Exhibit 4.4
EXECUTION COPY
$400,000,000
OM GROUP, INC.
9 1/4% SENIOR SUBORDINATED NOTES DUE 2011
PURCHASE AGREEMENT
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December 7, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
ABN AMRO INCORPORATED
XXXXXX BROTHERS INC.
BANC ONE CAPITAL MARKETS, INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
NATCITY INVESTMENTS, INC.
BARCLAYS CAPITAL INC.
SCOTIA CAPITAL (USA) INC.
As Representatives of the Several Purchasers,
c/o Credit Suisse First Boston Corporation,
Xxxxxx Xxxxxxx Xxxxxx,
Xxx Xxxx, N.Y. 10010-3629
Dear Sirs or Madams:
1. Introductory. OM Group, Inc., a Delaware corporation (the
"COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in SCHEDULE A hereto (the
"PURCHASERS") U.S. $400,000,000 principal amount of its 9 1/4% Senior
Subordinated Notes due 2011 ("OFFERED SECURITIES") to be issued under an
indenture, dated as of December 12, 2001 (the "INDENTURE"), between the Company
and the Bank of New York, as Trustee. The Offered Securities will be guaranteed
(the "SUBSIDIARY GUARANTEES") by each of the entities listed on SCHEDULE B
hereto (each a "GUARANTOR" and collectively, the "GUARANTORS"). The United
States Securities Act of 1933 is herein referred to as the "SECURITIES ACT."
The Purchasers have advised the Company that the Purchasers will make
offers (the "EXEMPT RESALES") of the Offered Securities purchased hereunder on
the terms set forth in the Offering Circular, as amended or supplemented, solely
to (a) persons whom the Purchasers reasonably believe to be "qualified
institutional buyers" as defined in Rule 144A under the Securities Act, and (b)
persons permitted to purchase the Offered Securities in offshore transactions in
reliance upon Regulation S under the Securities Act ("REGULATION S") (such
persons specified in clauses (a) and (b) being referred to herein as the
"ELIGIBLE PURCHASERS").
Holders (including subsequent transferees) of the Offered Securities
will have the registration rights set forth in the registration rights agreement
(the "REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date (as defined
below), in substantially the form of EXHIBIT I hereto, for so long as such
Offered Securities constitute "TRANSFER RESTRICTED SECURITIES" (as defined in
the Registration Rights Agreement). Pursuant to the Registration Rights
Agreement, the Company and the Guarantors will agree
to file with the Securities and Exchange Commission (the "COMMISSION") under the
circumstances set forth therein, (i) a registration statement under the
Securities Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating to the
Company's 9 1/4% Senior Subordinated Notes in a like aggregate principal amount
as the Company issued under the Indenture, identical in all material respects to
the Offered Securities and registered under the Securities Act (the "EXCHANGE
SECURITIES"), to be offered in exchange for the Offered Securities (such offer
to exchange being referred to as the "EXCHANGE OFFER") and the Subsidiary
Guarantees thereof and (ii) a shelf registration statement pursuant to Rule 415
under the Securities Act (the "SHELF REGISTRATION STATEMENT" and, together with
the Exchange Offer Registration Statement, the "REGISTRATION STATEMENTS")
relating to the resale by certain holders of the Offered Securities and to use
their reasonable best efforts to cause such Registration Statements to be
declared and remain effective and usable for the periods specified in the
Registration Rights Agreement and to consummate the Exchange Offer. The Offered
Securities and the Exchange Securities are referred to collectively as the
"SECURITIES."
The Company and each of the Guarantors hereby agree with the several
Purchasers as follows:
2. Representations and Warranties of the Company and the Guarantors.
The Company and each of the Guarantors represent and warrant to, and agree with,
the several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities to be offered by the Purchasers have
been prepared by the Company. Such preliminary offering circular (the
"PRELIMINARY OFFERING CIRCULAR") and offering circular (the "OFFERING
CIRCULAR"), as supplemented as of the date of this Agreement, 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.
