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EXHIBIT 10.1
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SECURITIES PURCHASE AGREEMENT
by and among
X.X. XXXXXXXXX NORTH AMERICA, INC.,
THE GUARANTORS NAMED HEREIN
and
THE INITIAL PURCHASERS NAMED HEREIN
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Dated as of June 4, 1997
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions........................................................... 1
SECTION 1.2. Accounting Terms; Financial Statements................................ 5
ARTICLE II
ISSUE OF SECURITIES; PURCHASE AND SALE OF
SECURITIES; RIGHTS OF HOLDERS OF SECURITIES;
OFFERING BY INITIAL PURCHASERS
SECTION 2.1. Issue of Securities................................................... 6
SECTION 2.2. Purchase, Sale and Delivery of Securities............................. 6
SECTION 2.3. Registration Rights of Holders of Securities.......................... 7
SECTION 2.4. Offering by the Initial Purchasers.................................... 7
ARTICLE III
REPRESENTATIONS AND WARRANTIES; RESALE OF SECURITIES
SECTION 3.1. Representations and Warranties of the Company and the Guarantors...... 7
SECTION 3.2. Resale of Securities.................................................. 19
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
SECTION 4.1. Conditions Precedent to Obligations of the Initial Purchasers......... 20
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ARTICLE V
COVENANTS
SECTION 5.1. Covenants of the Company and the Guarantors........................... 24
ARTICLE VI
FEES
SECTION 6.1. Costs, Expenses and Taxes............................................. 26
ARTICLE VII
INDEMNITY
SECTION 7.1. Indemnity by the Company and the Guarantors........................... 27
SECTION 7.2. Contribution.......................................................... 30
SECTION 7.3. Registration Rights Agreement......................................... 32
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Survival of Provisions................................................ 32
SECTION 8.2. Termination........................................................... 32
SECTION 8.3. No Waiver; Modifications in Writing................................... 33
SECTION 8.4. Information Supplied by the Initial Purchasers........................ 34
SECTION 8.5. Communications........................................................ 34
SECTION 8.6. Execution in Counterparts............................................. 34
SECTION 8.7. Successors............................................................ 35
SECTION 8.8. Governing Law......................................................... 35
SECTION 8.9. Severability of Provisions............................................ 35
SECTION 8.10. Headings ............................................................ 35
SIGNATURES ....................................................................... 36
EXHIBITS
Exhibit 1 Form of Opinion of Pillsbury Madison & Sutro LLP
Exhibit 2 Form of Opinion of Xxxxxx Xxxxxx & Xxxxxxx
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SECURITIES PURCHASE AGREEMENT, dated as of June 4, 1997 (the
"Agreement"), by and among (i) X.X. Xxxxxxxxx North America, Inc., a Delaware
corporation (the "Company"), (ii) UpRight, Inc., a California corporation
("UpRight"), UpRight Foreign Sales Corporation, a United States Virgin Islands
corporation ("UpRight FSC"), and Horizon High Reach, Inc., a Delaware
corporation ("Horizon," and together with UpRight and UpRight FSC, the
"Guarantors"), and (iii) CIBC Wood Gundy Securities Corp. and BancAmerica
Securities, Inc. (the "Initial Purchasers").
In consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. As used in this Agreement, and unless
the context requires a different meaning, the following terms have the meanings
indicated.
"Accredited Investor" has the meaning provided therefor in
Section 3.2 of this Agreement.
"Act" means the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder.
"Affiliate" means, with respect to any Person, any other Person
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, the Person in question. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling", "controlled by" and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by agreement or
otherwise; provided, however, that beneficial ownership of at least 10% of the
voting securities of a Person shall be deemed to be control.
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"Agreement" means this Agreement, as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"Basic Documents" means, collectively, the Indenture, the
Securities, the Registration Rights Agreement, this Agreement and each other
agreement entered into in connection with any of the foregoing.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in the City of New
York are authorized or obligated by law to close.
"Closing" has the meaning provided therefor in Section 2.2(b) of
this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Act.
"Commonly Controlled Entity" has the meaning provided therefor in
Section 3.1(t) of this Agreement.
"Company" has the meaning provided therefor in the introductory
paragraph of this Agreement.
"Default" has the meaning provided therefor in the Indenture.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Event of Default" means any event defined as an Event of Default
in the Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"Exchange Notes" has the meaning provided therefor in the
Registration Rights Agreement.
"Final Memorandum" has the meaning provided therefor in Section
2.1 of this Agreement.
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"Foreign Plans" has the meaning provided therefor in Section
3.1(t) of this Agreement.
"Guarantees" has the meaning provided therefor in Section 2.1 of
this Agreement.
"Guarantors" has the meaning provided therefor in the
introductory paragraph of this Agreement.
"Indemnified Party" has the meaning provided therefor in Section
7.1(c) of this Agreement.
"Indemnifying Party" has the meaning provided therefor in Section
7.1(c) of this Agreement.
"Indenture" means the indenture to be dated as of June 10, 1997
by and among the Company, the Guarantors and the Trustee under which the
Securities will be issued.
"Initial Purchasers" has the meaning provided therefor in the
introductory paragraph of this Agreement.
"Lien" means, with respect to any property or assets of any
Person, any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, lien, charge, easement, encumbrance,
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever on or with respect to such property or assets
(including without limitation, any Capitalized Lease Obligation (as defined in
the Indenture), conditional sales, or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Material Adverse Effect" means, with respect to the Company and
each of its Subsidiaries, a material adverse effect on the business, condition
(financial or otherwise), results of operations or properties of the Company and
each of its Subsidiaries, taken as a whole; provided that, with respect to the
Company and the Guarantors, "Material Adverse Effect" shall also mean a material
adverse effect on the ability of the Company and the Guarantors to perform their
respective obligations under this Agreement or the other Basic Documents.
"Memorandum" has the meaning provided therefor in Section 2.1 of
this Agreement.
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"Notes" means $105,000,000 aggregate principal amount of 10-5/8%
Senior Subordinated Notes due 2007 of the Company to be issued pursuant to the
Indenture.
"Offering Materials" has the meaning provided therefor in Section
7.1 of this Agreement.
"Permits" has the meaning provided therefor in Section 3.1(cc) of
this Agreement.
"Permitted Liens" has the meaning provided therefor in the
Indenture.
"Person" means any individual, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint-stock company,
government (or an agency or political subdivision thereof) or other entity of
any kind.
"PORTAL" means the Private Offerings, Resales and Trading through
Automated Linkages market.
"Preliminary Memorandum" has the meaning provided therefor in
Section 2.1 of this Agreement.
"Private Exchange Notes" has the meaning provided therefor in the
Registration Rights Agreement.
"Proceeding" has the meaning provided therefor in Section 7.1(c)
of this Agreement.
"QIB" has the meaning provided therefor in Section 3.2 of this
Agreement.
"Registration Rights Agreement" means the registration rights
agreement by and among the Company, the Guarantors and the Initial Purchasers
relating to the Securities.
"Regulation S" has the meaning provided therefor in Section
3.1(ii) of this Agreement.
"Securities" has the meaning provided therefor in Section 2.1 of
this Agreement.
"State" means each of the states of the United States, the
District of Columbia and the Commonwealth of Puerto Rico.
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"State Commission" means any agency of any State having
jurisdiction to enforce such State's securities laws.
"Subsidiaries" means, with respect to any Person, any
corporation, partnership, joint venture, association or other business entity,
whether now existing or hereafter organized or acquired, (i) in the case of a
corporation, of which more than 50% of the total voting power of the capital
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, officers or trustees thereof is held by such
first-named Person or any of its Subsidiaries; or (ii) in the case of a
partnership, joint venture, association or other business entity, with respect
to which such first-named Person or any of its Subsidiaries has the power to
direct or cause the direction of the management and policies of such entity by
contract or otherwise or if in accordance with generally accepted accounting
principles such entity is consolidated with the first-named Person for financial
statement purposes.
