EXHIBIT 10.28
$515,000,000
XXXX CORPORATION
ZERO-COUPON CONVERTIBLE SENIOR NOTES DUE 2022
PURCHASE AGREEMENT
February 14, 2002
Credit Suisse First Boston Corporation,
As Representative of the Several Purchasers,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Xxxx Corporation, a Delaware corporation (the
"COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell the several initial purchasers named in Schedule A hereto (the
"PURCHASERS") U.S. $515,000,000 principal amount at maturity of its Zero-Coupon
Convertible Senior Notes due 2022 (the "FIRM SECURITIES") and also proposes to
grant to the Purchasers an option, exercisable from time to time by Credit
Suisse First Boston Corporation to purchase an aggregate of up to an additional
U.S. $125,000,000 principal amount at maturity ("OPTIONAL SECURITIES") of its
Zero-Coupon Convertible Senior Notes, each to be guaranteed on a joint and
several basis by the Guarantors listed on Schedule B hereto (each a "GUARANTOR"
and together, the "GUARANTORS") and each to be issued under an indenture, dated
as of February 20, 2002 (the "INDENTURE"), among the Company, the Guarantors and
The Bank of New York, as Trustee. The Firm Securities and the Optional
Securities which the Purchasers may elect to purchase pursuant to Section 3
hereof are herein collectively called the "OFFERED SECURITIES". The United
States Securities Act of 1933 is herein referred to as the "SECURITIES ACT."
The holders of the Offered Securities will be entitled to the benefits
of a Registration Rights Agreement of even date herewith among the Company, the
Guarantors and the Purchasers (the "REGISTRATION RIGHTS AGREEMENT"), pursuant to
which the Company and the Guarantors agree to file a registration statement with
the Securities Exchange Commission (the "COMMISSION") registering the resale of
the Offered Securities and the Underlying Shares, as hereinafter defined, under
the Securities Act.
The Company and the Guarantors each hereby agrees with the several
Purchasers as follows:
2. Representations and Warranties of the Company. The Company
and the Guarantors each represents and warrants to, and agrees with, the several
Purchasers that:
(a) An offering circular relating to the Offered
Securities to be offered by the Purchasers has been prepared by the
Company. Such offering circular (the "OFFERING CIRCULAR"), as
supplemented as of the date of this Agreement, together with the
documents incorporated by reference therein are hereinafter
collectively referred to as the "OFFERING DOCUMENT". On the date of
this Agreement, the Offering Document does not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Offering
Document based upon written information furnished to the Company by any
Purchaser through Credit Suisse First Boston Corporation ("CSFBC")
specifically for use therein, it being understood and agreed that the
only such information is that
described as such in Section 7(b) hereof. The Company's Annual Report
on Form 10-K most recently filed with the Commission and all subsequent
reports (collectively, the "EXCHANGE ACT REPORTS") which have been
filed by the Company with the Commission or sent to stockholders
pursuant to the Securities Exchange Act of 1934 (the "EXCHANGE ACT"),
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder.
(b) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware , with power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering
Document; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except to the extent that the failure to be so
qualified would not individually or in the aggregate have a material
adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole ("MATERIAL ADVERSE EFFECT").
(c) Each subsidiary of the Company, including, without
limitation, each of the Guarantors, has been duly incorporated and is
an existing corporation or other entity in good standing under the laws
of the jurisdiction of its formation, with power and authority
(corporate or other) to own its properties and conduct its business as
described in the Offering Document; and each subsidiary of the Company
is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification
except to the extent that the failure to be so qualified would not
individually or in the aggregate 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 otherwise 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 (other than liens and other encumbrances that
will be permitted under the terms of the Indenture).
(d) The Indenture has been duly authorized by the Company
and each Guarantor; the Offered Securities have been duly authorized;
and when the Offered Securities are delivered and paid for pursuant to
this Agreement on each Closing Date (as defined below), the Indenture
will have been duly executed and delivered by the Company and each
Guarantor, 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 and the Guarantees will
constitute valid and legally binding obligations of the Company and
each of the Guarantors, respectively, 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.
(e) When the Offered Securities are delivered and paid
for pursuant to this Agreement on each Closing Date, such Offered
Securities will be convertible into the shares ("UNDERLYING SHARES") of
common stock ("COMMON STOCK") of the Company in accordance with the
terms of the Indenture; the Underlying Shares initially issuable upon
conversion of such Offered Securities have been duly authorized and
reserved for issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and nonassessable; the
outstanding shares of common stock of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and
conform to the description thereof contained in the Offering Document;
and the stockholders of the Company have no preemptive rights with
respect to the Offered Securities or the Underlying Shares.
(f) 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
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Company or any Purchaser for a brokerage commission, finder's fee or
other like payment in connection with the offer and sale of the Offered
Securities.