Except as disclosed in the Offering Document, on the date of this
Agreement, 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 shareholders pursuant to the Securities Exchange
Act of 1934 (the "EXCHANGE ACT") do not include any untrue statement of
a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading. Such documents, 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 corporate power and authority to own its properties and conduct
its business as described in the Offering Document; and the Company is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except
where the failure to 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) The entities listed on SCHEDULE C hereto are the only
subsidiaries, direct or indirect, of the Company, and each such
subsidiary has been duly incorporated and is an existing corporation in
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good standing under the laws of the jurisdiction of its incorporation,
with corporate power and authority to own its properties and conduct
its business as described in the Offering Document; and each subsidiary
of the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to 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 the capital stock of each subsidiary owned
by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(d) The Indenture has been duly authorized; the Offered
Securities have been duly authorized by the Company; and when the
Offered Securities are delivered and paid for pursuant to this
Agreement on the Closing Date, the Indenture will have been duly
executed and delivered, such Offered Securities will have been duly
executed, authenticated, issued and delivered and will conform in all
material respects to the description thereof contained in the Offering
Document, and the Indenture (with respect to the Company and the
Guarantors) and such Offered Securities (with respect to the Company)
will constitute valid and legally binding obligations of the Company
and the Guarantors, as applicable, 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. On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of
1939, as amended (the "TIA" or "TRUST INDENTURE ACT"), and the rules
and regulations of the Commission applicable to an indenture which is
qualified thereunder.
(e) The Subsidiary Guarantee to be endorsed on the Offered
Securities by each Guarantor has been duly authorized by such
Guarantor; and on the Closing Date, will have been duly executed and
delivered by each such Guarantor and will conform in all material
respects to the description thereof contained in the Offering Document.
When the Offered Securities have been issued, executed and
authenticated in accordance with the Indenture and delivered to and
paid for by the Purchasers in accordance with the terms of this
Agreement, the Subsidiary Guarantee of each Guarantor endorsed thereon
will constitute valid and legally binding obligations of such
Guarantor, 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.
(f) On the Closing Date, the Exchange Securities will have
been duly authorized by the Company; and when the Exchange Securities
are issued, executed and authenticated in accordance with the terms of
the Exchange Offer and the Indenture, the Exchange Securities will be
entitled to the benefits of the Indenture and will be the valid and
legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(g) The Subsidiary Guarantee to be endorsed on the Exchange
Securities by each Guarantor has been duly authorized by such
Guarantor; and, when issued, will have been duly executed and delivered
by each such Guarantor and will conform in all material respects to the
description thereof contained in the Offering Document. When the
Exchange Securities have been issued, executed and authenticated in
accordance with the terms of the Exchange Offer and the Indenture, the
Subsidiary Guarantee of each Guarantor endorsed thereon will constitute
valid and legally binding obligations of such Guarantor, enforceable in
accordance with its terms, subject to bankruptcy,
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insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(h) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company or any
Guarantor and any person that would give rise to a valid claim against
the Company, any Guarantor or any Purchaser for a brokerage commission,
finder's fee or other like payment.
(i) 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
or the Registration Rights Agreement in connection with the issuance
and sale of the Offered Securities by the Company, except as securities
or Blue Sky laws of various states may require.
(j) The execution, delivery and performance of the Indenture,
this Agreement and the Registration Rights Agreement, and the issuance
and sale of the Offered Securities and compliance with the terms and
provisions thereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, 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 properties, or
any 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 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 corporate power and authority to
authorize, issue and sell the Offered Securities as contemplated by
this Agreement.
(k) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors.
(l) The Registration Rights Agreement has been duly authorized
by the Company and each of the Guarantors and, on the Closing Date,
will have been duly executed and delivered by the Company and each of
the Guarantors. When the Registration Rights Agreement has been duly
executed and delivered, the Registration Rights Agreement will be a
valid and binding agreement of the Company and each of the Guarantors,
enforceable against the Company and each Guarantor 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. On the Closing Date, the Registration Rights Agreement will
conform as to legal matters in all material respects to the description
thereof in the Offering Circular.
(m) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in default in the
performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or their
respective property is bound, except for any defaults that would not
individually or in the aggregate have a Material Adverse Effect.
(n) Except as disclosed in the Offering Document, the Company
and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each
case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or
to be made thereof by them; and except as disclosed in the Offering
Document, the Company and its subsidiaries hold any leased real or
personal property
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under valid and enforceable leases with no exceptions that would
materially interfere with the use made or to be made thereof by them.