"Taxes" has the meaning provided therefor in Section 3.1(w) of
this Agreement.
"Time of Purchase" has the meaning provided therefor in Section
2.2(b) of this Agreement.
"Trustee" means United States Trust Company of California, as
trustee under the Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder.
SECTION 1.2. Accounting Terms; Financial Statements. All
accounting terms used herein not expressly defined in this Agreement shall have
the respective meanings given to them in accordance with generally accepted
accounting principles in the United States as the same may be in effect from
time to time.
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ARTICLE II
ISSUE OF SECURITIES; PURCHASE AND SALE
OF SECURITIES; RIGHTS OF HOLDERS OF
SECURITIES; OFFERING BY INITIAL PURCHASERS
SECTION 2.1. Issue of Securities. The Company has authorized the
issuance of $105,000,000 aggregate principal amount of the Notes which are to be
issued pursuant to the Indenture. Each Note will be substantially in the form of
the Note set forth as Exhibit A to the Indenture.
The Notes will be unconditionally guaranteed (the "Guarantees"),
on a joint and several basis, by the Guarantors. Each Guarantee will be
substantially in the form of Exhibit G to the Indenture. The Notes and the
Guarantees together are hereinafter referred to as the "Securities."
The Securities will be offered and sold to the Initial Purchasers
without being registered under the Act, in reliance on exemptions therefrom.
In connection with the issuance and sale of the Securities, the
Company and the Guarantors have prepared a preliminary offering memorandum dated
May 16, 1997 (the "Preliminary Memorandum") and prepared a final offering
memorandum dated June 4, 1997 (the "Final Memorandum" and, together with the
Preliminary Memorandum, the "Memorandum") setting forth or including a
description of the terms of the Securities, the terms of the offering, a
description of the Company, the Guarantors and the Transactions and any material
developments relating to the Company and the Guarantors occurring after the date
of the most recent financial statements included therein.
SECTION 2.2. Purchase, Sale and Delivery of Securities. (a) On
the basis of the representations, warranties, agreements and covenants herein
contained and subject to the terms and conditions herein set forth, the Company
agrees that it will sell to the Initial Purchasers, and each Initial Purchaser
agrees that it will purchase, severally and not jointly, from the Company at the
Time of Purchase, the principal amount of the Notes set forth opposite the name
of such Initial Purchaser on Schedule I hereto at a price equal to 96.542% of
such principal amount.
(b) The purchase, sale and delivery of the Securities will take
place at a closing (the "Closing") at the of-
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fices of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 9:00
A.M., New York time, on June 10, 1997, or such later date and time, if any, as
the Initial Purchasers and the Company shall agree. The time at which such
Closing is concluded is herein called the "Time of Purchase."
(c) One or more certificates in definitive form for the
Securities that the Initial Purchasers have agreed to purchase hereunder, and in
such denomination or denominations and registered in such name or names as the
Initial Purchasers request upon notice to the Company at least 48 hours prior to
the Closing, shall be delivered by or on behalf of the Company to the Initial
Purchasers, against payment by or on behalf of the Initial Purchasers of the
purchase price therefor by wire transfer of immediately available funds wired in
accordance with the written instructions of the Company. The Company will make
such certificate or certificates for the Securities available for checking and
packaging by the Initial Purchasers at the offices of one of the Initial
Purchasers, or such other place as the Initial Purchasers may designate, at
least 24 hours prior to the Closing.
SECTION 2.3. Registration Rights of Holders of Securities. The
Initial Purchasers and their direct and indirect transferees of the Securities
will have such rights with respect to the registration thereof under the Act and
qualification of the Indenture under the Trust Indenture Act as are set forth in
the Registration Rights Agreement.
SECTION 2.4. Offering by the Initial Purchasers. The Initial
Purchasers propose to make an offering of the Securities at the price and upon
the terms set forth in the Final Memorandum, as soon as practicable after this
Agreement is entered into and as in the judgment of the Initial Purchasers is
advisable.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES; RESALE OF SECURITIES
SECTION 3.1. Representations and Warranties of the Company and
the Guarantors. The Company and the Guarantors, jointly and severally, represent
and warrant to and agree with each of the Initial Purchasers as follows:
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(a) Neither the Preliminary Memorandum, as of its date, nor the
Final Memorandum, as of its date and at the Time of Purchase, will contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this Section 3.1(a) do not apply to statements or omissions made in
reliance upon and in conformity with information relating to the Initial
Purchasers furnished to the Company in writing by the Initial Purchasers
expressly for use in the Final Memorandum or any amendment or supplement
thereto.
(b) The audited consolidated financial statements of the Company
and its Subsidiaries included in the Final Memorandum present fairly the
financial position, results of operations and cash flows of the Company and its
Subsidiaries at the dates and for the periods to which they relate and have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis. The audited and unaudited summary and selected financial
data and the unaudited interim financial data in the Final Memorandum present
fairly in all material respects the financial information shown therein and have
been prepared and compiled on a basis consistent with the audited financial
statements included therein. Xxxxxxx Xxxx Xxxxxxx, which has reported on the
audited financial statements included in the Final Memorandum, are independent
public accountants within the meaning of the Act.
(c) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and has
filed all reports with the Secretary of the State of Delaware required to obtain
a certificate with respect to continued subsistence in good standing from that
office. Each Subsidiary of the Company is, and at and as of the Time of Purchase
will be, a corporation duly incorporated, validly existing and in good standing
under the laws of the state or other jurisdiction of its incorporation or
organization. The Company has no Subsidiaries other than the Subsidiaries listed
on Schedule II hereto and all of the Subsidiaries of the Company are Guarantors.
Each of the Company and its Subsidiaries is, and at and as of the Time of
Purchase will be, duly qualified and in good standing as a foreign corporation,
and authorized to do business, in each jurisdiction in which the ownership or
leasing of any property or the character of its operations makes such
qualification necessary and in which the failure to so qualify would have a
Material Adverse Effect. Such jurisdictions are listed on Schedule III hereto.
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(d) As of the Time of Purchase, the Company will have the
authorized, issued and outstanding capitalization as set forth in the Final
Memorandum. All of the issued and outstanding shares of capital stock of the
Company and its Subsidiaries are, and at and as of the Time of Purchase will be,
validly issued, fully paid and nonassessable and none of such shares were or
will have been issued in violation of any preemptive or similar rights. Except
as set forth in the Final Memorandum, (i) all of the capital stock of the
Company's Subsidiaries is directly or indirectly owned by the Company, free and
clear of any Liens; (ii) there are no outstanding subscriptions, options,
warrants, rights, convertible securities or other binding agreements or
commitments of any character obligating the Company or its Subsidiaries to issue
any securities, and (iii) there is no agreement, understanding or arrangement
among the Company and any of its stockholders or any other Person relating to
the ownership or disposition of any capital stock in the Company or any of its
Subsidiaries, the election of directors of the Company or any of its
Subsidiaries, or the governance of the Company's or any of its Subsidiaries'
affairs.
(e) This Agreement has been duly, and validly authorized,
executed and delivered by the Company and each of the Guarantors and (assuming
the due authorization, execution and delivery by the Initial Purchasers) is a
legal, valid and binding agreement of the Company and each of the Guarantors,
enforceable against each of the Company and the Guarantors in accordance with
its terms except (i) that the enforcement hereof may be subject to bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally, and to
general principles of equity and the discretion of the court before which any
proceeding therefor may be brought and (ii) as any rights to indemnity or
contribution hereunder may be limited by federal and state securities laws and
public policy considerations.
(f) The Indenture has been duly and validly authorized by the
Company and each of the Guarantors and, when executed and delivered by the
Company and each of the Guarantors (assuming the due authorization, execution
and delivery by the Trustee), will constitute a legal, valid and binding
agreement of the Company and each of the Guarantors, enforceable against each of
the Company and the Guarantors in accordance with its terms except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect re-
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lating to creditors' rights generally, and (ii) general principles of equity and
the discretion of the court before which any proceeding therefor may be brought.
