Exhibit 4.1
Therma-Wave, Inc.
$115,000,000
10.625% Senior Notes due 2004
PURCHASE AGREEMENT
------------------
May 16, 1997
BT SECURITIES CORPORATION
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Therma-Wave, Inc., a Delaware corporation (the "Company"), hereby
-------
confirms its agreement with you (the "Initial Purchaser"), as set forth below.
-----------------
1. The Securities. Subject to the terms and conditions herein
--------------
contained, the Company proposes to issue and sell to the Initial Purchaser
$115,000,000 aggregate principal amount of its 10.625% Senior Notes due 2004
(the "Notes"). The Notes are to be issued under an indenture (the "Indenture")
----- ---------
to be dated as of May 15, 1997 between the Company and IBJ Xxxxxxxx Bank & Trust
Company, as trustee (the "Trustee").
-------
The Notes are being issued and sold in connection with the
recapitalization of the Company (the "Recapitalization") pursuant to a
----------------
Recapitalization Agreement dated December 18, 1996 as amended by Amendment No.
1, dated May 16, 1997 (the "Recapitalization Agreement"), by and among Xxxx
--------------------------
Capital Fund V, L.P., Xxxx Capital Fund V-B, L.P., BCIP Associates, BCIP Trust
Associates, L.P. and designees, if any (collectively, the "Purchasers"), and
Toray Industries, Inc. and Toray Industries (America) Inc. (collectively,
"Toray"), and Shimadzu Corporation ("Shimadzu") and the Company.
The Recapitalization will be financed by: (i) the proceeds from the
issuance of the Notes, (ii) consideration paid by the Purchasers to the Company
in the amount of $20.0 million and (iii) the retention by Toray and Shimadzu of
$15.0 million in equity securities of the Company. The Company will also enter
into a senior secured bank financing pursuant to a
-2-
credit agreement (the "Credit Agreement") among the Company, Bankers Trust
----------------
Company, as agent, and certain financial institutions party thereto in the form
of a revolving credit facility for working capital and other corporate purposes
in the amount of $30 million.
The Notes will be offered and sold to the Initial Purchaser without
being registered under the Securities Act of 1933, as amended (the "Act"), in
---
reliance on one or more exemptions therefrom.
In connection with the sale of the Notes, the Company has prepared a
preliminary offering memorandum dated April 22, 1997 (the "Preliminary
-----------
Memorandum") and a final offering memorandum dated May 13, 1997 (the "Final
---------- -----
Memorandum"; the Preliminary Memorandum and the Final Memorandum each herein
----------
being referred to as a "Memorandum"), each setting forth or including a
----------
description of the terms of the Notes and the offering, a description of the
Recapitalization of the transactions contemplated thereby and hereby, a
description of the Company and any material developments relating to the Company
occurring after the date of the most recent historical financial statements
included therein.
The Initial Purchaser and its direct and indirect transferees of the
Notes will be entitled to the benefits of the Registration Rights Agreement,
substantially in the form attached hereto as Exhibit A (the "Registration Rights
--------- -------------------
Agreement"), pursuant to which the Company has agreed, among other things, to
---------
file a registration statement (the "Registration Statement") with the Securities
----------------------
and Exchange Commission (the "Commission") registering the Exchange Notes (as
----------
defined therein) or, in certain cases, the Notes under the Act.
2. Representations and Warranties. The Company represents and
------------------------------
warrants to and agrees with the Initial Purchaser that:
(a) Neither the Preliminary Memorandum as of the date thereof nor the
Final Memorandum nor any amendment or supplement thereto as of the date thereof
and at all times subsequent thereto up to the Closing Date (as defined in
Section 3 below) contained or contains any untrue statement of a material fact
or omitted or omits 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 2(a) do not apply to statements or omissions made in reliance upon
-3-
and in conformity with information relating to the Initial Purchaser, furnished
to the Company in writing by the Initial Purchaser, expressly for use in the
Preliminary Memorandum, the Final Memorandum or any amendment or supplement
thereto.
(b) As of the Closing Date, the Company will have the capitalization
set forth in the Final Memorandum; all of the subsidiaries of the Company are
listed on Schedule 2 attached hereto (each, a "Subsidiary" and collectively, the
---------- ----------
"Subsidiaries"); all of the outstanding shares of capital stock of the Company
------------
and the Subsidiaries have been, and as of the Closing Date will be, duly
authorized and validly issued, are fully paid and nonassessable and were not
issued in violation of any preemptive or similar rights; except as set forth in
the Final Memorandum, all of the outstanding shares of capital stock of the
Company and of each of the Subsidiaries will be free and clear of all liens,
encumbrances, equities and claims or restrictions on transferability (other than
those imposed by the Act and the securities or "Blue Sky" laws of certain
jurisdictions) or voting; except as set forth in the Final Memorandum, there are
no (i) options, warrants or other rights to purchase from the Company, (ii)
agreements or other obligations to issue or (iii) other rights to convert any
obligation into, or exchange any securities for, shares of capital stock of or
ownership interests in the Company or any of the Subsidiaries outstanding.
Except for the Subsidiaries or as disclosed in the Final Memorandum, the Company
does not own, directly or indirectly, any material amount of capital stock or
any other equity or long-term debt securities or have any equity interest in any
firm, partnership, joint venture or other entity.