(g) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
in connection with the transactions contemplated herein or in the
Indenture or the Registration Rights Agreement, except (i) such as will
be obtained or made under the Securities Act, United States Securities
Exchange Act of 1934 ("EXCHANGE ACT"), United States Trust Indenture
Act of 1939, as amended (the "TRUST INDENTURE ACT") and the rules of
The New York Stock Exchange, (ii) such as may be required under the
blue sky laws of any state or the laws of any foreign jurisdiction in
connection with the purchase and distribution of the Offered Securities
by the Purchasers in the manner contemplated herein and in the Offering
Document and the Registration Rights Agreement and (iii) such as may be
required by the National Association of Securities Dealers, Inc.
(h) The execution, delivery and performance by the
Company and each of the Guarantors of the Indenture, this Agreement and
the Registration Rights Agreement, the execution, delivery and
performance by the Company of the Offered Securities, the execution,
delivery and performance by the Guarantors of the Guarantees, the
compliance with the terms and provisions thereof and the issuance and
sale of the Offered Securities will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under,
any statute, any rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction over the
Company or any subsidiary of the Company or any of their material
properties, or any material agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the material properties
of the Company or any such subsidiary is subject, or the charter or
by-laws of the Company or any such subsidiary, and the Company has full
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 and each of the Guarantors. The Registration
Rights Agreement has been duly authorized, executed and delivered by
the Company and each of the Guarantors and constitutes a valid and
legally binding obligation of the Company and each of the Guarantors,
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 and except as rights to
indemnification and contribution may be limited under applicable law or
public policy considerations.
(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, with such exceptions as would not
reasonably be expected to have a Material Adverse Effect; and except as
disclosed in the Offering Document, the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable
leases with no exceptions that would have a Material Adverse Effect.
(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
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(l) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent
that could be reasonably expected to have a Material Adverse Effect.
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(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 the Company is not
aware of any pending investigation which might lead to such a claim.
(o) Except as disclosed in the Offering Document, there
are no pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective properties
that, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company or the Guarantors to perform their
obligations under the Indenture, this Agreement or the Registration
Rights 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, to the Company's knowledge,
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, except as otherwise disclosed in the Offering Document, such
financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis; Xxxxxx Xxxxxxxx LLP, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Securities Act and
the rules and regulations of the Commission thereunder.
(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 and its subsidiaries taken as a whole,
and, except as disclosed in or contemplated by the Offering Document,
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(r) The Company is subject to the reporting requirements
of either Section 13 or Section 15(d) of the Exchange Act.
(s) Neither the Company nor any of the Guarantors is 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 neither the Company nor any of the
Guarantors is nor, 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 be an "investment company" as
defined in the Investment Company Act.
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(t) 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.
(u) Assuming the accuracy of the representations and
warranties, and the performance of the covenants, of the Purchasers and
the Company in Section 4, 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 until such time as the Shelf Registration Statement
is filed with the Commission, it is not necessary to qualify an
indenture in respect of the Offered Securities under the Trust
Indenture Act.
(v) Neither the Company, nor any of its affiliates, nor
any person acting on its or their behalf (i) has, within the six-month
period prior to the date hereof, offered or sold in the United States
or to any U.S. person (as such terms are defined in Regulation S under
the Securities Act) the Offered Securities or any security of the same
class or series (as defined in Rule 144A under the Securities Act) 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 such
securities sold in reliance on Rule 903 of Regulation S ("REGULATION
S") under the Securities Act, by means of any directed selling efforts
within the meaning of Rule 902(c) of Regulation S. The Company, its
affiliates and any person acting on its or 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.
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, severally and not jointly, to
purchase from the Company, at a purchase price of $382.26 per $1,000 principal
amount at maturity thereof plus accreted original issue interest from February
20, 2002 to the First Closing Date (as hereinafter defined) of the Firm
Securities set forth opposite the names of the several Purchasers in Schedule A
hereto.
The Company will deliver against payment of the purchase price the Firm
Securities in the form of one or more permanent global Securities in definitive
form (the "FIRM 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 Firm Securities shall be
made by the Purchasers in Federal (same day) funds by wire transfer to an
account at a bank specified by the Company and acceptable to CSFBC to the order
of the Company at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx, New York, New York
at 9:00 A.M. (New York time), on February 20, 2002, 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 "FIRST CLOSING Date",
against delivery to the Trustee as custodian for DTC of the Firm Global
Securities representing all of the Firm Securities. The Firm Global Securities
will be made available for checking at the above office of Xxxxxxx Xxxxxxx &
Xxxxxxxx at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than 30 days subsequent to the date of this Agreement, the
Purchasers may purchase all or less than all of the Optional Securities at the
purchase price per principal amount at maturity of Offered Securities (including
any accreted original issue discount thereon to the related Optional Closing
Date) to be paid for the Firm Securities. The Company agrees to sell to the
Purchasers the principal amount at maturity of Optional Securities specified in
such notice and the Purchasers agree, severally and not jointly, to purchase
such Optional Securities. Such Optional Securities shall be purchased from the
Company for the account of each Purchaser in the same proportion as the
principal amount at maturity of Firm Securities set forth opposite such
Purchaser's name in Schedule A hereto bears to the total principal amount at
maturity of Firm Securities (subject to adjustment by CSFBC to eliminate
fractions). No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities
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or any portion thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time upon notice
by CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as the "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
on behalf of the several Purchasers but shall not be later than seven full
business days after written notice of election to purchase Optional Securities
is given.