The Indenture meets the requirements for qualification under the Trust Indenture
Act.
(g) The Registration Rights Agreement has been duly and validly
authorized by the Company and each of the Guarantors and, when executed and
delivered by the Company and each of the Guarantors (assuming the due
authorization, execution and delivery by the Initial Purchasers), will
constitute a legal, valid and binding agreement of the Company and each of the
Guarantors, enforceable against each of the Company and the Guarantors in
accordance with its terms except (i) that the enforcement thereof may be subject
to bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, and general principles of equity and the discretion of the court
before which any proceeding therefor may be brought and (ii) as any rights to
indemnity or contribution thereunder may be limited by federal and state
securities laws and public policy considerations.
(h) The Notes are in the form contemplated by the Indenture. The
Notes, the Exchange Notes and the Private Exchange Notes have each been duly and
validly authorized by the Company and, when executed by the Company and
authenticated by the Trustee in accordance with the provisions of the Indenture
and, in the case of the Notes, delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, or, in the case of
the Exchange Notes and the Private Exchange Notes, exchanged for the Notes in
accordance with the terms of the Registration Rights Agreement, will be entitled
to the benefits of the Indenture and will constitute legal, valid and binding
obligations of the Company enforceable in accordance with their terms, except
that the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought.
(i) The Guarantees are in the form contemplated by the Indenture.
The Guarantees endorsed on the Notes and the guarantees to be endorsed on the
Exchange Notes and the Private Exchange Notes have each been duly and validly
authorized by each of the Guarantors and, when the Notes are executed by the
Company and authenticated by the Trustee in accordance with the provisions of
the Indenture and delivered to and paid for by
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the Initial Purchasers in accordance with the terms of this Agreement, the
Guarantees will be entitled to the benefits of the Indenture and will constitute
legal, valid and binding obligations of the Guarantors enforceable in accordance
with their terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought.
(j) Immediately after the consummation of the transactions
contemplated by this Agreement (including the use of proceeds from the sale of
Notes at the Time of Purchase), to the best of the Company's knowledge, the fair
value and present fair salable value of the assets of the Company (on a
consolidated basis) will exceed the sum of its stated liabilities and identified
contingent liabilities; the Company (on a consolidated basis) will not be, after
giving effect to the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby (including the use of
proceeds from the sale of Notes at the Time of Purchase), (i) left with
unreasonably small capital with which to carry on its business as it is proposed
to be conducted, (ii) unable to pay its debts (contingent or otherwise) as they
mature or (iii) otherwise insolvent.
(k) Each of the Company and the Guarantors has all requisite
corporate power and authority to (i) execute, deliver and perform its
obligations under each of the Basic Documents to the extent a party thereto
(whether or not by operation of law), (ii) execute, deliver and perform its
obligations under all other agreements and instruments to be executed and
delivered by it pursuant to or in connection with each of the Basic Documents
and (iii) issue the Securities in the manner and for the purpose contemplated by
this Agreement.
(l) Subsequent to the date as of which information is given in
the Final Memorandum to the date hereof, except as contemplated in the Final
Memorandum, there has not been (i) any event or condition that has had or that
could reasonably be expected to have a Material Adverse Effect, (ii) any
transaction entered into by the Company or any of its Subsidiaries, other than
in the ordinary course of business, that is material to the Company and its
Subsidiaries, taken as a whole, or (iii) any dividend or distribution of any
kind declared, paid or made by the Company on its Capital Stock.
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(m) There is no action, suit, investigation or proceeding before
or by any court or governmental agency or body, domestic or foreign, now pending
or, to the best knowledge of the Company and its Subsidiaries, threatened
against or affecting the Company or any of its Subsidiaries, which would, singly
or in the aggregate, have a Material Adverse Effect; all pending legal or
governmental proceedings to which the Company or any of its Subsidiaries is a
party or of which any of their respective properties or assets is the subject
which are not specifically described in the Final Memorandum, including ordinary
routine litigation incidental to their respective businesses, are considered in
the aggregate not material to the business, condition (financial or otherwise),
results of operations, properties or prospects of the Company and its
Subsidiaries taken as a whole; there have been no developments with respect to
any action, suit, investigation or proceeding, whether or not such action, suit
or proceeding is described in the Final Memorandum, which would, singly or in
the aggregate, have a Material Adverse Effect; there is no action, suit,
investigation or proceeding, governmental or otherwise, pending or, to the best
knowledge of the Company and its Subsidiaries, threatened to which the Company
or any of its Subsidiaries is or would be a party or of which the properties or
assets of the Company or any of its Subsidiaries are or may be the subject that
(i) seeks to restrain, enjoin, prevent the consummation of or otherwise
challenge any of the transactions contemplated hereby, including the issuance
and sale of the Securities by the Company and the Guarantors, or (ii) questions
the legality or validity of any such transactions.
(n) The execution, delivery and performance by the Company and
the Guarantors (to the extent a party thereto) of the Basic Documents, the
issuance and sale by the Company and the Guarantors of the Securities, and the
execution, delivery and performance of all other agreements and instruments to
be executed and delivered by the Company and the Guarantors (to the extent a
party thereto) pursuant hereto or thereto or in connection herewith or
therewith, and compliance by the Company and the Guarantors (to the extent a
party thereto) with the terms and provisions hereof and thereof, do not and will
not (i) violate any provision of any statute, law, rule or regulation
(including, without limitation, Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System), order, writ, judgment, decree,
determination or award presently in effect or in effect at the Time of Purchase
having applicability to the Company or any of its Subsidiaries, (ii) conflict
with or result in a breach of or constitute a default under the certificate of
incorporation or by-laws of the Company or any of
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its Subsidiaries, or any indenture or loan or credit agreement, or any other
material agreement or instrument, to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries or
any of their respective properties or assets may be bound or affected, or (iii)
except as contemplated by the Basic Documents, result in, or require the
creation or imposition of, any Lien upon or with respect to any of the
properties or assets now owned or hereafter acquired by the Company or any of
its Subsidiaries, except, in each case, where such violation, conflict, default
or creation or imposition of any Lien would not have a Material Adverse Effect.
(o) There exists as of the date hereof (after giving effect to
the transactions contemplated by each of the Basic Documents) no event or
condition that would constitute a default or an event of default (in each case
as defined in each of the Basic Documents) under any of the Basic Documents that
would result in a Material Adverse Effect.
(p) None of the Company or any of its Subsidiaries is (i) in
violation of its respective certificate of incorporation or by-laws, (ii) in
default (nor will an event occur which with notice or passage of time or both
would constitute such a default) under or in violation of any indenture or loan
or credit agreement or any other material agreement or instrument to which it is
a party or by which it or any of its properties or assets may be bound or
affected, (iii) in violation of any order of any court, arbitrator or
governmental body, or (iv) in violation of or will have violated any statute,
rule or regulation of any governmental authority, except in each case, which
default or violation would not (y) affect the legality, validity or
enforceability of any of the Basic Documents in any material respect or (z) have
a Material Adverse Effect.
(q) No authorization, consent, approval, license, qualification
or formal exemption from, nor any filing, declaration or registration with, any
court, governmental agency or regulatory authority, securities exchange or any
third party is required in connection with the execution, delivery or
performance by the Company or any of its Subsidiaries (to the extent they are a
party thereto) of any of the Basic Documents, except (i) as may be required
under state securities or "blue sky" laws or the laws of any foreign
jurisdiction in connection with the offer and sale of the Securities or (ii) as
would not have a Material Adverse Effect. All such authorizations, consents,
approvals, licenses, qualifications, exemptions, filings, declarations and
registrations set forth in the Final Memorandum
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(other than as disclosed therein) which are required to have been obtained by
the date hereof have been obtained or made, as the case may be, and are in full
force and effect and not the subject of any pending or, to the best knowledge of
the Company, threatened attack by appeal or direct proceeding or otherwise.