(o) Except as would not, individually or in the aggregate have
a Material Adverse Effect, 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. (p) No labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the Company,
is imminent, that might have a Material Adverse Effect.
(q) Except as would not, individually or in the aggregate have
a Material Adverse Effect, 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 neither the
Company nor any of its subsidiaries has 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.
(r) 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.
(s) 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, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company or any
Guarantor to perform its 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, to
the Company's knowledge, no such actions, suits or proceedings are
threatened or contemplated.
(t) The financial statements included in the Offering Document
present fairly 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
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; and the
assumptions used in preparing the pro forma financial statements
included in the Offering Document provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those
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assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(u) 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.
(v) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "INVESTMENT COMPANY ACT"); and the
Company is not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as
described in the Offering Document, will not be an "investment company"
as defined in the Investment Company Act.
(w) There are no contracts, agreements or understandings
between the Company or any Guarantor and any person granting such
person the right to require the Company or such Guarantor to file a
registration statement under the Securities Act with respect to any
securities of the Company or such Guarantor or to require the Company
or such Guarantor to include such securities with the Securities and
Subsidiary Guarantees registered pursuant to any Registration
Statement.
(x) Neither the Company nor any of its subsidiaries nor any
agent thereof acting on the behalf of them has taken, and none of them
will take, any action that might cause this Agreement or the issuance
or sale of the Offered Securities to violate Regulation T, Regulation U
or Regulation X of the Board of Governors of the Federal Reserve
System.
(y) No "nationally recognized statistical rating organization"
as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act (i) has imposed (or has informed the Company or any
Guarantor that it is considering imposing) any condition (financial or
otherwise) on the Company's or any Guarantor's retaining any rating
assigned to the Company or any Guarantor, any securities of the Company
or any Guarantor or (ii) has indicated to the Company or any Guarantor
that it is considering (a) the downgrading, suspension, or withdrawal
of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (b) any
change in the outlook for any rating of the Company, any Guarantor or
any securities of the Company.
(z) No registration under the Securities Act of the Offered
Securities or the Subsidiary Guarantees is required for the sale of the
Offered Securities and the Subsidiary Guarantees to the Purchasers as
contemplated hereby or for the Exempt Resales assuming the accuracy of
the Purchaser's representations and compliance by the Purchasers with
their agreements set forth in Section 4 hereof.
(aa) 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.
(bb) Assuming the accuracy of the Purchasers' representations
and compliance by the Purchasers with their agreements sets forth in
Section 4, the offer and sale of the Offered Securities
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and the Subsidiary Guarantees 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, Regulation D
thereunder and Regulation S thereunder, and it is not necessary to
qualify an indenture under the Trust Indenture Act in connection with
the sale of the Offered Securities.
(cc) Neither the Company, the Guarantors, nor any of their
affiliates, nor any person acting on its or their behalf (other than
the Purchasers, as to whom the Company and the Guarantors make no
representation) (i) has, within the six-month period prior to the date
hereof, offered or sold in the United States or to any U.S. person (as
such terms are defined in Regulation S under the Securities Act) the
Offered Securities or any security of the same class or series as the
Offered Securities or (ii) has offered or will offer or sell the
Offered Securities or the Subsidiary Guarantees (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,
including, but not limited to, articles, notices or other
communications published in any newspaper, magazine, or similar medium
or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising or (B) with respect to any such securities sold in reliance
on Rule 903 of 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 has not issued any notice with respect to the
offering of the Offered Securities that is for the purpose of
conditioning the market in the United States for the Offered
Securities. The Company, its affiliates and any person acting on its or
their behalf (other than the Purchasers, as to whom the Company and its
affiliates make no representation) 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.
(dd) None of the Company, the Guarantors nor any of their
respective affiliates or any person acting on its or their behalf
(other than the Purchasers, as to whom the Company and the Guarantors
make no representation) has offered or will offer or sell the Offered
Securities and Subsidiary Guarantees being offered and sold in reliance
on Regulation S other than in offshore transactions.
(ee) The sale of the Offered Securities pursuant to Regulation
S is not part of a plan or scheme to evade the registration provisions
of the Securities Act.
(ff) The Company is subject to Section 13 or 15(d) of the
Exchange Act.