The Company will deliver against payment of the purchase price the
Optional Securities being purchased on each Optional Closing Date in the form of
one or more permanent global Securities in definitive form (each, an "OPTIONAL
GLOBAL SECURITY") deposited with the Trustee as custodian for DTC and registered
in the name of Cede & Co., as nominee for DTC. Payment for such Optional
Securities shall be made by the Purchasers in Federal (same day) funds by wire
transfer to an account at a bank specified by the Company and acceptable to
CSFBC drawn to the order of the Company at the office of Xxxxxxx Xxxxxxx &
Xxxxxxxx, New York, New York, against delivery to the Trustee as custodian for
DTC of the Optional Global Securities representing all of the Optional
Securities being purchased on such Optional Closing Date.
4. Representations by Purchasers; Resale by Purchasers. 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.
(a) 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, only in accordance with
Rule 903 or Rule 144A under the Securities Act ("RULE 144A").
Accordingly, neither such Purchaser nor its affiliates, nor any persons
acting on its or their behalf, have engaged or will engage in any
directed selling efforts with respect to the Offered Securities, and
such Purchaser, its affiliates and all persons acting on its or their
behalf have complied and will comply with the offering restrictions
requirement of Regulation S and Rule 144A. Each Purchaser agrees that
hedging transactions involving the Offered Securities may not be
conducted unless in compliance with the Securities Act. Terms used in
this subsection (a) have the meanings given to them by Regulation S.
(b) 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 for any such arrangements with the other Purchasers or
affiliates of the other Purchasers or with the prior written consent of
the Company.
(c) Each Purchaser severally agrees that it and each of
its affiliates will not offer or sell the Offered Securities 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,
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 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.
(d) Each of the Purchasers severally represents and
agrees that (i) it has not offered or sold and prior to the date six
months after the date of issue of the Offered Securities will not offer
or sell any Offered Securities to persons in the United Kingdom except
to persons whose ordinary activities
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involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within
the meaning of the Public Offers of Securities Regulations 1995; (ii)
it has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to
engage in investment activity (within the meaning of section 21 of the
Financial Services and Markets Act 2000 (the "FSMA")) with received by
it in connection with the issue or sale of any notes in circumstances
in which section 21(1) of the FSMA does not apply to Xxxx and the
Guarantors; and (iii) it has complied and will comply with all
applicable provisions of the FSMA respect to anything done by it in
relation to the notes in, from or otherwise involving the United
Kingdom.
5. Certain Agreements of the Company and the Guarantors. The
Company and each of the Guarantors agree 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
consent will 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, the Company promptly will notify
CSFBC of such event (whereupon the Purchasers shall promptly cease
using the Offering Document) and promptly will prepare, at its own
expense, an amendment or supplement which will correct such statement
or omission. 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
requests, and the Company will furnish to CSFBC on the date hereof one
copy of the Offering Circular signed by a duly authorized officer of
the Company. At any time when the Company is not subject to Section 13
or 15(d) of the Exchange Act, the Company will promptly furnish or
cause to be furnished to CSFBC (and, upon request, to each of the other
Purchasers) and, upon request of holders and prospective purchasers of
the Offered Securities, to such holders and purchasers, copies of the
information required to be delivered to holders and prospective
purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under
the Securities Act (or any successor provision thereto) in order to
permit compliance with Rule 144A in connection with resales by such
holders of the Offered Securities. The Company will pay the expenses of
printing and distributing to the Purchasers all such documents.
(c) The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their eligibility
for investment under the laws of such jurisdictions in the United
States and Canada as CSFBC designates and will continue such
qualifications in effect so long as required for the resale of the
Offered Securities by the Purchasers, provided that the Company will
not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such state or subject
itself to taxation in any jurisdiction where it is not now so subject.
(d) During the period of two years after the later of the
First Closing Date and the last Optional Closing Date, the Company
will, upon request, furnish to CSFBC, each of the other Purchasers and
any holder of Offered Securities a copy of the restrictions on transfer
applicable to the Offered Securities.
(e) During the period of two years after the later of the
First Closing Date and the last Optional Closing Date, the Company will
not, and will not permit any of its affiliates (as defined in
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Rule 144 under the Securities Act) to, resell any of the Offered
Securities that have been reacquired by any of them.
(f) During the period of two years after the later of the
First Closing Date and the last Optional Closing Date, neither the
Company nor any Guarantor will 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.