(r) None of the Company or its Subsidiaries is, or immediately
after the Time of Purchase will be, an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(s) The execution and delivery of this Agreement and the other
Basic Documents and the sale of the Securities to the Initial Purchasers will
not involve any non-exempt prohibited transaction within the meaning of Section
406 of ERISA or Section 4975 of the Code on the part of the Company or any of
its Subsidiaries. No Reportable Event (as defined in Section 4043 of ERISA) has
occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Employee Benefit Plan
(as defined in Section 3(3) of ERISA), and the Company and its Subsidiaries have
complied in all material respects with the applicable provisions of ERISA and
the Code in connection with each Employee Benefit Plan. The present value of all
benefits vested under each Employee Benefit Plan maintained by the Company or
any person or entity treated with the Company as a single employer under Section
414 of ERISA (a "Commonly Controlled Entity") (based on the current liability,
interest rate and other assumptions used in preparation of the plan's Form 5500
Annual Report) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such plan allocable to such accrued benefits. None of the Company or
any Commonly Controlled Entity of the Company has had a complete or partial
withdrawal from any Multiemployer Plan (as defined in ERISA), and none of the
Company or any Commonly Controlled Entity of the Company would become subject to
any liability under ERISA if the Company or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which such representation is made or
deemed made. No such Multiemployer Plan is in reorganization or insolvent. There
are no material liabilities of the Company or any Commonly Controlled Entity for
post-retirement benefits to be provided to their current and former employees
under Plans which are welfare benefit plans (as described in Section 3(1) of
ERISA). The Company and its Subsidiaries are in compliance
18
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with all applicable laws with respect to all employee benefit plans maintained
or contributed to in respect of employees other than those employed in the
United States ("Foreign Plans"). There are no material unfunded liabilities in
respect of the Foreign Plans.
(t) The Company and each of its Subsidiaries have good and valid
title to, or valid and enforceable leasehold interests in, all properties and
assets identified in the Final Memorandum as owned or leased, respectively, by
each of them which are material to the business of the Company and its
Subsidiaries, taken as a whole, free and clear of all Liens, except (i) such
Liens as are described in the Final Memorandum or (ii) Liens created in the
ordinary course of business which are Permitted Liens (as defined in the
Indenture). All of the leases material to the business of the Company or any of
its Subsidiaries and under which the Company or any of its Subsidiaries holds
properties described in the Final Memorandum, are valid and binding as leased by
them, with such exceptions as are not material and do not interfere with the use
made and proposed to be made of such properties by the Company or any of its
Subsidiaries.
(u) No form of general solicitation or general advertising was
used by the Company, any of its Subsidiaries or any of their respective
representatives (other than the Initial Purchasers and their respective
representatives, as to whom no representation is made) in connection with the
offer and sale of the Securities. Neither the Company, any of its Subsidiaries
nor any Person authorized to act for any of them has, either directly or
indirectly, sold or offered for sale any of the Securities or any other similar
security of the Company to, or solicited any offers to buy any thereof from, or
has otherwise approached or negotiated in respect thereof with, any Person or
Persons other than with or through the Initial Purchasers; and the Company
agrees that neither it, any of its Subsidiaries nor any Person acting on its or
their behalf will sell or offer for sale any Securities to, or solicit any
offers to buy any Securities from, or otherwise approach or negotiate in respect
thereof with, any Person or Persons so as thereby to bring the issuance or sale
of any of the Securities within the provisions of Section 5 of the Act.
(v) All tax returns required to be filed by the Company or any of
its Subsidiaries in any jurisdiction (including foreign jurisdictions) have been
duly filed and all taxes, assessments, fees and other charges including, without
limitation, withholding taxes, penalties, and interest ("Taxes") due
19
-16-
or claimed to be due have been paid, other than those Taxes being contested in
good faith and for which adequate reserves or accruals have been established in
accordance with generally accepted accounting principles, except where the
failure to file such returns or to pay such Taxes will not have a Material
Adverse Effect. The Company knows of no actual or proposed additional tax
assessments for any fiscal period against the Company or any of its Subsidiaries
that would have a Material Adverse Effect.
(w) The Company and its Subsidiaries are the owners or licensees
of all trade names, unregistered trademarks and service marks, brand names,
patents, registered and unregistered copyrights, registered trademarks and
service marks, and all applications for any of the foregoing, and all permits,
grants and licenses or other rights with respect thereto, the absence of which
would have a Material Adverse Effect. None of the Company or any of its
Subsidiaries has been charged with any material infringement of any intangible
property of the character described above or been notified or advised of any
material claim of any other Person relating to any of the intangible property,
which infringements or claims would have a Material Adverse Effect.
(x) Each of the Basic Documents conforms in all material respects
to the descriptions thereof in the Final Memorandum.
(y) Assuming the accuracy of the Initial Purchasers'
representations and warranties set forth in Section 3.2 hereof, and the due
performance by the Initial Purchasers of the covenants and agreements set forth
in Section 3.2 hereof, the offer and sale of the Securities to the Initial
Purchasers in the manner contemplated by this Agreement and the Memorandum does
not require registration under the Act and the Indenture does not require
qualification under the Trust Indenture Act of 1939, as amended.
(z) Each of the Company and its Subsidiaries is in compliance
with the common law and all federal, state, local and foreign laws, and any
rules, regulations, orders, decrees, judgments or injunctions issued or
promulgated thereunder relating to pollution and protection of public and
employee health and the environment ("Environmental Law") and with the terms and
conditions of any permit, license or approval required thereunder in connection
with the ownership, operation or use of its business, property and assets where
the failure to be in such compliance could have, individually or in the
ag-
20
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gregate, a Material Adverse Effect; none of the Company or any of its
Subsidiaries is subject to any liability, absolute or contingent, under any
Environmental Law which liability would, individually or in the aggregate,
result in a Material Adverse Effect; there is no civil, criminal or
administrative action, suit, demand, hearing, notice of violation or deficiency,
investigation, proceeding or notice of potential responsibility or liability or
demand letter or request for information pending or, to the best knowledge of
the Company, and its subsidiaries threatened against the Company or any of its
Subsidiaries under any Environmental Law which, if determined adversely to the
Company or any such Subsidiary, would result in a Material Adverse Effect.
(aa) Except as disclosed under the caption "Risk Factors - Labor
Matters" in the Final Memorandum, there is no strike, labor dispute, slowdown or
work stoppage with the employees of the Company or any of its Subsidiaries which
is pending or, to the best knowledge of the Company or any of its Subsidiaries,
threatened.
(bb) Each of the Company and its Subsidiaries possesses all
licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, presently required or
necessary to own or lease, as the case may be, and to operate its respective
properties and to carry on its respective businesses as now or proposed to be
conducted as set forth in the Final Memorandum ("Permits"), except where the
failure to obtain such Permits would not have a Material Adverse Effect; each of
the Company and its Subsidiaries has fulfilled and performed all of its
obligations with respect to such Permits and no event has occurred which allows,
or after notice or lapse of time would allow, revocation or termination thereof
or results in any other material impairment of the rights of the holder of any
such Permit; and none of the Company or its Subsidiaries has received any notice
of any proceeding relating to revocation or modification of any such Permit,
except as described in the Final Memorandum and except where such revocation or
modification would not have a Material Adverse Effect.
(cc) Each of the Company and its Subsidiaries carries insurance
(including self insurance) in such amounts and covering such risks as in its
reasonable determination is adequate for the conduct of its business and the
value of its properties. In the ordinary course of their respective busi-
21
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nesses, the Company and its Subsidiaries conduct reviews of the effect of
product liability and other litigation on the business, operations and
properties of the Company and its Subsidiaries, in the course of which they
identify and evaluate associated costs and liabilities (including, without
limitation, any potential liabilities to third parties); on the basis of such
reviews, the Company and its Subsidiaries have reasonably concluded that such
associated costs and liabilities would not, singly or in the aggregate, have a
Material Adverse Effect. There has not been, or become known, any adverse
development with respect to pending or threatened claims involving product
liability against the Company or any of its Subsidiaries or involving related
insurance coverages, except, in each case, as would not have, singly or in the
aggregate, a Material Adverse Effect. The reserves of the Company with respect
to product liability and related bodily injury claims, both before and after
giving effect to net estimated recoveries from products liability insurers, are
reasonable and represent the best judgment of the Company, after consultation
with its advisors and counsel, with respect to such matters.