(c) Each of the Company and the Subsidiaries has been duly
incorporated, is validly existing and is in good standing as a corporation under
the laws of its jurisdiction of incorporation, with all requisite corporate
power and authority to own its properties and conduct its business as now
conducted, and as described in the Final Memorandum; each of the Company and the
Subsidiaries is, and upon consummation of the Recapitalization will be, duly
qualified to do business as a foreign corporation in good standing in all other
jurisdictions where the ownership or leasing of its properties or the conduct of
its business requires such qualification, except where the failure to be so
qualified would not reasonably be expected, individually or in the aggregate, to
have a material adverse effect on the general affairs, management, business,
condition (financial or otherwise), prospects or results of operations of the
Company and the Subsidiaries, taken as a whole (any such event, a "Material
--------
Adverse Effect").
--------------
-4-
(d) The Company has all requisite corporate power and authority to
execute, deliver and perform each of its obligations under the Notes, the
Exchange Notes and the Private Exchange Notes (as defined in the Registration
Rights Agreement). On the Closing Date, the Notes, the Exchange Notes and the
Private Exchange Notes will each be 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, when
delivered to and paid for by the Initial Purchaser in accordance with the terms
of this Agreement, will have been duly executed, issued and delivered and will
constitute valid and legally binding obligations of the Company, entitled to the
benefits of the Indenture and enforceable against the Company in accordance with
their terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, 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.
(e) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Indenture. The Indenture
meets the requirements for qualification under the Trust Indenture Act of 1939,
as amended (the "TIA"). On the Closing Date, the Indenture will be duly and
---
validly authorized by the Company and, when executed and delivered by the
Company (assuming the due authorization, execution and delivery by the Trustee),
will constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, 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.
(f) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Registration Rights
Agreement. On the Closing Date, the Registration Rights Agreement will be duly
and validly authorized by the Company and, when executed and delivered by the
Company, will constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except that (A)
the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general princi-
-5-
ples of equity and the discretion of the court before which any proceeding
therefor may be brought and (B) any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and public policy
considerations.
(g) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly authorized, executed and delivered by the Company.
(h) The Company has delivered to the Initial Purchaser a true,
correct and complete executed copy of the Recapitalization Agreement, together
with any amendments thereto. The Company has all requisite corporate power and
authority to enter into the Recapitalization Agreement and the Company has all
requisite corporate power and authority to consummate the transactions
contemplated thereby. The Recapitalization Agreement has been duly authorized,
executed and delivered by the Company.
(i) No consent, approval, authorization or order of any court or
governmental agency or body or third party is required for the performance of
this Agreement by the Company or the consummation by the Company of the
transactions contemplated hereby except such as have been obtained and such as
may be required under state securities or "Blue Sky" laws in connection with the
purchase and resale of the Notes by the Initial Purchaser. None of the Company
or the Subsidiaries is, or upon consummation of the Recapitalization will be,
(i) in violation of its certificate of incorporation or bylaws (or similar
organizational document), (ii) in breach or violation of any statute, judgment,
decree, order, rule or regulation applicable to any of them or any of their
respective properties or assets, except for any such breach or violation which
would not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect, or (iii) in breach of or default under (nor has any
event occurred which, with notice or passage of time or both, would constitute a
default under) or in violation of any of the terms or provisions of any
indenture, mortgage, deed of trust, loan agreement, note, lease, license,
franchise agreement, permit, certificate, contract or other agreement or
instrument to which any of them is a party or to which any of them or their
respective properties or assets is subject (collectively, "Contracts"), except
---------
for any such breach, default, violation or event which would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
-6-
(j) The execution, delivery and performance by the Company of this
Agreement, the Indenture, the Registration Rights Agreement and the
Recapitalization Agreement and the consummation by the Company of the
transactions contemplated hereby and thereby, and the fulfillment of the terms
hereof and thereof, will not conflict with or constitute or result in a breach
of or a default under (or an event which with notice or passage of time or both
would constitute a default under) or violation of any of (i) the terms or
provisions of any Contract, except for any such conflict, breach, violation,
default or event which would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect, (ii) the certificate of
incorporation or bylaws (or similar organizational document) of the Company or
any of the Subsidiaries, or (iii) (assuming compliance with all applicable state
securities or "Blue Sky" laws and assuming the accuracy of the representations
and warranties of the Initial Purchaser in Section 8 hereof) any statute,
judgment, decree, order, rule or regulation applicable to the Company or any of
the Subsidiaries or any of their respective properties or assets, except for any
such conflict, breach or violation which would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(k) The audited consolidated financial statements of the Company
included in the Final Memorandum present fairly in all material respects the
financial position, results of operations and cash flows of the Company 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, except as otherwise stated therein. The summary and selected financial
and statistical data in the Final Memorandum present fairly in all material
respects the information shown therein and the summary and selected financial
data have been prepared and compiled on a basis consistent with the audited
financial statements included therein, except as otherwise stated therein. To
the best of the Company's knowledge, Ernst & Young LLP (the "Independent
-----------
Accountants") is an independent public accounting firm within the meaning of the
-----------
Act and the rules and regulations promulgated thereunder.
(l) The pro forma financial statements (including the notes thereto)
and the other pro forma financial information included in the Final Memorandum
(i) comply as to form in all material respects with the applicable requirements
of Regulation S-X promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), (ii) have been prepared in accordance with the
------------
Commission's published rules and guide-
-7-
lines with respect to pro forma financial statements, and (iii) have been
properly computed on the bases described therein; the assumptions used in the
preparation of the pro forma financial data and other pro forma financial
information included in the Final Memorandum are reasonable and the adjustments
used therein are appropriate to give effect to the transactions or circumstances
referred to therein.