(g) The Company and the Guarantors will pay all expenses
incidental to the performance of its obligations under this Agreement,
the Indenture and the Registration Rights Agreement including (i) the
fees and expenses of the Trustee and its professional advisers; (ii)
all expenses in connection with the execution, issue, authentication,
packaging and initial delivery of the Offered Securities and, as
applicable, the Underlying Shares, the preparation and printing of this
Agreement, the Registration Rights Agreement, the Indenture, the
Offered Securities, the Offering Document and amendments and
supplements thereto, and any other document relating to the issuance,
offer, sale and delivery of the Offered Securities and as applicable,
the Exchange Securities; (iii) the cost of qualifying the Offered
Securities for trading in The Portal(SM) Market ("PORTAL") and any
expenses incidental thereto; (iv) for 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 in
the United States and Canada as CSFBC designates and the printing of
memoranda relating thereto, (v) for any fees charged by investment
rating agencies for the rating of the Offered Securities, (vi) for all
fees and expenses incurred in relation to the listing of the Underlying
Shares on the New York Stock Exchange, (vii) for the fees and expenses
of their legal counsel and accountants and (viii) for 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
expenses of the Purchasers and the Company in connection with
preparation and distribution of an Internet road show presentation.
(h) In connection with the offering, until CSFBC shall
have notified the Company and the other Purchasers of the completion of
the resale of the Offered Securities, neither the Company nor any of
its affiliates has or will, either alone or with one or more other
persons, bid for or purchase for any account in which it or any of its
affiliates has a beneficial interest any Offered Securities or attempt
to induce any person to purchase any Offered Securities; and neither it
nor any of its affiliates will make bids or purchases for the purpose
of creating actual, or apparent, active trading in, or of raising the
price of, the Offered Securities.
(i) For a period of 60 days after the date hereof, 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, any
shares of Common Stock of the Company or securities convertible into or
exchangeable or exercisable for shares of Common Stock of the Company
or warrants or other rights to purchase shares of Common Stock of the
Company, or publicly disclose the intention to make any such offer,
sale, pledge or disposition, without the prior written consent of
CSFBC, except (i) grants of employee stock options pursuant to the
terms of a plan in effect on the date hereof, (ii) issuances of Offered
Securities or Common Stock pursuant to the exercise of such options or
the exercise of any other employee stock options outstanding on the
date hereof, (iii) issuances of Common Stock pursuant to the Company's
dividend reinvestment plan, (iv) issuances of Common Stock (including
restricted Common Stock) or stock options in relation to the Company's
compensation or benefits plans in effect on the date hereof, and (v)
incurrence of indebtedness pursuant to the Company's Primary Credit
Facilities (as defined in the Offering Document). 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.
8
6. Conditions of the Obligations of the Purchasers. The
obligations of the several purchasers to purchase and pay for the Offered Firm
Securities on the First Closing Date and for the Optional Securities on each
Optional Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of officers of the Company made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Purchasers shall have received a letter, dated
the date of this Agreement, of Xxxxxx Xxxxxxxx LLP in agreed form
confirming that they are independent public accountants within the
meaning of the Securities Act and the applicable published rules and
regulations thereunder ("RULES AND REGULATIONS") and to the effect
that:
(i) in their opinion the financial statements
examined by them and incorporated by reference in the Offering
Document and in the Exchange Act Reports comply as to form in
all material respects with the applicable accounting
requirements of the Securities Act and the related published
Rules and Regulations;
(ii) they have performed the procedures specified
by the American Institute of Certified Public Accountants for
a review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial information
incorporated by reference in the Offering Document and in the
Exchange Act Reports;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial information of the Company, inquiries of officials
of the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial information and
summary of earnings incorporated by reference in
Offering Document or in the Exchange Act Reports do
not comply as to form in all material respects with
the applicable accounting requirements of the
Securities Act and the related published Rules and
Regulations or any material modifications should be
made to unaudited financial statements for them to be
in conformity with generally accepted accounting
principles;
(B) the unaudited consolidated net sales,
net income and income before extraordinary items and
net income per share amounts for the 9-month periods
ended September 29, 2001 and September 30, 2000
incorporated by reference in the Offering Document do
not agree with the amounts set forth in the unaudited
consolidated financial information for those same
periods or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited statements of
income;
(C) 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 any
increase in long-term debt of the Company and its
consolidated subsidiaries or, at the date of the
latest available balance sheet read by such
accountants, there was any decrease in consolidated
net current assets or net assets, as compared with
amounts shown on the latest balance sheet included or
incorporated by reference in the Offering Document or
the Exchange Act Reports; or
(D) for the period from the closing date of
the latest income statement incorporated by reference
in the Offering Document or the Exchange Act Reports
to the closing date of the latest available income
statement read by such
9
accountants there were any material decreases, as
compared with the corresponding period of the
previous year, in consolidated net sales, total or
per share amounts of consolidated income before
extraordinary items and net income;
except in all cases set forth in clauses (B), (C) and (D)
above for changes, increases or decreases which the Offering
Document and Exchange Act Reports disclose have occurred or
may occur or 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 and the Exchange Act Reports
(in each case to the extent that such dollar amounts,
percentages and other financial information are
derived from the general accounting records of the
Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are
derived directly from such records by analysis or
computation) with the results obtained from
inquiries, a reading of such general accounting
records and other procedures specified in such letter
and have found such dollar amounts, percentages and
other financial information to be in agreement with
such results, except as otherwise specified in such
letter.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) 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 and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Purchasers, including CSFBC,
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; (ii) 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) or any announcement that the Company has been placed on
negative outlook; (iii) any change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the judgment of a majority in interest of the
Purchasers including 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, (iv) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (v) any banking
moratorium declared by U.S. Federal or, New York authorities; (vi) any
major disruption of settlements of securities or clearance services in
the United States or (vii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of
the Purchasers including CSFBC, the effect of any such attack,
outbreak, escalation, act, 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.