(dd) Each of the Company and its Subsidiaries (i) makes and keeps
accurate books and records and (ii) maintains internal accounting controls which
provide reasonable assurance that (A) transactions are executed in accordance
with management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(ee) Other than holders of the Securities, no holder of
securities of the Company or any Subsidiary of the Company will be entitled to
have such securities registered under the registration statements required to be
filed by the Company pursuant to the Registration Rights Agreement.
(ff) No securities of the Company or any of its Subsidiaries are
of the same class (within the meaning of Rule 144A under the Act) as the
Securities and listed on a national securities exchange registered under Section
6 of the Exchange Act, or quoted in a U.S. automated inter-dealer quotation
system.
(gg) Neither the Company nor any of its Subsidiaries has taken,
nor will any of them take, directly or indirectly, any action designed to, or
that might be reasonably expected
22
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to, cause or result in stabilization or manipulation of the price of the Notes.
(hh) None of the Company, its Subsidiaries, any of their
respective Affiliates or any Person acting on its or their behalf (other than
the Initial Purchasers) has engaged in any directed selling efforts (as that
term is defined in Regulation S under the Act ("Regulation S") with respect to
the Securities and the Company, its Subsidiaries and their respective Affiliates
and any person acting on its or their behalf (other than the Initial Purchasers)
have acted in accordance with the offering restrictions requirement of
Regulation S.
(ii) All of the statistical and market and industry-related data
included in the Final Memorandum are based on or derived from sources which the
Company and the Guarantors believe to be reliable and accurate or represent the
Company's good faith estimates that are made on the basis of data derived from
such sources.
(jj) None of the Company or any of the Guarantors knows of any
claims for services, either in the nature of a finder's fee or financial
advisory fee, with respect to the offering of the Securities and the
transactions contemplated by the Final Memorandum.
SECTION 3.2. Resale of Securities. Each of the Initial Purchasers
represents and warrants as to itself only that it is a "qualified institutional
buyer" as defined in Rule 144A under the Act ("QIB"). Each of The Initial
Purchasers agrees with the Company as to itself only that (a) it has not and
will not, directly or indirectly, solicit offers for, or offer or sell, the
Securities by any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Act; (b) it has not
and will not, directly or indirectly, engage in any "directed selling efforts"
(as defined in Regulation S under the Act); and (c) it has and will solicit
offers for the Securities only from, and will offer the Securities only to (A)
in the case of offers inside the United States, (i) Persons whom the Initial
Purchasers reasonably believe to be QIBs or, if any such Person is buying for
one or more institutional accounts for which such Person is acting as fiduciary
or agent, only when such Person has represented to the Initial Purchasers that
each such account is a QIB, to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A, and, in each case, in
transactions under Rule 144A or (ii) a limited number
23
-20-
of other institutional investors reasonably believed by the Initial Purchasers
to be "Accredited Investors" (as defined in Rule 501(a)(1), (2), (3) or (7) of
the Act) that, prior to their purchase of the Securities, deliver to the Initial
Purchasers a letter containing the representations and agreements set forth in
Annex A to the Final Memorandum and (B) in the case of offers outside the United
States, to Persons other than U.S. Persons ("foreign purchasers," which term
shall include dealers or other professional fiduciaries in the United States
acting on a discretionary basis for foreign beneficial owners (other than an
estate or trust)); provided, however, that, in the case of this clause (B), in
purchasing such Securities such Persons are deemed to have represented and
agreed as provided under the caption "Notice to Investors" contained in the
Final Memorandum.
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
SECTION 4.1. Conditions Precedent to Obligations of the Initial
Purchasers. The obligation of each of the Initial Purchasers to purchase the
Securities to be purchased by it hereunder is subject, at the Time of Purchase,
to the satisfaction of the following conditions:
(a) The Initial Purchasers shall have received an opinion,
addressed to the Initial Purchasers in form and substance reasonably
satisfactory to counsel to the Initial Purchasers and dated the Time of
Purchase, from Pillsbury Madison & Sutro LLP, counsel to the Company and the
Guarantors, substantially in the form of Exhibit 1 hereto.
(b) The Initial Purchasers shall have received an opinion,
addressed to the Initial Purchasers in form and substance reasonably
satisfactory to the Initial Purchasers and dated the Time of Purchase, of Xxxxxx
Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, substantially in the form
of Exhibit 2 hereto.
In rendering such opinions in accordance with Sections 4.1(a) and
(b), each such counsel may rely as to factual matters upon certificates or other
documents furnished by officers and directors of the Company and the Guarantors
and representations of the Initial Purchasers and by government officials, and
upon such other documents as such counsel deem ap-
24
-21-
propriate as a basis for their opinion. Each such counsel may specify the
jurisdictions in which it is admitted to practice and that it is not admitted to
practice in any other jurisdiction or an expert in the law of any other
jurisdiction. To the extent such opinion concerns the laws of any other such
jurisdiction such counsel may rely upon the opinion of counsel (satisfactory to
the Initial Purchasers) admitted to practice in such jurisdiction. Any opinion
relied upon by such counsel as aforesaid shall be delivered to the Initial
Purchasers together with the opinion of such counsel, which opinion shall state
that such counsel believes that their and the Initial Purchasers' reliance
thereon is justified.
(c) The Initial Purchasers shall have received from Xxxxxxx Xxxx
Xxxxxxx a comfort letter or letters dated the date hereof and the Time of
Purchase in form and substance reasonably satisfactory to counsel to the Initial
Purchasers.
(d) The representations and warranties made by each of the
Company and the Guarantors herein shall be true and correct in all respects
(except for changes expressly provided for in this Agreement) at and as of the
Time of Purchase with the same effect as though such representations and
warranties had been made and as of the Time of Purchase, and the Company and
each Guarantor shall have complied in all material respects with all agreements
as set forth in or contemplated hereunder and in the other Basic Documents
required to be performed by it at or prior to the Time of Purchase.
(e) Subsequent to the date of the Final Memorandum, (i) there
shall not have been any change, or any development involving a prospective
change, which has had or could have a Material Adverse Effect or any event or
development relating to or involving the Company or any of its Subsidiaries or
any of the respective officers or directors of the Company or any of its
Subsidiaries that makes any statement made in the Memorandum untrue or that, in
the opinion of the Company and its counsel or the Initial Purchasers and their
counsel, requires the making of any addition to or change in the Memorandum in
order to state a material fact required by the Act or any other law to be stated
therein or necessary in order to make the statements made therein not
misleading, and (ii) the Company and its Subsidiaries shall have conducted their
respective businesses only in the ordinary course.
(f) At the Time of Purchase and after giving effect to the
consummation of the transactions contemplated by this
25
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Agreement and the other Basic Documents, there shall exist no Default or Event
of Default (as defined in the Indenture).
(g) The purchase of and payment for the Securities by the Initial
Purchasers hereunder shall not be prohibited or enjoined (temporarily or
permanently) by any applicable law or governmental regulation (including,
without limitation, Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System).
(h) At the Time of Purchase, the Initial Purchasers shall have
received certificates, dated the Time of Purchase, from the Company and each
Guarantor stating that the conditions specified in Sections 4.1(d), (e), (f) and
(k) have been satisfied or duly waived at the Time of Purchase.
(i) Each of the Basic Documents and each other agreement or
instrument executed in connection therewith shall be reasonably satisfactory in
form and substance to the Initial Purchasers and shall have been executed and
delivered by all the respective parties thereto and shall be in full force and
effect, and there shall have been no material amendments, alterations,
modifications or waivers of any provision thereof since the date of this
Agreement.