(m) Other than as described in the Memorandum under the captions
"Business-Legal Proceedings," there is not pending or, to the knowledge of the
Company, threatened any action, suit, proceeding, inquiry or investigation to
which the Company or any of the Subsidiaries is a party, or to which any of the
property or assets of the Company or the Subsidiaries is subject, before or
brought by any court, arbitrator or governmental agency or body which, if
determined adversely to the Company or any of the Subsidiaries, would reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect
or which seeks to restrain, enjoin, prevent the consummation of or otherwise
challenge the issuance or sale of the Notes to be sold hereunder or the
consummation of the other transactions described in the Final Memorandum.
(n) Each of the Company and the Subsidiaries owns or possesses
adequate licenses or other rights to use all patents, trademarks, service marks,
trade names, copyrights and know-how necessary to conduct the businesses now or
proposed to be operated by it as described in the Final Memorandum, and,
except as set forth in the Final Memorandum, none of the Company or the
Subsidiaries has received any notice of infringement of or conflict with (or
knows of any such infringement of or conflict with) asserted rights of others
with respect to any patents, trademarks, service marks, trade names, copyrights
or know-how which, if such assertion of infringement or conflict were sustained,
would reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(o) Each of the Company and the Subsidiaries possesses all licenses,
permits, certificates, consents, orders, approvals and other authorizations
from, and has made or will have 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 rea-
-8-
sonably be expected, individually or in the aggregate, to have a Material
Adverse Effect; each of the Company and the Subsidiaries has fulfilled and
performed all of its material 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 the
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 reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(p) Since the date of the most recent financial statements appearing
in the Final Memorandum, except as described therein, (i) none of the Company or
the Subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into or agreed to enter into any transactions or
contracts (written or oral) not in the ordinary course of business which
liabilities, obligations, transactions or contracts would, individually or in
the aggregate, be material to the general affairs, management, business,
condition (financial or otherwise), prospects or results of operations of the
Company and the Subsidiaries, taken as a whole (a "Material Change"), (ii) none
---------------
of the Company or the Subsidiaries has purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock, and (iii) there shall not have been any change in the
capital stock or long-term indebtedness of the Company or the Subsidiaries which
would, individually or in the aggregate, be a Material Change.
(q) Each of the Company and the Subsidiaries has filed all necessary
federal, state and foreign income and franchise tax returns, except where the
failure to so file such returns would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, and has
paid all taxes shown as due thereon; and other than tax deficiencies which the
Company or any Subsidiary is contesting in good faith and for which the Company
or such Subsidiary has provided adequate reserves, there is no tax deficiency
that has been asserted against the Company or any of the Subsidiaries that would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(r) The statistical and market-related data included in the Final
Memorandum are based on or derived from sources
-9-
which the Company and the Subsidiaries believe to be reliable and accurate.
(s) None of the Company, the Subsidiaries or, to the best of their
knowledge, any agent acting on their behalf has taken or will take any action
that might cause this Agreement or the sale of the Notes to violate Regulation
G, T, U or X of the Board of Governors of the Federal Reserve System, in each
case as in effect, or as the same may hereafter be in effect, on the Closing
Date.
(t) Each of the Company and the Subsidiaries has good and marketable
title to all real property and good title to all personal property described in
the Final Memorandum as being owned by it and good and marketable title to a
leasehold estate in the real and personal property described in the Final
Memorandum as being leased by it free and clear of all liens, charges,
encumbrances or restrictions, except as described in the Final Memorandum or to
the extent the failure to have such title or the existence of such liens,
charges, encumbrances or restrictions would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect. All
leases, contracts and agreements to which the Company or any of the Subsidiaries
is a party or by which any of them is bound are valid and enforceable against
the Company or such Subsidiaries, and to the knowledge of the Company, are
valid and enforceable against the other party or parties thereto and are in full
force and effect with only such exceptions as would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect.
(u) There are no pending legal or governmental proceedings involving
or affecting the Company or any Subsidiary or any of their respective properties
or assets which would be required to be described in a prospectus pursuant to
the Act that are not described in the Final Memorandum, nor are there any
material contracts or other documents which would be required to be described in
a prospectus pursuant to the Act that are not described in the Final Memorandum.
(v) Except as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, (A) each of the Company and the
Subsidiaries is in compliance with and not subject to liability under applicable
Environmental Laws, (B) each of the Company and the Subsidiaries has made all
filings and provided all notices required under any applicable Environmental
-10-
Law, and has and is in compliance with all Permits required under any applicable
Environmental Laws and each of them is in full force and effect, (C) there is no
civil, criminal or administrative action, suit, demand, claim, hearing, notice
of violation, investigation, proceeding, notice or demand letter or request for
information pending or, to the knowledge of the Company or any of the
Subsidiaries, threatened against the Company or any of the Subsidiaries under
any Environmental Law, (D) no lien, charge, encumbrance or restriction has been
recorded under any Environmental Law with respect to any assets, facility or
property owned, operated, leased or controlled by the Company or any of the
Subsidiaries, (E) none of the Company or the Subsidiaries has received notice
that it has been identified as a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA"), or any comparable state law, (F) no property or facility of
------
the Company or any of the Subsidiaries is (i) listed or proposed for listing on
the National Priorities List under CERCLA or is (ii) listed in the Comprehensive
Environmental Response, Compensation, Liability Information System List
promulgated pursuant to CERCLA, or on any comparable list maintained by any
state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state and local laws or regulations,
codes, orders, decrees, judgments or injunctions issued, promulgated, approved
or entered thereunder, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials, into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface strata),
(ii) the manufacture, processing, distribution, use, generation, treatment,
storage, disposal, transport or handling of hazardous materials, and (iii)
underground and above ground storage tanks, and related piping, and emissions,
discharges, releases or threatened releases therefrom.