(c) The Purchasers shall have received an opinion, dated such
Closing Date, of Winston & Xxxxxx, counsel for the Company, that
(subject to customary qualifications and exceptions):
(i) The Company and each of the Guarantors
organized in Delaware (the "DELAWARE GUARANTORS") is a
business entity duly incorporated or formed, as applicable,
validly existing and in good standing under the laws of the
State of Delaware and is duly qualified to do business and in
good standing as a foreign corporation, foreign limited
liability company or foreign limited partnership, as
applicable, in each other jurisdiction in
10
which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure
to be so qualified and in good standing would not have a
material adverse effect on the Company and its subsidiaries
taken as a whole; the Company and each of the Delaware
Guarantors has all corporate, limited liability company or
partnership power, as applicable, and authority necessary to
own or hold its properties and to conduct the business in
which it is engaged as described in the Offering Circular;
(ii) The Purchase Agreement has been duly
authorized by all necessary corporate, limited liability
company or partnership action, as applicable, executed and
delivered by the Company and each of the Delaware Guarantors;
(iii) The Registration Rights Agreement has been
duly authorized by all necessary corporate, limited liability
company or partnership action, as applicable, executed and
delivered by the Company and each of the Delaware Guarantors
and constitutes a legal, valid and binding agreement,
enforceable against the Company and each of the Delaware
Guarantors in accordance with its terms;
(iv) The Indenture has been duly authorized by
all necessary corporate, limited liability company or
partnership action, as applicable, executed and delivered by
the Company and each of the Delaware Guarantors and
constitutes a legal, valid and binding agreement, enforceable
against the Company and each of the Delaware Guarantors in
accordance with its terms;
(v) The Offered Securities have been duly
authorized by all necessary corporate action and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of the Purchase
Agreement, will be valid and legally binding obligations of
the Company, enforceable against the Company in accordance
with their terms;
(vi) The Underlying Shares initially issuable
upon the conversion of the Offered Securities in accordance
with the terms of the Indenture have been duly authorized by
all necessary corporate action and reserved for issuance upon
such conversion and, when issued upon conversion of the
Offered Securities in accordance with the terms of the
Indenture and the Offered Securities, will be validly issued,
fully paid and non-assessable and, to such counsel's
knowledge, stockholders of the Company have no preemptive
rights with respect to the Offered Securities or the
Underlying Shares;
(vii) The Guarantees have been duly authorized by
all necessary corporate, limited liability company or
partnership action, as applicable, by each of the Delaware
Guarantors and, when the Offered Securities are authenticated
in accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchasers in
accordance with the terms of the Purchase Agreement, will be
valid and legally binding obligations of the Delaware
Guarantors, enforceable against the Delaware Guarantors in
accordance with their terms;
(viii) The statements made in the Offering Circular
under the captions "Description of Other Material
Indebtedness," "Description of the Notes" and "Description of
Capital Stock," insofar as such statements purport to
constitute summaries of the legal matters or the terms of
certain documents referred to therein, fairly present the
information with respect to such legal matters and terms of
such documents and fairly summarize the matters referred to
therein in all material respects;
(ix) The statements made in the Offering Circular
under the caption "Certain United States Federal Income Tax
Considerations," insofar as such statements purport to
11
constitute a summary of the United States federal tax laws
referred to therein, are accurate and present a fair summary
of the material United States federal tax laws referred to
therein;
(x) Neither the Company nor any of the
Guarantors is and, immediately after giving effect to the
offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Offering Circular, will be an "investment company" as such
term is defined in the Investment Company Act of 1940, as
amended;
(xi) Assuming the accuracy of the representations
and warranties, and the performance of the covenants, of the
Company and the Purchasers contained in this Agreement, no
registration under the Securities Act of the Offered
Securities is required in connection with the sale of the
Offered Securities to the Initial Purchasers as contemplated
by the Purchase Agreement and the Offering Circular or in
connection with the initial resale of the Offered Securities
by the Initial Purchasers in the manner contemplated by the
Purchase Agreement and the Offering Circular, and, prior to
the effectiveness of the Shelf Registration Statement (as
defined in the Registration Rights Agreement), and the
Indenture is not required to be qualified under the Trust
Indenture Act.
In addition, such counsel shall state that they have
participated in conferences with officers and other representatives of
the Company, representatives of the independent public or certified
public accountants for the Company and with representatives of CSFBC at
which the contents of the Offering Document and related matters were
discussed and, although they are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Offering Document (except as set forth in
paragraphs (viii) and (ix) above), on the basis of the foregoing,
nothing has come to their attention which caused them to believe that
the Offering Document (including the Exchange Act Reports incorporated
by reference therein) as of its date and at such Closing Date,
contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such counsel will
express no belief as to the financial statements or other financial
data included or incorporated by reference in or omitted from the
Offering Document).