(j) All proceedings taken in connection with the issuance of the
Securities and the transactions contemplated by this Agreement, the other Basic
Documents and all documents and papers relating thereto shall be reasonably
satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
The Initial Purchasers and counsel to the Initial Purchasers shall have received
copies of such papers and documents as they may reasonably request in connection
therewith, all in form and substance reasonably satisfactory to them.
(k) None of the sale of the Securities hereunder or any of the
transactions contemplated by the Basic Documents shall have been enjoined
(temporarily or permanently) at the Time of Purchase; and there shall not have
been any legal action, order, decree or other administrative proceeding
instituted or threatened against the Company or any of its Subsidiaries or
against any of the Initial Purchasers relating to the issuance of the Securities
or the Initial Purchasers' activities in connection therewith or any other
transaction contemplated by any of the Basic Documents or the Memorandum.
(l) There shall not have been any change in the capital stock of
the Company nor any material increase in the
26
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consolidated short-term or long-term debt of the Company from that set forth or
contemplated in the Memorandum (or any amendment or supplement thereto) or
contemplated by the Basic Documents and (b) the Company shall not have any
liabilities or obligations, contingent or otherwise (whether or not in the
ordinary course of business), that are material to the Company other than those
reflected in the Memorandum (or any amendment or supplement thereto) or
contemplated by the Basic Documents.
(m) The Company shall apply the proceeds from the issuance and
sale of the Notes as described under "Use of Proceeds" in the Memorandum.
(n) At the Time of Purchase, the Initial Purchasers shall have
received a letter, dated the Time of Purchase, from the chief financial officer
of the Company with respect to the solvency of the Company and its Subsidiaries
in form, scope and substance reasonably satisfactory to the Initial Purchasers.
(o) There shall not have been any announcement by any "nationally
recognized statistical rating organization," as defined for purposes of Rule
436(g) under the Act, that (A) it is downgrading its rating assigned to any debt
securities of the Company, or (B) it is reviewing its rating assigned to any
debt securities of the Company with a view to possible downgrading, or with
negative implications, or direction not determined.
(p) On or before the Closing, the Initial Purchasers shall have
received the Registration Rights Agreement executed by the Company and such
agreement shall be in full force and effect at all times from and after the Time
of Purchase.
(q) On or before the Closing, the Initial Purchasers and counsel
to the Initial Purchasers shall have received such further documents, opinions,
certificates and schedules or other instruments relating to the business,
corporate, legal and financial affairs of the Company and its Subsidiaries as
they may reasonably request.
27
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ARTICLE V
COVENANTS
SECTION 5.1. Covenants of the Company and the Guarantors. The
Company and the Guarantors covenant and agree with the Initial Purchasers that:
(a) Neither the Company nor any Guarantor will amend or
supplement the Final Memorandum or any amendment or supplement thereto of which
the Initial Purchasers shall not previously have been advised and furnished a
copy for a reasonable period of time prior to the proposed amendment or
supplement and as to which the Initial Purchasers shall not have given its
consent, which consent shall not be unreasonably withheld. The Company will
promptly, upon the reasonable request of the Initial Purchasers or counsel to
the Initial Purchasers, make any amendments or supplements to the Preliminary
Memorandum or the Final Memorandum that may be necessary or advisable in the
opinion of the Initial Purchasers or counsel to the Initial Purchasers in
connection with the resale of the Securities by the Initial Purchasers.
(b) The Company and the Guarantors will cooperate with the
Initial Purchasers in arranging for the qualification of the Securities for
offering and sale under the securities or "Blue Sky" laws of such jurisdictions
as the Initial Purchasers may designate and will continue such qualifications in
effect for as long as may be reasonably necessary to complete the resale of the
Securities; provided, however, that in connection therewith, none of the Company
and the Guarantors shall be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction or subject
itself to taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject.
(c) If, at any time prior to the completion of the distribution
by the Initial Purchasers of the Securities, the Exchange Notes or the Private
Exchange Notes, any event occurs or information becomes known as a result of
which the Final Memorandum as then amended or supplemented would include any
untrue statement of a material fact, or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if for any other reason it is necessary at
any time to amend or supplement the Final Memorandum to comply with applicable
law, the Company and the Guarantors will promptly no-
28
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tify the Initial Purchasers thereof (who thereafter will not use such Final
Memorandum until appropriately amended or supplemented) and will prepare, at the
expense (subject to Section 6.1 of this Agreement) of the Company and the
Guarantors, an amendment or supplement to the Final Memorandum that corrects
such statement or omission or effects such compliance; provided, however, that
the obligations of the Company and the Guarantors hereunder shall not be
applicable to the extent resale by the Initial Purchasers may be accomplished
pursuant to a Registration Statement (as defined in the Registration Rights
Agreement).
(d) The Company will, without charge, provide to the Initial
Purchasers and to counsel to the Initial Purchasers as many copies of the
Preliminary Memorandum and the Final Memorandum or any amendment or supplement
thereto as the Initial Purchasers may reasonably request.
(e) The Company will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For and during the period ending on the date no Securities
are outstanding, the Company will furnish to the Initial Purchasers copies of
all reports and other communications (financial or otherwise) furnished by the
Company or any Guarantor to the Trustee or the holders of the Securities and,
promptly after available, copies of any reports or financial statements
furnished to or filed by the Company or any of its Subsidiaries with the
Commission or any national securities exchange on which any class of securities
of the Company or any of its Subsidiaries may be listed.
(g) Prior to the Time of Purchase, the Company will furnish to
the Initial Purchasers, as soon as they have been prepared, a copy of any
unaudited interim financial statements of the Company and its Subsidiaries for
any period subsequent to the period covered by the most recent financial
statements appearing in the Final Memorandum.
(h) None of the Company or any of its Affiliates will sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect of any
"security" (as defined in the Act) which could be integrated with the sale of
the Securities in a manner which would require the registration under the Act of
the Securities.
29
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(i) The Company will not, and will not permit any of its
Subsidiaries to, solicit any offer to buy or offer to sell the Securities by
means of any form of general solicitation or general advertising (as those terms
are used in Regulation D under the Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the
Company will make available, upon request, to any seller of such Securities the
information specified in Rule 144A(d)(4) under the Act, unless the Company is
then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Company and the Guarantors will use their best efforts to
(i) permit the Notes to be included for quotation on PORTAL and (ii) permit the
Notes to be eligible for clearance and settlement through The Depository Trust
Company.
(l) The Company and the Guarantors will use their best efforts to
do and perform all things required to be done and performed by them under this
Agreement and the other Basic Documents prior to or after the Closing and to
satisfy all conditions precedent on its part to the obligations of the Initial
Purchasers to purchase and accept delivery of the Securities.