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 97.25% of the principal amount thereof
plus accrued interest from December 12, 2001 to the Closing Date, the respective
principal amounts of Offered 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
Offered Securities in the form of one or more permanent global Securities in
definitive form (the "GLOBAL SECURITIES") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Offering Document. Payment for the Offered
Securities shall be made by the Purchasers in Federal (same day) funds by
official check or checks or wire transfer to an account at a bank acceptable to
CSFBC drawn to the order of the Company at the
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office of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M.
(New York time), on December 12, 2001, or at such other time not later than
seven full business days thereafter as CSFBC and the Company determine, such
time being herein referred to as the "CLOSING Date," against delivery to the
Trustee as custodian for DTC of the Global Securities representing all of the
Securities. The Global Securities will be made available for checking at the
above office of Xxxxxx & Xxxxxxx at least 24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the
Company that it is an "accredited investor" within the meaning of
Regulation D under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities and the Subsidiary Guarantees 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 the Subsidiary Guarantees, and will offer and
sell the Offered Securities and the Subsidiary Guarantees only in
accordance with Rule 903 or Rule 144A under the Securities Act ("RULE
144A"). Accordingly, neither any Purchaser nor its affiliates, nor any
persons acting on its or their behalf, has engaged or will engage in
any directed selling efforts within the meaning of Rule 902(c) of
Regulation S with respect to the Offered Securities or the Subsidiary
Guarantees, and each Purchaser, its affiliates and all persons acting
on its or their behalf has complied and will comply with the offering
restrictions requirement of Regulation S and Rule 144A.
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
or the Subsidiary Guarantees except for any such arrangements with the
other Purchasers or affiliates of the other Purchasers or with the
prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its
affiliates has not offered and will not offer or sell the Offered
Securities or the Subsidiary Guarantees 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
or the Subsidiary Guarantees, 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 or the
Subsidiary Guarantees has been made in reliance upon the exemption from
the registration requirements of the Securities Act provided by Rule
144A.
(e) 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 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 complied and will comply with all
applicable provisions of the Financial Services Act 1986 with respect
to anything done by it in
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relation to the Offered Securities in, from or otherwise involving the
United Kingdom; and (iii) it has only issued or passed on and will only
issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Offered Securities to a person who is
of a kind described in Article 11(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1996 or is a person to
whom such document may otherwise lawfully be issued or passed on.
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 shall not
be unreasonably withheld. 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 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 any
preliminary offering circular, the Offering Document and all amendments
and supplements to such documents, in each case as soon as available
and in such quantities as CSFBC reasonably requests, and the Company
will furnish to CSFBC on the date hereof three copies of the Offering
Document signed by a duly authorized officer of the Company, one of
which will include the independent accountants' reports therein
manually signed by such independent accountants. At any time when 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 cooperate with the Initial Purchasers and
counsel for the Initial Purchasers in connection with 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.
(d) During the period of five years hereafter, the Company
will furnish to CSFBC (and, upon request, to each of the other
Purchasers) as soon as practicable after the end of each fiscal year, a
copy of its annual report to shareholders for such year; and the
Company will furnish to CSFBC (and, upon request, to each of the other
Purchasers) (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission
under the
9
Exchange Act or mailed to shareholders, and (ii) from time to time,
such other information concerning the Company as CSFBC may reasonably
request.
(e) During the period of two years after the 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.
(f) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined
in Rule 144 under the Securities Act) to, resell any of the Offered
Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the
Company will not be or become, an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company
Act.
(h) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, 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
Exchange Securities, the preparation and printing of this Agreement,
the Registration Rights Agreement, the Offered Securities, the
Indenture, 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) the cost of any advertising approved by the Company in
connection with the issue of the Offered Securities; (v) any expenses
(including reasonable fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities or the Exchange
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; (vi) any fees charged by investment rating agencies
for the rating of the Securities or the Exchange Securities; and (vii)
any expenses incurred in distributing preliminary offering circulars
and the Offering Document (including any amendments and supplements
thereto) to the Purchasers. The Company will also pay or reimburse the
Purchasers (to the extent incurred by them) for all travel expenses of
the Purchasers and the Company's officers and employees and any other
expenses of the Purchasers and the Company in connection with attending
or hosting meetings with prospective purchasers of the Offered
Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have
notified the Company 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.