(d) The Purchasers shall have received an opinion, dated
such Closing Date, of Xxxxxx XxXxxxxx, general counsel of the Company,
that (subject to customary qualifications and exceptions):
(i) Xxxx Corporation Automotive Systems (the
"OHIO GUARANTOR") is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Ohio and is duly qualified to do business and in good standing
as a foreign corporation in each other jurisdiction in which
its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure
to be so qualified and in good standing would not have a
material adverse effect on the Company and its subsidiaries
taken as a whole; the Ohio Guarantor has all corporate power
and authority necessary to own or hold its properties and to
conduct the business in which it is engaged as described in
the Offering Circular;
(ii) The Purchase Agreement has been duly
authorized, executed and delivered by the Ohio Guarantor;
(iii) The Registration Rights Agreement has been
duly authorized, executed and delivered by the Ohio Guarantor
and constitutes a legal, valid and binding agreement,
enforceable against the Ohio Guarantor in accordance with its
terms;
(iv) The Indenture has been duly authorized,
executed and delivered the Ohio Guarantor and constitutes a
legal, valid and binding agreement, enforceable against the
Ohio Guarantor in accordance with its terms;
12
(v) All of the issued and outstanding capital
stock of each of the Guarantors organized in the United States
(the "U.S. GUARANTORS") has been duly authorized and validly
issued and is fully paid and nonassessable; except as
otherwise disclosed in the Offering Circular, the capital
stock of each of the U.S. Guarantors is owned, directly or
through subsidiaries, by the Company, free and clear of all
liens, encumbrances and defects, except for those liens and
encumbrances permitted under the terms of the Indenture;
(vi) The execution, delivery and performance of
the Company and each of the U.S. Guarantors of its obligations
under the Purchase Agreement, the Registration Rights
Agreement, the Indenture, the Offered Securities (in the case
of the Company) and the Guarantees (in the case of each of the
U.S. Guarantors) and the issuance and sale of the Offered
Securities and Underlying Shares and compliance with the terms
and provisions thereof, will not (a) to the best of such
counsel's knowledge, violate or result in a breach in any
material respect of any of the terms or provisions of any
agreement or other instrument to which the Company or any of
its subsidiaries is a party that is material to the Company
and its subsidiaries, taken as a whole, (b) violate or result
in a breach of any term of the Certificate of Incorporation,
Certificate of Formation or Certificate of Limited
Partnership, as applicable, of the Company or any of the U.S.
Guarantors, each as currently in effect, (c) violate the
By-laws of the Company or any of the U.S. Guarantors that is a
corporation, each as currently in effect, the Operating
Agreement of Xxxx Technologies, as currently in effect, the
Limited Partnership Agreement of Xxxx Midwest, as currently in
effect or (d) violate or contravene any applicable law or, to
the best of such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Company or any of the U.S. Guarantors;
(vii) The Company has full power and authority to
authorize, issue and sell the Offered Securities and
Underlying Shares as contemplated by this Agreement
(viii) No consent, approval, authorization or order
of, or filing with, any governmental body or agency or any
court is required for the performance by the Company under the
Purchase Agreement and the Registration Rights Agreement in
connection with the issuance or sale of the Offered Securities
(except such filings, consents, authorizations, permits,
orders and other matters which may be required under (a) the
Exchange Act and applicable "blue sky" or state securities
laws or the laws of any country other than the United States
in connection with the offer and sale of the Offered
Securities, (b) Federal and state securities laws with respect
to the obligations of the Company under the Registration
Rights Agreement, or (c) the rules and regulations of the
National Association of Securities Dealers, Inc., as to which
no opinion need be expressed).
(ix) There is no legal or governmental proceeding
pending or, to the best knowledge of such counsel, after due
inquiry, threatened to which the Company or any of its
subsidiaries is a party, or to which any of their respective
properties are subject, other than proceedings which such
counsel believes would not reasonably be expected to have a
material adverse effect upon the Company and its subsidiaries,
taken as a whole; and
(x) The Guarantee of the Ohio Guarantor has been
duly authorized by all necessary corporation action by the
Ohio Guarantor and, when the Offered Securities are
authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Purchasers in
accordance with the terms of the Purchase Agreement, the
Guarantee will be a valid and legally binding obligation of
the Ohio Guarantor, enforceable against the Ohio Guarantor in
accordance with its terms.