ARTICLE VI
FEES
SECTION 6.1. Costs, Expenses and Taxes. The Company and the
Guarantors jointly and severally agree to pay, except as otherwise specified,
all costs and expenses incident to the performance of their obligations under
this Agreement, whether or not the transactions contemplated herein are
consummated or this Agreement is terminated pursuant to Section 8.2 hereof,
including, but not limited to, all costs and expenses incident to (i) its
negotiation, preparation, printing, typing, reproduction, execution and delivery
of this Agreement and each of the other Basic Documents, any amendment or
supplement to or modification of any of the foregoing and any and all other
documents furnished pursuant hereto or thereto or in connection herewith or
therewith, (ii) any costs of printing the Preliminary Memorandum and the Final
Memorandum and any amendment or supplement thereto, any other marketing related
materials and any "Blue Sky" memoranda (which shall include the reasonable
disbursements of counsel to the Initial Purchasers in respect
30
-27
thereof), to the extent provided in the engagement letter dated May 16, 1997,
between the Company and CIBC Wood Gundy Securities Corp. (the "Engagement
Letter"), (iii) all arrangements relating to the delivery to the Initial
Purchasers of copies of the foregoing documents, (iv) the fees and disbursements
of the counsel, the accountants and any other experts or advisors retained by
the Company, (v) the fees and disbursements of counsel to the Initial
Purchasers, to the extent provided in the Engagement Letter, (vi) preparation
(including printing), issuance and delivery to the Initial Purchasers of the
Securities, (vii) the qualification of the Securities under state securities and
"Blue Sky" laws, including filing fees and reasonable fees and disbursements of
counsel to the Initial Purchasers relating thereto, (viii) its expenses and the
cost of any meetings with prospective investors in the Securities, to the extent
provided in the Engagement Letter, (ix) fees and expenses of the Trustee
including fees and expenses of counsel to the Trustee, (x) all expenses and
listing fees incurred in connection with the application for quotation of the
Securities on PORTAL, (xi) any fees charged by investment rating agencies for
the rating of the Securities and (xii) except as limited by Article VII, all
costs and expenses (including, without limitation, reasonable attorneys' fees
and expenses), if any, in connection with the enforcement of this Agreement, the
Securities or any other agreement furnished pursuant hereto or thereto or in
connection herewith or therewith. In addition, the Company and the Guarantors
shall pay any and all stamp, transfer and other similar taxes (but excluding any
income, franchise, personal property, ad valorem or gross receipts taxes)
payable or determined to be payable in connection with the execution and
delivery of this Agreement, any of the other Basic Documents or the issuance of
the Securities, and shall save and hold each of the Initial Purchasers harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying, or omission to pay, such taxes (other than if such delay is
caused by the Initial Purchasers).
ARTICLE VII
INDEMNITY
SECTION 7.1. Indemnity by the Company and the Guarantors.
(a) Indemnification by the Company and the Guarantors. The
Company and the Guarantors, jointly and severally,
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agree and covenant to hold harmless and indemnify the Initial Purchasers and
their Affiliates (including any director, officer, employee, agent or
controlling Person of any of the foregoing) from and against any losses, claims,
damages, liabilities and expenses (including expenses of investigation) to which
the Initial Purchasers and their Affiliates may become subject arising out of or
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Memorandum and any amendments or supplements thereto or arising
out of or based upon the omission or alleged omission to state in the Memorandum
a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the Company and the
Guarantors shall not be liable under this paragraph (a) to the extent that such
losses, claims, damages or liabilities arose out of or are based upon an untrue
statement or omission made in any of the documents referred to in this paragraph
(a) in reliance upon and in conformity with the information relating to the
Initial Purchasers furnished in writing by the Initial Purchasers for inclusion
therein (or for a breach by the Initial Purchasers of any representation or
warranty contained in this Agreement); provided, further, that the Company and
the Guarantors shall not be liable under this paragraph (a) to the extent that
such losses, claims, damages or liabilities arose out of or are based upon an
untrue statement or omission made in any Memorandum that is corrected in the
Final Memorandum (or any amendment or supplement thereto) if the person
asserting such loss, claim, damage or liability purchased Securities from the
Initial Purchasers in reliance on such Memorandum but was not given the Final
Memorandum (or any amendment or supplement thereto) on or prior to the
confirmation of the sale of such Securities. The Company and the Guarantors
further agree to reimburse the Initial Purchasers for any reasonable legal and
other expenses as they are incurred by them in connection with investigating,
preparing to defend or defending any lawsuits, claims or other proceedings or
investigations arising in any manner out of or in connection with such Person
being an Initial Purchaser; provided that if the Company or a Guarantor
reimburses the Initial Purchasers hereunder for any expenses incurred in
connection with a lawsuit, claim or other proceeding for which indemnification
is sought, the Initial Purchasers hereby agree to refund such reimbursement of
expenses to the extent that the losses, claims, damages or liabilities arise out
of or are based upon an untrue statement or omission made in any of the
documents referred to in this paragraph (a) in reliance upon and in conformity
with the information relating to the Initial Purchasers furnished in writing by
the Initial Purchasers for inclusion therein (or for a breach by the Ini-
32
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tial Purchasers of any representation or warranty contained in this Agreement).
The Company further agrees that the indemnification, contribution and
reimbursement commitments set forth in this Article VII shall apply whether or
not any Initial Purchaser is a formal party to any such lawsuits, claims or
other proceedings. The indemnity, contribution and expense reimbursement
obligations of the Company and each Guarantor under this Article VII shall be in
addition to any liability the Company or Guarantor may otherwise have.
(b) Indemnification by the Initial Purchasers. The Initial
Purchasers severally agree and covenant to hold harmless and indemnify the
Company and any Affiliates thereof (including any director, officer, employee,
agent or controlling Person of any of the foregoing) from and against any
losses, claims, damages, liabilities and expenses insofar as such losses,
claims, damages, liabilities or expenses arise out of or are based upon any
untrue statement of any material fact contained in the Memorandum, or any
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or omission was made
in reliance upon and in conformity with the information relating to the Initial
Purchasers furnished in writing by the Initial Purchasers for inclusion therein.
The indemnity, contribution and expense reimbursement obligations of the Initial
Purchasers under this Article VII shall be in addition to any liability the
Initial Purchasers may otherwise have.
(c) Procedure. If any Person shall be entitled to indemnity
hereunder (each an "Indemnified Party"), such Indemnified Party shall give
prompt written notice to the party or parties from which such indemnity is
sought (each an "Indemnifying Party") of the commencement of any action, suit,
investigation or proceeding, governmental or otherwise (a "Proceeding"), with
respect to which such Indemnified Party seeks indemnification or contribution
pursuant hereto; provided, however, that the failure so to notify the
Indemnifying Parties shall not relieve the Indemnifying Parties from any
obligation or liability except to the extent that the Indemnifying Parties have
been prejudiced materially by such failure. The Indemnifying Parties shall have
the right, exercisable by giving written notice to an Indemnified Party promptly
after the receipt of written notice from such Indemnified Party of such
Proceeding, to assume, at the Indemnifying Parties' expense, the defense of any
such Proceeding, with counsel reasonably satisfactory to such Indemnified Party;
provided, how-
33
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ever, that an Indemnified Party or parties (if more than one such Indemnified
Party is named in any Proceeding) shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party or parties unless: (1) the Indemnifying Parties agree to pay
such fees and expenses; or (2) the Indemnifying Parties fail promptly to assume
the defense of such Proceeding or fail to employ counsel reasonably satisfactory
to such Indemnified Party or parties; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified Party
or parties and the Indemnifying Party or an Affiliate of the Indemnifying Party
and such Indemnified Parties, and the Indemnified Parties shall have been
advised in writing by counsel that there may be one or more legal defenses
available to such Indemnified Party or parties that are different from or
additional to those available to the Indemnifying Parties, in which case, if
such Indemnified Party or parties notifies the Indemnifying Parties in writing
that it elects to employ separate counsel at the expense of the Indemnifying
Parties, the Indemnifying Parties shall not have the right to assume the defense
thereof with respect to the Indemnified Parties and such counsel shall be at the
expense of the Indemnifying Parties, it being understood, however, that the
Indemnifying Parties shall not, in connection with any one such Proceeding or
separate but substantially similar or related Proceedings in the same
jurisdiction, arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for such Indemnified Party
or parties, or for fees and expenses that are not reasonable. No Indemnified
Party or Parties will settle any Proceeding without the consent of the
Indemnifying Party or parties (but such consent shall not be unreasonably
withheld). No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened Proceeding
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 or claims that are the subject of such Proceeding.