(j) For a period of 180 days after the date of the initial
offering of the Offered Securities by the Purchasers, the Company will
not offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, any United States dollar-denominated debt
securities (which term is not intended to include bank or similar
financing) issued or guaranteed by the Company and having a maturity of
more than one year from the date of issue, except for the Exchange
Securities. The Company will not at any time offer, sell, contract to
sell, pledge or otherwise dispose of, directly or
10
indirectly, any securities under circumstances where such offer, sale,
pledge, contract or disposition would cause the exemption afforded by
Section 4(2) of the Securities Act or the safe harbor of Regulation S
thereunder to cease to be applicable to the offer and sale of the
Offered Securities.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company and the Guarantors herein, to the accuracy of the statements of officers
of the Company made pursuant to the provisions hereof, to the performance by the
Company and each Guarantor of its obligations hereunder and to the following
additional conditions precedent:
(a) The Purchasers shall have received letters, dated the date
of this Agreement and the Closing Date, each in form and substance
satisfactory to the Purchasers from Ernst & Young LLP, independent
public accountants, containing the information and statements of the
type ordinarily included in accountants' "comfort letters" with respect
to the financial statements and certain financial information contained
in the Offering Document.
(b) The Purchasers shall have received letters, dated the date
of this Agreement and the Closing Date, each in form and substance
satisfactory to the Purchasers from KPMG LLP, independent public
accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" with respect to
the financial statements and certain financial information contained in
the Offering Document.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) 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, or (ii) (A) any
change, or any development or event involving a prospective change, in
the condition (financial or other), business, properties or results of
operations of the Company 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; (B) any downgrading in the
rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act), or any public announcement that
any such organization has under surveillance or review its rating of
any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating) or any announcement that the
Company has been placed on negative outlook; (C) 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; (D) any banking moratorium declared by U.S. Federal or New York
authorities; (E) any major disruption of settlement of securities; or
(F) 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.
(d) The Purchasers shall have received an opinion, dated the
Closing Date, of Xxxxxx, Xxxxxxx & Xxxxxxx L.L.P., counsel for the
Company, to the effect that:
11
(i) Each of the Company and the Guarantors has been
duly incorporated and is an existing corporation in good
standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own its
properties and conduct its business as described in the
Offering Document, and the Company has the requisite corporate
power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement;
(ii) The Indenture has been duly authorized, executed
and delivered by the Company and the Guarantors and
constitutes the valid and legally binding obligations of the
Company and each Guarantor 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. The Indenture conforms in all
material respects to the requirements of the Trust Indenture
Act, and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder;
(iii) The Offered Securities have been duly
authorized, executed, issued and delivered by the Company and
authenticated in accordance with the Indenture and constitute
valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
(iv) The Exchange Securities have been duly
authorized by the Company; and when the Exchange Securities
are executed, issued and authenticated in accordance with the
terms of the Exchange Offer and the Indenture, the Exchange
Securities will be entitled to the benefits of the Indenture
and will be the valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
(v) The Subsidiary Guarantee to be endorsed on the
Offered Securities by each Guarantor has been duly authorized
by such Guarantor, and has been duly executed and delivered by
each such Guarantor. When the Offered Securities have been
executed, issued and authenticated in accordance with the
Indenture and delivered to and paid for by the Purchasers in
accordance with the terms of this Agreement, the Subsidiary
Guarantee of each Guarantor endorsed thereon will constitute
the valid and legally binding obligation of such Guarantor,
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;
(vi) The Subsidiary Guarantee to be endorsed on the
Exchange Securities by each Guarantor has been duly authorized
by such Guarantor. When the Exchange Securities have been
executed, issued and authenticated in accordance with the
terms of the Exchange Offer and the Indenture, the Subsidiary
Guarantee of each Guarantor endorsed thereon will constitute
the valid and legally binding obligation of such Guarantor,
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;
12
(vii) The Offered Securities and the Subsidiary
Guarantees relating to the Offered Securities conform in all
material respects, and, when issued, the Exchange Securities
and the Subsidiary Guarantees relating to the Exchange
Securities will conform in all material respects, to the
applicable description contained in the Offering Document;
(viii) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Offering Document, will not be an "investment company" as
defined in the Investment Company Act;
(ix) 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 Guarantors, except
as securities or Blue Sky laws of the various states may
require;