(e) The Purchasers shall have received an
opinion, dated such Closing Date, of Xxxxx & XxXxxxxx, S.C., counsel
for Xxxx Corporation Mexico S.A. de C.V., and of Garrigues & Xxxxxxxx,
13
counsel for Xxxx Automotive (XXXX) Spain S.L., that (subject to
customary qualifications and exceptions):
(i) The relevant Guarantor has been duly
incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its
properties and conduct its business as presently conducted;
(ii) This Agreement, the Indenture and the
Registration Rights Agreement have been duly authorized,
executed and delivered by the relevant Guarantor; the
Guarantees delivered on such Closing Date have been duly
authorized, executed, authenticated, issued and delivered; and
the Indenture, the Registration Rights Agreement, and the
Guarantees delivered on such Closing Date constitute valid and
legally binding obligations of such Guarantor 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;
(iii) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any
court is required for the consummation of the transactions
contemplated by this Agreement and the Registration Rights
Agreement in connection with the issuance and sale of the
Offered Securities by the Company and the issuance of the
Guarantees by the relevant Guarantor, except such as may be
required under state securities laws except for the order of
the Commission declaring the Shelf Registration Statement
effective; and
(iv) The execution, delivery and performance of
the Indenture, this Agreement and the Registration Rights
Agreement by the relevant Guarantor, and the issuance and sale
of the Offered Securities and Underlying Shares 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, any statute, any rule, regulation
or order of any governmental agency or body or any court
having jurisdiction over such Guarantor or any of its
subsidiaries or any of its properties, or any agreement or
instrument to which such Guarantor or any such of its
subsidiaries is a party or by which such Guarantor or any of
its subsidiaries is bound or to which any of the properties of
the Company or any such subsidiary is subject, or the charter
or by-laws of such Guarantor or any of its subsidiaries, and
such Guarantor has full power and authority to authorize,
issue and sell the Guarantees as contemplated by this
Agreement.
(f) The Purchasers shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Purchasers, such opinion or
opinions, dated such Closing Date, with respect to the incorporation of
the Company, the validity of the Offered Securities, the Offering
Circular, the exemption from registration for the offer and sale of the
Offered Securities by the Company to the several Purchasers and the
resales by the several 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.
(g) The Purchasers shall have received a certificate,
dated such 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 Closing
Date, and that, subsequent to the respective dates of the most recent
financial statements in the Offering Document (including the Exchange
Act Reports incorporated by reference therein) there has been no
material adverse change, nor any development or
14
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth
in or contemplated by the Offering Document or as described in such
certificate.
(f) The Purchasers shall have received a letter, dated such
Closing Date, of Xxxxxx Xxxxxxxx LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred
to in such subsection will be a date not more than three days prior to
such Closing Date for the purposes of this subsection.
(g) The Underlying Shares shall have been accepted for listing
on the New York Stock Exchange, subject to notice of issuance.
(h) On or prior to the Closing Date, the Purchasers shall have
received lockup letters in agreed form from each of the executive
officers and directors of the Company.
(i) The Purchasers and their counsel shall have received such
other documents and certifications as they may reasonably request.
Documents described as being "in the agreed form" are
documents which are in the forms which have been initialed for the
purpose of identification by Xxxxxxx Xxxxxxx & Xxxxxxxx, copies of
which are held by the Company and CSFBC, with such changes as CSFBC may
approve.
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
on behalf of the Purchasers compliance with any conditions to the
obligations of the Purchasers hereunder, whether in respect of an
Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) Each of the Company and
the Guarantors jointly and severally will indemnify and hold harmless each
Purchaser, its partners, directors and officers and each person, if any, who
controls such Purchaser within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
such Purchaser may become subject, under the Securities Act or the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Offering
Document, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, including any losses, claims, damages or
liabilities arising out of or based upon the Company's failure to perform its
obligations under Section 5(a) of this Agreement, and will reimburse each
Purchaser for any legal or other expenses reasonably incurred by such Purchaser
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
neither the Company nor the Guarantors will 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 any Purchaser through CSFBC
specifically for use therein, it being understood and agreed that the only such
information consists of the information described as such in subsection (b)
below.
(b) The Purchasers will severally and not jointly indemnify
and hold harmless the Company and the Guarantors, their directors and officers
and each person, if any, who controls the Company or the Guarantors within the
meaning of Section 15 of the Securities Act, against any losses, claims, damages
or liabilities to which the Company or any Guarantor 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
15
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Purchaser through CSFBC specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Purchaser consists of
(i) the following information in the Offering Document: the third paragraph
under the caption "Plan of Distribution"; provided, however, that the Purchasers
shall not be liable for any losses, claims, damages or liabilities arising out
of or based upon the Company's failure to perform its obligations under Section
5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. 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 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 (i)
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to or an admission of fault, culpability or failure to act by or on
behalf of any indemnified party.
(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 and the Guarantors 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 and the Guarantors 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 and the Guarantors 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. 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 and the Guarantors 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), no Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered Securities
purchased by it were resold exceeds the amount of any damages which such
Purchaser has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The Purchasers' obligations in
this subsection (d) to contribute are several in proportion to their respective
purchase obligations and not joint.