(w) There is no strike, labor dispute, slowdown or work stoppage with
the employees of the Company or any of the Subsidiaries which is pending or, to
the knowledge of the Company or any of the Subsidiaries, threatened.
(x) Each of the Company and the Subsidiaries carries insurance in
such amounts and covering such risks as the Company believes is adequate for the
conduct of its business and the value of its properties.
-11-
(y) None of the Company or the Subsidiaries has any liability for any
prohibited transaction or funding deficiency or any complete or partial
withdrawal liability with respect to any pension, profit sharing or other plan
which is subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), to which the Company or any of the Subsidiaries makes or ever
-----
has made a contribution and in which any employee of the Company or of any
Subsidiary is or has ever been a participant. With respect to such plans, the
Company and each Subsidiary are in compliance in all material respects with all
applicable provisions of ERISA.
(z) Each of the Company and the 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.
(aa) None of the Company or the Subsidiaries will be an "investment
company" or "promoter" or "principal underwriter" for an "investment company,"
as such terms are defined in the Investment Company Act of 1940, as amended, and
the rules and regulations thereunder.
(bb) The Notes, the Exchange Notes, the Indenture and the Registration
Rights Agreement will conform in all material respects to the descriptions
thereof in the Final Memorandum.
(cc) No holder of securities of the Company or any Subsidiary 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 other than as expressly permitted thereby.
(dd) To the best of the Company's knowledge, immediately after the
consummation of the transactions contemplated by this Agreement and the
Recapitalization Agreement, the fair value and present fair saleable value of
the assets of the Company will exceed the sum of its stated liabilities and
identified contingent liabilities; the Company is not, nor will the Company be,
after giving effect to the execution, delivery and performance of this Agreement
and the Recapitalization Agreement, and the consummation of the transactions
contemplated
-12-
hereby and thereby, (a) left with unreasonably small capital with which to carry
on its business as it is proposed to be conducted, (b) unable to pay its debts
(contingent or otherwise) as they mature or (c) otherwise insolvent.
(ee) Neither the Company nor its respective Affiliates (as defined in
Rule 501(b) of Regulation D under the Act) has directly, or through any agent,
(i) sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any "security" (as defined in the Act) which is or could be
integrated with the sale of the Notes in a manner that would require the
registration under the Act of the Notes or (ii) engaged in any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Act) in connection with the offering of the Notes or in any manner
involving a public offering within the meaning of Section 4(2) of the Act.
(ff) Assuming the accuracy of the representations and warranties of the
Initial Purchaser in Section 8 hereof, it is not necessary in connection with
the offer, sale and delivery of the Notes to the Initial Purchaser in the manner
contemplated by this Agreement to register any of the Notes under the Act or to
qualify the Indenture under the TIA.
(gg) No securities of the Company are of the same class (within the
meaning of Rule 144A under the Act) as the Notes 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.
(hh) None of the Company or the Subsidiaries has taken, nor will any of
them take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation of the
price of the Notes.
Any certificate signed by any officer of the Company or any Subsidiary
and delivered to the Initial Purchaser or to counsel for the Initial Purchaser
shall be deemed a joint and several representation and warranty by the Company
and each of the Subsidiaries to the Initial Purchaser as to the matters covered
thereby. Any officer of the Company or any Subsidiary executing a certificate
pursuant to the terms of this Agreement shall be deemed to do so exclusively in
his/her capacity as an officer of the Company or any Subsidiary and shall not
incur any personal liability in connection therewith.
-13-
3. Purchase, Sale and Delivery of the Notes. 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 to
issue and sell to the Initial Purchaser, and the Initial Purchaser agrees to
purchase the Notes in the amount set forth on Schedule 1 hereto from the
----------
Company, at 97.00% of their principal amount. One or more certificates in
definitive form for the Notes that the Initial Purchaser has agreed to purchase
hereunder, and in such denomination or denominations and registered in such name
or names as the Initial Purchaser requests shall be delivered by or on behalf of
the Company to the Initial Purchaser, against payment by or on behalf of the
Initial Purchaser of the purchase price therefor by wire transfer (same day
funds), to such account or accounts as the Company has specified, or by such
means as the parties hereto shall agree prior to the Closing Date. Such
delivery of and payment for the Notes shall be made at the offices of White &
Case, New York, New York at 10:00 A.M., New York time, on May 16, 1997, or at
such other place, time or date as the Initial Purchaser, on the one hand, and
the Company, on the other hand, may agree upon, such time and date of delivery
against payment being herein referred to as the "Closing Date."
------------
4. Offering by the Initial Purchaser. The Initial Purchaser proposes to
---------------------------------
make an offering of the Notes 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 Purchaser is advisable.
5. Covenants of the Company. The Company covenants and agrees with the
------------------------
Initial Purchaser that:
(a) The Company will not amend or supplement the Final Memorandum or
any amendment or supplement thereto of which the Initial Purchaser 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
Purchaser shall not have given its consent (which shall not be unreasonably
withheld). The Company will promptly, upon the reasonable request of the Initial
Purchaser or counsel for the Initial Purchaser (and agreement by counsel to
the Company), make any amendments or supplements to the Preliminary
Memorandum or the Final Memorandum that may be necessary or advisable in
connection with the resale of the Notes by the Initial Purchaser.