(x) The execution, delivery and performance of the
Indenture, this Agreement and the Registration Rights
Agreement, and the issuance and sale of the Offered Securities
and compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and
provisions of any statute, rule, or regulation applicable to
the Company or any Guarantor or the charter or by-laws of the
Company or any such Guarantor;
(xi) Such counsel have no reason to believe that the
Offering Circular, or any amendment or supplement thereto, as
of the date hereof and as of the Closing Date, contained any
untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein, in
light of the circumstances under which made, not misleading;
and the statements in the Offering Circular, insofar as they
constitute summaries of legal matters and documents, are fair
and accurate summaries of such matters and documents; it being
understood that such counsel need express no opinion as to the
financial statements or other financial data contained in the
Offering Circular;
(xii) This Agreement has been duly authorized,
executed and delivered by the Company and each Guarantor;
(xiii) The Registration Rights Agreement has been
duly authorized, executed and delivered by the Company and
each of the Guarantors, and is a valid and binding agreement
of the Company and each of the Guarantors, enforceable against
the Company and each Guarantor 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;
(xiv) It is not necessary in connection with (i) the
offer, sale and delivery of the Offered Securities by the
Company to the several Purchasers pursuant to this Agreement
or (ii) the resales of the Offered Securities by the several
Purchasers in the manner contemplated by this Agreement, to
qualify an indenture in respect thereof under the Trust
Indenture Act; and
(xv) No registration under the Securities Act of the
Offered Securities or the Subsidiary Guarantees is required
for the sale of the Offered Securities and the Subsidiary
Guarantees to the Purchasers as contemplated hereby or for the
Exempt
13
Resales to Eligible Purchasers as described in the Offering
Document, assuming the accuracy of the representations and
warranties of the Company and the Guarantors set forth in
Section 2 hereof and the accuracy of the Purchasers'
representations and compliance by the Purchasers with their
agreements set forth in Section 4 hereof.
(e) The Purchasers shall have received from Xxxxxx & Xxxxxxx,
counsel for the Purchasers, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company, the validity of
the Offered Securities, the Offering 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. In rendering such opinion, Xxxxxx & Xxxxxxx may rely as
to all matters governed by Ohio law upon the opinion of Xxxxxx, Xxxxxxx
& Xxxxxxx, L.L.P. referred to above.
(f) The Purchasers shall have received certificates, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of each of the Company and the
Guarantors in which such officers, to the best of their knowledge after
reasonable investigation, shall state, as applicable, that the
representations and warranties of the Company and the Guarantors in
this Agreement are true and correct, that the Company and each of the
Guarantors has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, and that, subsequent to the dates of the
most recent financial statements in the Offering Document there has
been no material adverse change, nor any development or event involving
a prospective material adverse change, in the condition (financial or
other), business, properties or results of 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.
(g) The Purchasers shall have received an opinion, dated as of
the Closing Date, of Xxxxxxx X. Xxxxx, Esq., general counsel for the
Company, to the effect that:
(i) Each of the Company and its subsidiaries is duly
qualified to do business as a foreign corporation in good
standing in all jurisdictions in which its ownership or lease
of property or the conduct of its business requires such
qualification, except to the extent that any failure to so
qualify would not, individually or in the aggregate, have a
Material Adverse Effect;
(ii) There are no pending actions, suits or
proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely
affect the ability of the Company or any Guarantor to perform
its 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 to
such counsel's knowledge, no such actions, suits or
proceedings are threatened or contemplated;
(iii) Neither the Company nor any of its subsidiaries
is in violation of its respective charter or by-laws or in
default in the performance of any obligation, agreement,
covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument
that is material to the Company and its subsidiaries, taken as
a whole, to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or
their respective property is bound;
14
(iv) There are no contracts, agreements or
understandings between the Company or any Guarantor and any
person granting such person the right to require the Company
or such Guarantor to file a registration statement under the
Securities Act with respect to any securities of the Company
or such Guarantor or to require the Company or such Guarantor
to include such securities with the Securities and Subsidiary
Guarantees registered pursuant to any Registration Statement;
(v) The execution, delivery and performance of the
Indenture, this Agreement and the Registration Rights
Agreement, and the issuance and sale of the Offered Securities
and compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any order of any
governmental agency or body or any court having jurisdiction
over the Company or any subsidiary of the Company or any of
their properties, or any 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
properties of the Company or any such subsidiary is subject;
(vi) Except as disclosed in the Offering Circular, to
such counsel's knowledge, neither the Company nor any of its
subsidiaries is in violation of any 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 such counsel is not aware of any
pending investigation which might lead to such a claim.
