
(ii) The Indenture has been duly authorized, executed
and delivered by the Company; the Offered Securities have been
duly authorized, executed, issued and delivered by the Company
and conform in all material respects to the description
thereof contained in the Offering Document; and assuming due
authorization, execution and delivery of the Indenture by the
Trustee and the due authentication of the Offered Securities
by the Trustee, the Indenture and the Offered Securities
constitute valid and binding obligations of the Company
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles (regardless of whether enforcement is sought in a
proceeding in equity or at law);
(iii) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Offering Document, will not be an "investment company" as
defined in the Investment Company Act of 1940;
(iv) No consent, approval, authorization or order of,
or filing with, any Federal, New York or Delaware governmental
agency or body or any court is required for the consummation
of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Offered Securities
by the Company, and the consummation of the transactions under
the Registration Rights Agreement, other than as may be
required under the Securities Act and the Rules and
Regulations of the Commission thereunder with respect to the
Registration Rights Agreement and the transactions
contemplated thereunder and such as may be required by
securities or blue sky laws of the various states of the
United States;
(v) The execution, delivery and performance of the
Indenture, the Registration Rights Agreement and this
Agreement and the issuance and sale of the Offered Securities
and compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under (i) any New York,
Delaware or federal statute, any rule, regulation or order of
any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company
or any of their properties, (ii) any agreement or instrument
of which counsel is aware to which the Company or any such
subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject or (iii) the charter
or by-laws of the Company or any such subsidiary, and the
Company has the requisite corporate power and authority to
authorize, issue and sell the Offered Securities as
contemplated by this Agreement;
(vi) Although such counsel has not independently
13
verified the accuracy, completeness or fairness of such
statements, such counsel does not believe that the Offering
Circular, or any amendment or supplement thereto, as of the
date hereof and as of such the Closing Date (other than the
financial and market data and statistical information
contained or incorporated by reference therein, as to which
such counsel expresses no opinion), contained any untrue
statement of a material fact or omitted to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(vii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and conforms
in all material respects to the description thereof contained
in the Offering Document and constitutes a valid and binding
obligation of the Company enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(viii) This Agreement has been duly authorized,
executed and delivered by the Company; and
(ix) It is not necessary in connection with (i) the
offer, sale and delivery of the Offered Securities by the
Company to the Purchasers pursuant to this Agreement or (ii)
the resales of the Offered Securities by the Purchasers in the
manner contemplated hereby to register the Offered Securities
under the Securities Act or to qualify an indenture in respect
thereof under the Trust Indenture Act, in each case assuming
(a) the accuracy of the representations, warranties and
agreements of the Company and of the Purchasers in this
Agreement and (b) that the persons who buy the offered
Securities in the initial resale thereof are QIB's or purchase
such Offered Securities outside the United States in reliance
on Regulation S under the Securities Act.
(x) To their knowledge, except as disclosed in the
Offering Document, there are no pending actions, suits or
proceedings against or affecting the Company or any of its
subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its
subsidiaries, would constitute a Material Adverse Effect.
(f) The Purchasers shall have received from Cravath, Swaine &
Xxxxx, counsel for the Purchasers, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Offering Document, the
exemption from registration for the offer and sale of the Offered
Securities by the Company to the Purchasers and the resales by the
Purchasers as contemplated hereby and other related matters as CSFBC
may require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to
pass upon such matters.
14
(g) The Purchasers shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to such the
Closing Date, and that, subsequent to the dates of the most recent
financial statements in the Offering Document there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of the Company or any
subsidiary except as set forth in or contemplated by the Offering
Document or as described in such certificate.
(h) The Purchasers shall have received letters, dated the
Closing Date, of Xxxxxx Xxxxxxxx LLP which meet the requirements of
subsection (a) and (b) of this Section, except that the specified date
referred to in such subsection will be a date not more than three
business days prior to the Closing Date for the purposes of this
subsection.
(i) Concurrently with or prior to the issue and sale of the
Offered Securities by the Company, (i) DIMAC Holdings, Inc.
("Holdings") shall have contributed $39.3 million of additional equity
to the Company (consisting of $10.0 million of additional equity to be
provided to Holdings by certain investors and $29.3 million of net
proceeds from the issuance of $30.0 million aggregate principal amount
of 15-1/2% Senior Notes due 2009 (the "Holdings Notes")) (ii) the
Company shall have borrowed $45.0 million of additional term loans
under the Senior Secured Credit Facility (as defined in the Offering
Document).
(j) Concurrently with or prior to the issue and sale of the
Offered Securities by the Company, the Company and all parties thereto
shall have consummated the Refinancing.
(k) On the Closing Date, the Company shall deliver to the
Initial Purchasers executed copies of the indenture relating to the
Holdings Notes, which indenture shall be in form and substance
satisfactory to the Initial Purchasers.
(l) On or prior to the Closing Date, to the extent the Company
or any of its subsidiaries has any obligations relating to any claims
arising under or related to the issue and sale of the Holdings Notes,
the Initial Purchasers shall have received a subordination agreement
relating to such claims, which subordination agreement shall be in form
and substance satisfactory to the Initial Purchasers.