SECTION 7.2. Contribution. If for any reason the indemnification
provided for in Section 7.1 of this Agreement is unavailable to an Indemnified
Party, or insufficient to hold it harmless, in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each applicable
34
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Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect (i) the relative benefits received by the Indemnifying
Party on the one hand and the Indemnified Party on the other or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only the relative benefits received by the Indemnifying Party on the
one hand and the Indemnified Party on the other, but also the relative fault of
the Indemnifying and Indemnified Parties 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 Indemnifying and Indemnified Parties shall be deemed to be in the same
proportion as the total proceeds from the offering of the Securities (before
deducting expenses, but after giving effect to the Initial Purchasers' discount)
received by the Company bear to the total discounts and commissions received by
the Initial Purchasers. The relative fault of the Indemnifying and Indemnified
Parties 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
Indemnifying or Indemnified Parties and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages and liabilities referred to above shall be deemed to include any
legal or other fees or expenses incurred by such party in connection with
investigating or defending any such claim.
The Company, each of the Guarantors and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to the
immediately preceding paragraph were determined pro rata or per capita or by any
other method of allocation which does not take into account the equitable
considerations referred to in such paragraph. Notwithstanding any other
provision of this Section 7.2, the Initial Purchasers shall not be obligated to
make contributions hereunder that in the aggregate exceed the total discounts,
commissions and other compensation received by the Initial Purchasers under this
Agreement, less the aggregate amount of any damages that the Initial Purchasers
have otherwise been required to pay by reason of the untrue or alleged untrue
statements or a breach of a representation or warranty or the omissions or
alleged omissions to state a material fact. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
35
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Act) shall be entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation.
SECTION 7.3. Registration Rights Agreement. Notwithstanding
anything to the contrary in this Article VII, the indemnification and
contribution provisions of the Registration Rights Agreement shall govern any
claim with respect thereto.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Survival of Provisions. The representations,
warranties and covenants of the Company, its officers and the Initial Purchasers
made herein, the indemnity and contribution agreements contained herein and each
of the provisions of Articles VI, VII and VIII shall remain operative and in
full force and effect regardless of (a) the investigation made by or on behalf
of the Company, the Guarantors, the Initial Purchasers or any Indemnified Party,
(b) acceptance of any of the Securities and payment therefor, (c) any
termination of this Agreement or (d) disposition of the Securities by the
Initial Purchasers whether by redemption, exchange, sale or otherwise.
SECTION 8.2. Termination. (a) This Agreement may be terminated in
the sole discretion of the Initial Purchasers by notice to the Company given
prior to the Time of Purchase in the event that the Company or any Guarantor
shall have failed, refused or been unable to perform all obligations and satisfy
all conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Closing:
(i) the Company or any of its Subsidiaries shall have sustained
any loss or interference with respect to its businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any strike, labor dispute, slow down or work stoppage or any
legal or governmental proceeding, which loss or interference, in the sole
judgment of the Initial Purchasers, has had or has a Material Adverse Effect, or
there shall have been, in the sole judgment of the Initial Purchaser, any event
or development that, individually or in the aggregate, has or could have a
Material Adverse Effect (including without limitation a change in control of the
Company or any of its Subsidiaries),
36
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except in each case as described in the Final Memorandum (exclusive of any
amendment or supplement thereto);
(ii) trading in securities of the Company or in securities
generally on the New York Stock Exchange, American Stock Exchange or the NASDAQ
National Market shall have been suspended or minimum or maximum prices shall
have been established on any such exchange or market;
(iii) a banking moratorium shall have been declared by New York
or United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or (B) an outbreak
or escalation of any other insurrection or armed conflict involving the United
States or any other national or international calamity or emergency, or (C) any
material change in the financial markets of the United States which, in the case
of (A), (B) or (C) above and in the sole judgment of the Initial Purchasers,
makes it impracticable or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Final Memorandum; or
(v) any securities of the Company or any of its Subsidiaries
shall have been downgraded or placed on any "watch list" for possible
downgrading by any nationally recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 8.2
shall be without liability of any party to any other party except as provided in
Section 8.1 hereof.
SECTION 8.3. No Waiver; Modifications in Writing. No failure or
delay on the part of the Company, a Guarantor or the Initial Purchasers in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the Company, a
Guarantor or the Initial Purchasers at law or in equity or otherwise. No waiver
of or consent to any departure by the Company, a Guarantor or the Initial
Purchasers from any provision of this Agreement shall be effective unless signed
in writing by the party entitled to the benefit thereof, provided that notice of
any such waiver shall be given to each party hereto as set forth below. Except
as otherwise provided herein, no amendment, modification or
37
-34-
termination of any provision of this Agreement shall be effective unless signed
in writing by or on behalf of each of the Company, the Guarantors and the
Initial Purchasers. Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this Agreement, and
any consent to any departure by the Company, a Guarantor or the Initial
Purchasers from the terms of any provision of this Agreement, shall be effective
only in the specific instance and for the specific purpose for which made or
given. Except where notice is specifically required by this Agreement, no notice
to or demand on the Company or any Guarantor in any case shall entitle the
Company or any Guarantor to any other or further notice or demand in similar or
other circumstances.
SECTION 8.4. Information Supplied by the Initial Purchasers. The
statements set forth in the legend in the first paragraph on page i of the Final
Memorandum and in the seventh paragraph under the heading "Plan of Distribution"
in the Final Memorandum (to the extent such statements relate to the Initial
Purchasers) constitute the only information furnished by the Initial Purchasers
to the Company and the Guarantors for the purposes of Sections 3.1(a) and 7.1(a)
and (b) hereof.
SECTION 8.5. Communications. All notices, demands and other
communications provided for hereunder shall be in writing, and, (a) if to the
Initial Purchasers, shall be given by registered or certified mail, return
receipt requested, telex, telegram, telecopy, courier service or personal
delivery, addressed to CIBC Wood Gundy Securities Corp., 000 Xxxxxxxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxx, with a copy to
Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx Xxxxxxx, Esq., and (b) if to the Company, shall be given by similar means
to Xxxxxxxxx Holdings Pty. Ltd, The Lakes Business Park, Xxxx 0X, 00 Xxxx
Xxxxxx, Xxxxxx XXX 0000, Sydney, Australia, Attention: Xxxxxx Xxxxx, with a copy
to Pillsbury Madison & Sutro LLP, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxx, Esq.. In each case notices, demands
and other communications shall be deemed given when received.
SECTION 8.6. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same agreement.
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SECTION 8.7. Successors. This Agreement shall inure to the
benefit of and be binding upon the Initial Purchasers, the Company, the
Guarantors and their respective successors and legal representatives, and
nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other Person any legal or equitable right, remedy or claim
under or in respect of this Agreement, or any provisions herein contained; this
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of such Persons and for the benefit of
no other Person except that (i) the indemnities of the Company and the
Guarantors contained in Section 7.1(a) of this Agreement shall also be for the
benefit of the directors, officers, employees and agents of the Initial
Purchasers and any Person or Persons who control any of the Initial Purchasers
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Initial Purchasers contained in Section 7.1(b)
of this Agreement shall also be for the benefit of the directors of the Company
and the Guarantors, their respective officers, employees and agents and any
Person or Persons who control the Company or a Guarantor within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act. No purchaser of
Securities from the Initial Purchasers will be deemed a successor because of
such purchase.
SECTION 8.8. Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE
A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
SECTION 8.9. Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 8.10. Headings. The Article and Section headings and
Table of Contents used or contained in this Agreement are for convenience of
reference only and shall not affect the construction of this Agreement.
39
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IN WITNESS WHEREOF, the parties hereto have executed this
Securities Purchase Agreement as of the date first written above.
X.X. XXXXXXXXX NORTH AMERICA, INC.
(a Delaware corporation)
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
UPRIGHT, INC.
(a California corporation)
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
UPRIGHT FOREIGN SALES CORPORATION
(a United States Virgin Islands
corporation)
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
HORIZON HIGH REACH, INC.
(a Delaware corporation)
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
40
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CIBC WOOD GUNDY SECURITIES CORP.
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
BANCAMERICA SECURITIES, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Managing Director
41
SCHEDULE I
Principal Amount
Initial Purchaser of Notes
----------------- ----------------
CIBC Wood Gundy Securities Corp.............................. $73,500,000
BancAmerica Securities, Inc.................................. 31,500,000
------------
$105,000,000
============