-14-
(b) The Company will cooperate with the Initial Purchaser in arranging
for the qualification of the Notes for offering and sale under the securities or
"Blue Sky" laws of such jurisdictions as the Initial Purchaser may reasonably
designate and will continue such qualifications in effect for as long as may be
reasonably necessary to complete the resale of the Notes; provided, however,
-------- -------
that in connection therewith, the Company shall not 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 Purchaser of the 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 will promptly notify
the Initial Purchaser thereof and will prepare, at the expense of the Company,
an amendment or supplement to the Final Memorandum that corrects such statement
or omission or effects such compliance.
(d) The Company will, without charge, provide to the Initial Purchaser
and to counsel for the Initial Purchaser as many copies of the Preliminary
Memorandum and the Final Memorandum or any amendment or supplement thereto as
the Initial Purchaser may reasonably request.
(e) The Company will apply the net proceeds from the sale of the Notes
as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Notes remain outstanding, the Company
will furnish to the Initial Purchaser copies of all reports and other
communications (financial or otherwise) furnished by the Company to the Trustee,
or the holders of the Notes and, as soon as available, copies of any reports or
financial statements furnished to or filed by the Company with the Commission or
any national securities exchange on which any class of securities of the Company
may be listed.
-15-
(g) Prior to the Closing Date, the Company will furnish to the Initial
Purchaser, as soon as they have been prepared, a copy of any unaudited interim
financial statements of the Company 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 Notes in a manner which would require the registration under the Act of the
Notes.
(i) The Company will not, and will not permit any of the Subsidiaries
to, engage in any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Act) in connection with the offering of
the Notes 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 Notes remain outstanding, the Company
will make available, upon request (and within a reasonable period of time), to
any seller of such Notes 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 (or is obligated to file such reports required by Section 13 or 15(d) of the
Exchange Act with the Commission).
(k) The Company will use its best efforts to (i) permit the Notes to be
designated PORTAL securities in accordance with the rules and regulations
adopted by the NASD relating to trading in the Private Offerings, Resales and
Trading through Automated Linkages market (the "Portal Market") and (ii) permit
-------------
the Notes to be eligible for clearance and settlement through The Depository
Trust Company.
(l) In connection with the Notes offered hereby and sold in an offshore
transaction (as defined in Regulation S) the Company will not register any
transfer of such Notes not made in accordance with the provisions of Regulation
S and will not, except in accordance with the provision of Regulation S, issue
any such Notes in the form of definitive securities.
6. Expenses. The Company agrees to pay all costs and expenses incident
--------
to the performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
-16-
pursuant to Section 11 hereof, including all costs and expenses incident to (i)
the printing, word processing or other production of documents with respect to
the transactions contemplated hereby, including any costs of printing the
Preliminary Memorandum and the Final Memorandum and any amendment or supplement
thereto, and any "Blue Sky" memoranda, (ii) all arrangements relating to the
delivery to the Initial Purchaser of copies of the foregoing documents, (iii)
the fees and disbursements of the counsel, the accountants and any other experts
or advisors retained by the Company, (iv) preparation (including printing),
issuance and delivery to the Initial Purchaser of the Notes, (v) the
qualification of the Notes under state securities and "Blue Sky" laws, including
filing fees and reasonable fees and disbursements of counsel for the Initial
Purchaser relating thereto, (vi) expenses of the Company in connection with any
meetings with prospective investors in the Notes, (vii) fees and expenses of the
Trustee including fees and expenses of counsel, (viii) all expenses and listing
fees incurred in connection with the application for quotation of the Notes on
the PORTAL Market and (ix) any fees charged by investment rating agencies for
the rating of the Notes. If the sale of the Notes provided for herein is not
consummated because any condition to the obligations of the Initial Purchaser
set forth in Section 7 hereof is not satisfied, because this Agreement is
terminated pursuant to paragraphs (i) and (v) of Section 11 hereof or because of
any failure, refusal or inability on the part of the Company to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder (other than solely by reason of a default by the Initial Purchaser of
its obligations hereunder after all conditions hereunder have been satisfied in
accordance herewith), the Company agrees to reimburse promptly the Initial
Purchaser upon demand for all out-of-pocket expenses (including fees,
disbursements and charges of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Initial
Purchaser) that shall have been incurred by the Initial Purchaser in connection
with the proposed purchase and sale of the Notes.
7. Conditions of the Initial Purchaser's Obligations. The obligation of
-------------------------------------------------
the Initial Purchaser to purchase and pay for the Notes shall, in its sole
discretion, be subject to the satisfaction or waiver of the following conditions
on or prior to the Closing Date:
(a) All of the conditions contained in the Credit Agreement to be
fulfilled or complied with prior to any borrowing under such agreement (other
than the transactions contemplated by this Agreement) shall have been complied
with; and
-17-
the financing for the Recapitalization (other than the offering and sale of the
Notes as set forth herein and the application of the proceeds therefrom) shall
have been consummated or shall be consummated simultaneously herewith.
(b) On the Closing Date, the Initial Purchaser shall have received the
opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of
Xxxxxxxx & Xxxxx, counsel for the Company, in form and substance satisfactory to
counsel for the Initial Purchaser substantially in the form set forth on Exhibit
A hereto. In rendering such opinion, Xxxxxxxx & Xxxxx shall have received and
may rely upon such certificates and other documents and information as it may
reasonably request to pass upon such matters.
(c) On the Closing Date, the Initial Purchaser shall have received the
opinion, in form and substance satisfactory to the Initial Purchaser, dated as
of the Closing Date and addressed to the Initial Purchaser, of Xxxxxx Xxxxxx &
Xxxxxxx, counsel for the Initial Purchaser, with respect to certain legal
matters relating to this Agreement and such other related matters as the Initial
Purchaser may reasonably require. In rendering such opinion, Xxxxxx Xxxxxx &
Xxxxxxx shall have received and may rely upon such certificates and other
documents and information as it may reasonably request to pass upon such
matters.