(vii) To such counsel's knowledge, the Company and
its subsidiaries own, possess or can acquire on reasonable
terms the intellectual property rights necessary to conduct
the business now operated by them, or presently employed by
them, and, to such counsel's knowledge, the Company has 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.
Documents described as being "in the agreed form" are
documents which are in the forms which have been initialled for the
purpose of identification by Xxxxxx & Xxxxxxx, copies of which are held
by the Company and CSFBC, with such changes as CSFBC and the Company
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) The Company and each Guarantor agree, jointly and
severally, to 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
15
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 any related preliminary offering circular or the Exchange
Act Reports, 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
any Guarantor 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; provided, further, that with
respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any Preliminary Offering Circular,
the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Purchaser from whom the person asserting
any such loss, claim, damage or liability purchased the Securities
concerned in any initial resale of the Securities by such Purchaser, to
the extent that any such loss, claim, damage or liability occurs under
the circumstance where it shall have been determined by a court of
competent jurisdiction that (A) the untrue statement or alleged untrue
statement in or omission or alleged omission from the Preliminary
Offering Circular was corrected in the Offering Circular, (B) the
Purchasers received the requisite quantity of Offering Circulars and on
a timely basis to permit proper delivery of such Offering Circulars on
or prior to the Closing Date and (C) the person asserting such loss,
claim, damage or liability was not sent or given a copy of the Offering
Circular at or prior to the written confirmation of the sale of such
Securities.
(b) Each Purchaser will severally and not jointly indemnify
and hold harmless the Company and the Guarantors, and their respective
directors and officers and each person, if any, who controls the
Company or any Guarantor 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 any related preliminary
offering circular, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by 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 the following information in the Offering
Document furnished on behalf of each Purchaser: under the caption "Plan
of Distribution," the third paragraph, the third sentence of the ninth
paragraph and the twelfth paragraph; 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.
16
(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 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 an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action and 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 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 discounts, fees and commissions received by
such Purchaser 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.
17
(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 or any of the Guarantors
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 and the aggregate
principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, CSFBC may make arrangements satisfactory
to the Company for the purchase of such Offered Securities by other persons,
including any of the Purchasers, but if no such arrangements are made by the
Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to CSFBC and the Company for the purchase of such Offered Securities by other
persons are not made within 48 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Purchaser, the
Company or any Guarantor, except as provided in Section 9. As used in this
Agreement, the term "Purchaser" includes any person substituted for a Purchaser
under this Section. Nothing herein will relieve a defaulting Purchaser from
liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, the Guarantors or their respective officers and of the several
Purchasers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Purchaser, the Company or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If
this Agreement is terminated pursuant to Section 8 or if for any reason the
purchase of the Offered Securities by the Purchasers is not consummated, the
Company 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. 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 (C), (D), (E) or (F) of Section 6(c)(ii), the Company 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.
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, Xxxxxx Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Investment Banking
Department--Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at OM Group, Inc., 00
Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000, Attention: General Counsel;
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
18
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.
15. Each of the Company and 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.
[SIGNATURE PAGES FOLLOW]
19
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
OM GROUP, INC.
By
------------------------------------
Name:
Title:
OMG AMERICAS, INC.
OMG FIDELITY, INC.
OMG XXXX, INC.
SCM METAL PRODUCTS, INC.
OM HOLDINGS, INC.
OMG KG HOLDINGS, INC.
OMG NEW JERSEY, INC.
OMG MICHIGAN, INC.
DMC2 ELECTRONIC COMPONENTS CORPORATION
As the Guarantors
By
------------------------------------
Name:
Title:
S-1
Purchase Agreement
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
ABN AMRO INCORPORATED
XXXXXX BROTHERS INC.