16
(e) The obligations of the Company and the Guarantors under this
Section shall be in addition to any liability which the Company and the
Guarantors may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Purchaser 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
respective Purchasers may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls the Company and each
Guarantor 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 Offered Securities hereunder on either the First
Closing Date or any Optional Closing Date and the aggregate principal amount at
maturity of Offered Securities that such defaulting Purchaser or Purchasers
agreed but failed to purchase does not exceed 10% of the total principal amount
Offered Securities that the Purchasers are obligated to purchase on such Closing
Date, CSFBC may make arrangements satisfactory to the Company for the purchase
of such Offered Securities by other persons, including any of the Purchasers,
but if no such arrangements are made by such 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 on such Closing Date. If any Purchaser
or Purchasers so default and the aggregate principal amount at maturity of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total principal amount of Offered Securities that the Purchasers are
obligated to purchase on such Closing Date 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 (provided that if such default occurs
with respect to Optional Securities after the First Closing Date, this Agreement
shall not terminate as to the Firm Securities or any Optional Securities
purchased prior to such termination). 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 and the Guarantors or their 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, the Guarantors 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 and the Guarantors shall remain responsible for the expenses to be paid
or reimbursed by it pursuant to Section 5 and the respective obligations of the
Company, the Guarantors and the Purchasers pursuant to Section 7 shall remain in
effect and if any Offered Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect. If the purchase of the Offered Securities by the
Purchasers is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (iii), (iv), (v), (vi) or (vii) of Section 6(b), the
Company and the Guarantors will reimburse the Purchasers for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Offered Securities.
17
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to
the Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory Group, with
a copy, which shall not constitute notice of the Purchasers, to Xxxxxxx Xxxxxxx
& Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 Attention: Xxxx X. Xxxxxxx,
or, if sent to the Company or the Guarantors, will be mailed, delivered or
telegraphed and confirmed to it at Xxxx Corporation, 00000 Xxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000, Attention: Xxxxx Xxxxxxxx, with a copy, which shall not
constitute notice to the Company or the Guarantors, to Winston & Xxxxxx, 000
Xxxx Xxxxxx, Xxx Xxxx, XX 00000 Attention: Xxxxxx Xxxxxxxxx; provided, however,
that any notice to a Purchaser pursuant to Section 7 will be mailed, delivered
or telegraphed and confirmed to such Purchaser.
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 thereto.
12. Representation of Purchasers. You will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by you will be binding upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS. The Company and each of the Guarantors hereby
submits to the non-exclusive jurisdiction of the Federal and state courts in the
Borough of Manhattan in The City of New York in any suit or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby.
18
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 among the Company, the Guarantors
and the several Purchasers in accordance with its terms.
Very truly yours,
XXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
....................................
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and Chief Financial
Officer
XXXX OPERATIONS CORPORATION
By: /s/ Xxxxxx X. XxXxxxxx
....................................
Name: Xxxxxx X. XxXxxxxx
Title: Vice President, Secretary and General Counsel
XXXX CORPORATION AUTOMOTIVE HOLDINGS
By: /s/ Xxxxxx X. XxXxxxxx
....................................
Name: Xxxxxx X. XxXxxxxx
Title: Vice President and Secretary
XXXX SEATING HOLDINGS CORP. #50
By: /s/ Xxxxxx X. XxXxxxxx
....................................
Name: Xxxxxx X. XxXxxxxx
Title: Secretary and General Counsel
XXXX CORPORATION XXXX AND INTERIORS
By: /s/ Xxxxxx X. XxXxxxxx
....................................
Name: Xxxxxx X. XxXxxxxx
Title: Vice President and Secretary
XXXX CORPORATION AUTOMOTIVE SYSTEMS
By: /s/ Xxxxxx X. XxXxxxxx
....................................
Name: Xxxxxx X. XxXxxxxx
Title: Vice President and Secretary
19
LEAR TECHNOLOGIES, LLC
By: /s/ Xxxxx X. Xxxxxxxx
....................................
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and Chief Financial
Officer - Xxxx Corporation
LEAR MIDWEST AUTOMOTIVE, LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. XxXxxxxx
....................................
Name: Xxxxxx X. XxXxxxxx
Title: Vice President, Secretary and General Counsel
LEAR AUTOMOTIVE (XXXX) SPAIN S.L.
By: /s/ Xxxxxx X. XxXxxxxx
....................................
Name: Xxxxxx X. XxXxxxxx
Title: Power of Attorney
XXXX CORPORATION MEXICO, S.A. DE C.V.
By: /s/ Xxxxxx X. XxXxxxxx
....................................
Name: Xxxxxx X. XxXxxxxx
Title: Power of Attorney
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/
---------------------------------
Title
Acting on behalf of itself
and as the Representative
of the several Purchasers
20
SCHEDULE A
PRINCIPAL AMOUNT AT
MATURITY OF
MANAGER FIRM SECURITIES
------- ------------------
Credit Suisse First Boston Corporation................. $412,000,000
X.X. Xxxxxx Securities Inc............................. 51,500,000
Xxxxxx Brothers Inc.................................... 51,500,000
------------
Total........................ $515,000,000
============
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SCHEDULE B
Guarantors
Name Jurisdiction of Organization
---- ----------------------------
Xxxx Operations Corporation Delaware
Xxxx Corporation Automotive Holdings Delaware
Xxxx Seating Holdings Corp. #50 Delaware
Xxxx Corporation XXXX and Interiors Delaware
Xxxx Corporation Automotive Systems Ohio
Lear Technologies, LLC Delaware
Lear Midwest Automotive, Limited Partnership Delaware
Xxxx Automotive (XXXX) Spain S.L. Spain
Xxxx Corporation Mexico, S.A. de C.V. Mexico
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