(d) The Initial Purchaser shall have received from the Independent
Accountants comfort letters dated the date hereof and the Closing Date, in form
and substance satisfactory to counsel for the Initial Purchaser.
(e) The representations and warranties of the Company contained in this
Agreement shall be true and correct on and as of the date hereof and on and as
of the Closing Date as if made on and as of the Closing Date; the statements of
the Company's officers made pursuant to any certificate delivered in accordance
with the provisions hereof shall be true and correct on and as of the date made
and on and as of the Closing Date; the Company shall have performed all
covenants and agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date; and, except as
described in the Final Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), subsequent to the date of the most recent
financial statements in such Final Memorandum, there shall have been no event or
development that, individually or in the aggregate, has or would be reasonably
likely to have a Material Adverse Effect.
-18-
(f) The Recapitalization and the sale of the Notes hereunder shall not
be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the most recent financial statements in
the Final Memorandum (exclusive of any amendment or supplement thereto after the
date hereof), the conduct of the business and operations of the Company or any
of the Subsidiaries shall not have been interfered with by strike, fire, flood,
hurricane, accident or other calamity (whether or not insured) or by any court
or governmental action, order or decree, and, except as otherwise stated
therein, the properties of the Company, any of the Subsidiaries shall not have
sustained any loss or damage (whether or not insured) as a result of any such
occurrence, except any such interference, loss or damage which would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
(h) The Initial Purchaser shall have received a certificate of the
Company, dated the Closing Date, signed by its Chairman of the Board, President
or any Senior Vice President and the Chief Financial Officer (in their
respective capacities as such), to the effect that, to the best of their
knowledge and belief:
(i) The representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date, and the Company has
performed all covenants and agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the
most recent financial statements in the Final Memorandum (exclusive of any
amendment or supplement thereto after the date hereof), no event or events
have occurred, no information has become known nor does any condition exist
that, individually or in the aggregate, would have a Material Adverse Effect;
(iii) The Recapitalization and the sale of the Notes hereunder have not
been enjoined (temporarily or permanently); and
(iv) There have been no material amendments, alterations, modifications
or waivers of any provisions of the Recapitalization Agreement and related
documents since the date of the execution and delivery thereof by the parties
-19-
thereto; the Company has complied in all material respects with all agreements
and covenants in the Recapitalization Agreement and related documents and
performed all conditions specified therein required to be complied with or
performed by them at or prior to the Closing Date.
(i) On the Closing Date, the Initial Purchaser 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 Closing Date.
(j) The Initial Purchaser shall have received from the Company a true
and correct executed copy of the Credit Agreement, dated on or about the Closing
Date, and there shall have been no material amendments, alterations,
modifications or waivers of any provisions of the Credit Agreement, and there
exists as of the Closing Date (after giving effect to the transactions
contemplated by this Agreement and the application of the proceeds received by
the Company from the sale of the Notes) no condition that would constitute a
Default or an Event of Default (each as defined in the Credit Agreement) under
the Credit Agreement.
(k) The Initial Purchaser shall have received from the Company a true
and correct executed copy of the Recapitalization Agreement, and there shall
have been no material amendments, alterations, modifications or waivers of any
provisions of the Recapitalization Agreement since the date of this Agreement;
all conditions to effect the Acquisition set forth in the Recapitalization
Agreement shall have been satisfied.
(l) On the Closing Date, the Initial Purchaser shall have received an
opinion from Xxxxxx, Xxxxxx & Co., in a form reasonably satisfactory to the
Initial Purchaser, regarding the solvency of the Company immediately after the
consummation of the Recapitalization and the transactions contemplated thereby.
On or before the Closing Date, the Initial Purchaser and counsel for the
Initial Purchaser shall have received such further documents, opinions,
certificates, letters and schedules or instruments relating to the business,
corporate, legal and financial affairs of the Company and the Subsidiaries as
they shall have heretofore reasonably requested from the Company.
All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are rea-
-20-
sonably satisfactory in all material respects to the Initial Purchaser and
counsel for the Initial Purchaser. The Company shall furnish to the Initial
Purchaser such conformed copies of such documents, opinions, certificates,
letters, schedules and instruments in such quantities as the Initial Purchaser
shall reasonably request.
8. Offering of Notes; Restrictions on Transfer. The Initial Purchaser
-------------------------------------------
represents and warrants (as to itself only) that it is a QIB. The Initial
Purchaser agrees with the Company that (i) it has not and will not solicit
offers for, or offer or sell, the Notes 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; and (ii) it has and will solicit offers for the Notes only from, and
will offer the Notes only to (A) in the case of offers inside the United States,
(x) persons whom the Initial Purchaser 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 Purchaser 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 (y) a limited number of other
institutional investors reasonably believed by the Initial Purchaser to be
Accredited Investors that, prior to their purchase of the Notes, deliver to the
Initial Purchaser 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 Notes such persons are deemed to have represented and agreed as
provided, however, that in the case of this clause (b), in purchasing such
-------- -------
Notes such persons are deemed to have represented and agreed as provided under
the caption "Transfer Restrictions" contained in the Final Memorandum.