The Company will furnish the Purchasers with such conformed copies of
such opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive compliance with any conditions
to the obligations of the Purchasers hereunder, whether in respect of the
Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company and the Subsidiary
Guarantors will jointly and severally indemnify and hold harmless the Purchasers
against any losses, claims, damages or liabilities, joint or several, to which
the Purchasers may become subject, under the Securities Act or the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any breach of any of the
15
representations and warranties of the Company contained herein or any untrue
statement or alleged untrue statement of any material fact contained in the
Offering Document, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, and will reimburse the Purchasers
for any legal or other expenses reasonably incurred by the Purchasers in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by CSFBC specifically for use therein, it being understood and
agreed that the only such information consists of the information described as
such in subsection (b) below.
(b) The Purchasers will severally and not jointly indemnify and hold
harmless the Company and the Subsidiary Guarantors against any losses, claims,
damages or liabilities to which the Company may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Offering Document, or any amendment or supplement thereto, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by
CSFBC specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by the Purchasers consists of (i) the following information in the
Offering Document: the last paragraph at the bottom of the cover page concerning
the terms of the offering by the Purchasers, the legend concerning
over-allotments and stabilizing on the inside front cover page, the first
paragraph under the caption "Plan of Distribution" and the statements under the
captions "Risk Factors - Absence of Public Market for the Notes" and "Transfer
Restrictions" regarding the intention of the Purchasers to make a market in the
Offered Securities.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above except to the extent
materially prejudiced thereby. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and,
to the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party
16
under this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Purchasers on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Purchasers on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total discounts and commissions received by the
Purchasers from the Company under this Agreement and as set forth in the
Offering Documents. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), the
Purchasers shall not be required to contribute any amount in excess of the
amount by which the total price at which the Offered Securities purchased by it
were resold exceeds the amount of any damages which the Purchasers has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Purchasers within the meaning of the Securities Act or the Exchange Act; and the
obligations of the Purchasers under this Section shall be in addition to any
liability which the Purchasers may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Securities hereunder and the aggregate principal
amount of the Offered Securities that such defaulting Purchaser or Purchasers
agreed but failed to purchase does not exceed 10% of the total principal amount
of the Offered Securities, CSFBC may make arrangements satisfactory to the
Company for the purchase of such Offered Securities by other persons, including
any of the Purchasers,
17
but if no such arrangements are made by the Closing Date, the non-defaulting
Purchasers shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Purchasers agreed but failed to purchase. If any Purchaser or Purchasers so
default and the aggregate principal amount of Offered Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
of the Offered Securities and arrangements satisfactory to CSFBC and the Company
for the purchase of such Offered Securities by other persons are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Purchaser or the Company, except as provided in
Section 9. As used in this Agreement, the term "Purchaser" includes any person
substituted for a Purchaser under this Section. Nothing herein will relieve a
defaulting Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Purchaser, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Purchasers is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5(h) and the
respective obligations of the Company and the Purchasers pursuant to Section 7
shall remain in effect. If the purchase of the Offered Securities by the
Purchasers is not consummated for any reason other than solely because of the
occurrence of any event specified in clause (C), (D) or (E) of Section 6(d)(ii),
the Company will reimburse the Purchasers for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by it in
connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to
Credit Suisse First Boston Corporation, Eleven Madison Avenue, New York, N.Y.
10010-3629, Attention: Investment Banking Department Transactions Advisory
Group, or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to them at DIMAC Corporation, 0000 Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxx
X-000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxx Xxxxx.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company as if such
holders were parties hereto.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to
principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of
18
the Federal and state courts in the Borough of Manhattan in The City of New York
in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
19
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the
Purchasers in accordance with its terms.
Very truly yours,
DIMAC CORPORATION,
by /s/ Xxxxx Xx
------------------------------------
Name: Xxxxx Xx
Title: Assistant Secretary
SUBSIDIARY GUARANTORS:
DIMAC MARKETING CORPORATION,
by /s/ Xxxxx Xx
------------------------------------
Name: Xxxxx Xx
Title: Assistant Secretary
DIMAC DIRECT, INC.,
by /s/ Xxxxx Xx
------------------------------------
Name: Xxxxx Xx
Title: Assistant Secretary
PALM COAST DATA INC.,
by /s/ Xxxxx Xx
------------------------------------
Name: Xxxxx Xx
Title: Assistant Secretary
THE XxXXXXX GROUP INC.,
by /s/ Xxxxx Xx
------------------------------------
Name: Xxxxx Xx
Title: Assistant Secretary
XXXXXX & ASSOCIATES INC.,
by /s/ Xxxxx Xx
------------------------------------
Name: Xxxxx Xx
Title: Assistant Secretary
20
MBS/MULTIMODE INC.,
by /s/ Xxxxx Xx
------------------------------------
Name: Xxxxx Xx
Title: Assistant Secretary
AMERICOMM HOLDINGS, INC.,
by /s/ Xxxxx Xx
------------------------------------
Name: Xxxxx Xx
Title: Assistant Secretary
AMERICOMM DIRECT MARKETING, INC.,
by /s/ Xxxxx Xx
------------------------------------
Name: Xxxxx Xx
Title: Assistant Secretary
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON
CORPORATION
FIRST UNION CAPITAL MARKETS
WARBURG DILLON READ LLC
Acting on behalf of themselves and
as the Representatives of the
several Purchasers
By: CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
21
Schedule A
Principal Amount
at maturity of
Purchaser Offered Securities
--------- ------------------
Credit Suisse First Boston Corporation..................................... $ 60,000,000
First Union Capital Markets, a division of Wheat
First Securities, Inc...................................................... 20,000,000
Warburg Dillon Read LLC.................................................... 20,000,000
------------------
Total................................................. $100,000,000
------------------
------------------
22