9. Indemnification and Contribution. The Company agrees to indemnify
--------------------------------
and hold harmless the Initial Purchaser and the affiliates, directors, officers,
agents, representatives and employees of the Initial Purchaser or its
affiliates, and each other person, if any, who controls the Initial Purchaser or
its affiliates within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, against any losses, claims, damages or liabilities to which the
Initial Purchaser or such other person may become subject under the Act, the
Exchange Act
-21-
or otherwise, insofar as any such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material
fact contained in any Memorandum or any amendment or supplement thereto or
any application or other document, or any amendment or supplement thereto,
executed by the Company or based upon written information furnished by or
on behalf of the Company filed in any jurisdiction in order to qualify the
Notes under the securities or "Blue Sky" laws thereof or filed with any
securities association or securities exchange (each an "Application"); or
(ii) the omission or alleged omission to state, in any Memorandum or any
amendment or supplement thereto or any Application, a material fact
required to be stated therein or necessary to make the statements therein
not misleading,
and will reimburse, as incurred, the Initial Purchaser and each such other
person for any legal or other expenses incurred by the Initial Purchaser or such
other person in connection with investigating, defending against or appearing as
a third-party witness in connection with any such loss, claim, damage, liability
or action; provided, however, the Company will not be liable in any such case to
-------- -------
the extent that any such loss, claim, damage, or liability arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in any Memorandum or any amendment or supplement thereto
or any Application in reliance upon and in conformity with written information
concerning the Initial Purchaser furnished to the Company by the Initial
Purchaser, specifically for use therein. This indemnity agreement will be in
addition to any liability that the Company may otherwise have to the indemnified
parties; and provided, further, that the Company will not be liable to the
-------- -------
Initial Purchaser or any person controlling the Initial Purchaser or any of
their respective affiliates, directors, officers, agents, representatives or
employees with respect to any such untrue statement or omission made in the
Preliminary Memorandum that is corrected in the Final Memorandum (or any
amendment or supplement thereto) if the person asserting any such loss, claim,
damage or liability purchased Notes from the Initial Purchaser in reliance upon
the Preliminary Memorandum but was not sent or given a copy of the Final
Memorandum (as amended or supplemented) at or prior to the written confirmation
of the sale of such Notes to such
-22-
person, unless such failure to deliver the Final Memorandum (as amended or
supplemented) was a result of noncompliance by the Company with Section 5(d) of
this Agreement. The Company shall not be liable under this Section 9 for any
settlement of any claim or action effected without its prior written consent,
which shall not be unreasonably withheld.
(b) The Initial Purchaser agrees to indemnify and hold harmless the
Company, its directors, its officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person may become subject
under the Act, 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 (i) any untrue statement or alleged untrue statement of any material fact
contained in any Memorandum or any amendment or supplement thereto or any
Application or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in any Memorandum or any amendment or
supplement thereto or any Application, 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 alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
concerning such Initial Purchaser, furnished to the Company by the Initial
Purchaser specifically for use therein; and subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action in respect thereof. This indemnity agreement will be
in addition to any liability that the Initial Purchaser may otherwise have to
the indemnified parties. The Initial Purchaser shall not be liable under this
Section 9 for any settlement of any claim or action effected without its
consent, which shall not be unreasonably withheld. The Company shall not,
without the prior written consent of the Initial Purchaser, effect any
settlement or compromise of any pending or threatened proceeding in respect of
which the Initial Purchaser is or could have been a party, or indemnity could
have been sought hereunder by the Initial Purchaser, unless such settlement (A)
includes an unconditional written release of the Initial Purchaser, in form and
substance reasonably satisfactory to the Initial Purchaser, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include
-23-
any statement as to an admission of fault, culpability or failure to act by or
on behalf of the Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of the commencement of any action for which such indemnified party
is entitled to indemnification under this Section 9, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9, notify the indemnifying party of the commencement thereof
in writing; but the omission to so notify the indemnifying party (i) will not
relieve it from any liability under paragraph (a) or (b) above unless and to the
extent such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraphs (a) and (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 wi
th any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if (i) the use of counsel chosen by the indemnifying
-------- -------
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 9 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense
-24-
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Initial Purchaser in the case of
paragraph (a) of this Section 9 or the Company in the case of paragraph (b) of
this Section 9, representing the indemnified parties under such paragraph (a) or
paragraph (b), as the case may be, who are parties to such action or actions) or
(ii) the indemnifying party has authorized in writing the employment of counsel
for the indemnified party at the expense of the indemnifying party. After such
notice from the indemnifying party to such indemnified party, the indemnifying
party will not be liable for the costs and expenses of any settlement of such
action effected by such indemnified party without the prior written consent of
the indemnifying party (which consent shall not be unreasonably withheld),
unless such indemnified party waived in writing its rights under this Section 9,
in which case the indemnified party may effect such a settlement without such
consent.
(d) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 9 is unavailable to, or insufficient
to hold harmless, an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof), each indemnifying party, in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Notes or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof). The relative benefits received by the Company on the one hand and the
Initial Purchaser on the other shall be deemed to be in the same proportion as
the total proceeds from the offering (before deducting expenses) received by the
Company bear to the total discounts and commissions received by the Initial
Purchaser.
-25-
The relative fault of the 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 Company on the one hand, or the Initial Purchaser on
the other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or alleged
statement or omission, and any other equitable considerations appropriate in the
circumstances. The Company and the Initial Purchaser agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the first sentence of this
paragraph (d). Notwithstanding any other provision of this paragraph (d), the
Initial Purchaser shall not be obligated to make contributions hereunder that in
the aggregate exceed the total discounts, commissions and other compensation
received by the Initial Purchaser under this Agreement, less the aggregate
amount of any damages that the Initial Purchaser has otherwise been required to
pay by reason of the untrue or alleged untrue statements or the omissions or
alleged omissions to state a material fact, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Initial Purchaser, and each director of the Company, each officer of the Company
and each person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company.
10. Survival Clause. The respective representations, warranties,
---------------
agreements, covenants, indemnities and other statements of the Company, its
officers and the Initial Purchaser set forth in this Agreement or made by or on
behalf of them pursuant to this Agreement shall remain in full force and effect,
regardless of (i) any investigation made by or on behalf of the Company, any of
its officers or directors, the Initial Purchaser or any other person referred to
in Section 9 hereof and (ii) delivery of and payment for the Notes. The
respective agreements, covenants, indemnities and other statements set forth in
Sections 6, 9 and 15 hereof shall remain in full force and effect, regardless of
any termination or cancellation of this Agreement.
-26-
11. Termination. This Agreement may be terminated in the sole
-----------
discretion of the Initial Purchaser by notice to the Company given prior to the
Closing Date in the event that the Company 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 Date:
(i) any of the Company or 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 Purchaser, 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 be reasonably likely to have a Material Adverse Effect
(including without limitation a change in control of the Company), 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 Purchaser, makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Notes as
contemplated by the Final Memorandum; or
(v) any securities of the Company shall have been downgraded or
placed on any "watch list" for possible
-27-
downgrading by any nationally recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 11 shall
be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by the Initial Purchaser. The statements
---------------------------------------------
set forth in the last paragraph on the front cover page, the first paragraph on
page (i), and in the last two paragraphs and the last two sentences of the third
paragraph under the heading "Private Placement" in the Final Memorandum (to the
extent such statements relate to the Initial Purchaser) constitute the only
information furnished by the Initial Purchaser to the Company for the purposes
of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing and,
-------
if sent to the Initial Purchaser, shall be mailed or delivered to BT Securities
Corporation, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Finance Department; if sent to the Company, shall be mailed or delivered to the
Company at 0000 Xxxxxxxx Xxx, Xxxxxxx, Xxxxxxxxxx, 00000, Attention: Chief
Financial Officer; with a copy to Xxxxxxxx & Xxxxx, 000 Xxxx Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx, 00000, Attention: Xxxxxx X. Xxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; and one business
day after being timely delivered to a next-day air courier.
14. Successors. This Agreement shall inure to the benefit of and
----------
be binding upon the Initial Purchaser, the Company 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 contained in Section 9 of this Agreement shall
also be for the benefit of any person or persons who control the Initial
Purchaser within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and (ii) the indemnities of the Initial Purchaser contained in
Section 9 of
-28-
this Agreement shall also be for the benefit of the directors and officers of
the Company and any person or persons who control the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act. No purchaser of
Notes from the Initial Purchaser will be deemed a successor because of such
purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
--------------
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-29-
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company
and the Initial Purchaser.
Very truly yours,
THERMA-WAVE, INC.
By: [SIGNATURE APPEARS HERE]
---------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
BT SECURITIES CORPORATION
By: [SIGNATURE APPEARS HERE]
---------------------------
Name:
Title:
SCHEDULE 1
----------
Principal
Amount of
Initial Purchaser Notes
----------------- ----------
BT Securities Corporation $115,000,000
-------------
Total $115,000,000
SCHEDULE 2
----------
Subsidiaries of the Company
---------------------------
Jurisdiction of
Name Incorporation
---- ---------------
Therma-Wave, Ltd. United Kingdom
Therma-Wave (Japan), K.K. Japan
Therma-Wave Foreign Sales Corp. Barbados
Therma-Wave Domestic International California/1/
Sales Corp.
------------------------
/1/ In the process of being dissolved.
SCHEDULE 3
----------
Material Contracts of the Company
---------------------------------
1. Employment Agreement, each dated as of the date hereof, between the Company
and Xx. Xxxxx Xxxxxxxxxx; Xxxxx X. Xxxxxxxxxx; Xxx Xxxxx; Xxx Xxxxx and
Xxxxxxx X. Xxx.
2. Executive Stock Agreement, each dated as of the date hereof, between the
Company and Xx. Xxxxx Xxxxxxxxxx, Xxxxx X. Xxxxxxxxxx; Xxx Xxxxx; Xxx Xxxxx
and Xxxxxxx X. Xxx.
3. Therma-Wave, Inc. 1997 Stock Purchase and Option Plan.
4. Registration Agreement, dated as of the date hereof, between the Company
and the stockholders named therein.
5. Stockholders Agreement, dated as of the date hereof, between the Company
and the stockholders named therein.
6. Development License Agreement, dated June 16, 1992, between the Company,
Therma-Wave K.K., Toray Industries, Inc. and Shimadzu Corporation.
7. New Development Agreement, dated December 22, 1995, between Therma-Wave,
Inc. and Toray Industries, Inc.
8. Lease Agreement, dated as of May 26, 1995, between the Company and Sobrato
Interests.
9. Advisory Agreement, dated as of the date hereof, between the Company and
Xxxx Capital, Inc.
10. Voting Agreement, dated as of the date hereof, between the Company and
certain stockholders named therein.
11. Credit Agreement, dated as of the date hereof, between the Company and
Bankers Trust Company, as agent, and certain financial institutions named
therein.
12. Pledge Agreement, dated as of the date hereof, between the Company and
Bankers Trust Company, as agent.
13. Security Agreement, dated as of the date hereof, between the Company and
Bankers Trust Company, as agent.
-33-
14. Recapitalization Agreement, dated December 18, 1996, by and among Xxxx
Capital Fund V, L.P., Xxxx Capital Fund V-B, L.P., BCIP Associates, BCIP
Trust Associates, L.P., Toray Industries, Inc., Toray Industries (America),
Inc. and Shimadzu Corporation.
-34-
Exhibit A
---------