BANC ONE CAPITAL MARKETS, INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
NATCITY INVESTMENTS, INC.
BARCLAYS CAPITAL INC.
SCOTIA CAPITAL (USA) INC.
Acting on behalf of themselves
and as the Representatives of
the several Purchasers
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
-----------------------------
Name:
Title:
S-2
Purchase Agreement
SCHEDULE A
PRINCIPAL AMOUNT OF
MANAGER OFFERED SECURITIES
------- ------------------
Credit Suisse First Boston Corporation.............. $250,260,000
ABN AMRO Incorporated............................... $38,800,000
Xxxxxx Brothers Inc. ............................... $38,800,000
Banc One Capital Markets, Inc. ..................... $21,340,000
Credit Lyonnais Securities (USA) Inc. .............. $15,520,000
NatCity Investments, Inc. .......................... $12,000,000
Barclays Capital Inc................................ $11,640,000
Scotia Capital (USA) Inc. .......................... $11,640,000
-----------
Total..................... $400,000,000
SCHEDULE B
1. OMG Americas, Inc.
2. OMG Fidelity, Inc.
3. OMG Xxxx, Inc.
4. SCM Metal Products, Inc.
5. OM Holdings, Inc.
6. OMG KG Holdings, Inc.
7. OMG New Jersey, Inc.
8. OMG Michigan, Inc.
9. dmc2 Electronic Components Corporation
SCHEDULE C
1. Fidelity Chemical Products Malaysia SDN.BHD
2. OM Holdings, Inc.
3. OMG Americas, Inc.
4. OMG Asia-Pacific Co., Ltd.
5. OMG Belleville, Limited
6. OMG Europe GmbH
7. OMG Fidelity, Inc.
8. OMG Finland Oy
9. OMG Harjavalta Chemicals Holdings BV
10. OMG Harjavalta Nickel Oy
11. OMG Japan, Inc.
12. OMG Xxxx, Inc.
13. OMG Kokkola Chemicals Holding BV
14. OMG Kokkola Chemicals Oy
15. OMG Singapore Pte, Ltd.
16. OMG Thailand Co., Ltd.
17. OMG Vasset, S.A.
18. SCM Metal Products, Inc.
19. Harko CV
20. Groupement Pour Le Traitement Du teril De Lubumbashi
21. Societe De Traitement du Xxxxxx De Lubumbashi
22. OMG AG & Co. KG
23. OMG Management AG
24. Allgemeine Gold- und Silberscheideanstalt AG ("Agosi")
25. Degussa Galvanotechnik GmbH
26. Schone Edelmetaal B.V.
27. Ogussa Osterreichische Gold- und Silberscheideanstalt Gesellschaft
m.b.H.
28. OMG UK Limited
29. Allgemeine France S.A.R.L.
30. Prometron GmbH Produkte fur Elektronik und Elektrotechnik
31. Degussa-NA-Edelmetall GmbH
32. BrazeTec GmbH
33. Cycleon S.A.
34. OMG Brasil Ltda.
35. OMG Argentina S.A.
36. Clarex S.A.
37. Coimpa Sociedade Industrial de Metais Preciosos da Amazonia Ltda.
38. Icomeq Industria e Comercio Ltda.
39. OMG Automotive Catalysts Skandinavia AB
40. OMG Automotive Catalysts (Pty) Ltd.
41. DMC Catalyst Port Elisabeth (Pty) Ltd.
42. OMG Marketing South Africa (Pty) Ltd.
43. OMG Automotive Catalyst (Thailand) Ltd.
44. Ordeg Co., Ltd.
45. OMG China Limited
46. International Catalyst Technology, Inc.
47. ICT Co., Inc.
48. OMG Precious Metals Singapore Ltd.
49. Italbras S.p.A.
50. dmc2 Electronic Components Corporation
51. OMG Michigan Inc.
52. OMG Catalysts Canada Corp.
53. 1354950 Ontario Inc.
54. OMG New Jersey, Inc.
55. OMG New Jersey L.P.
56. OMG KG Holdings, Inc.
57. OMG Acquisition Holdings, Inc.
58. OMG Acquisition Holdings II, Inc.
59. 2005207 Ontario Limited
60. OMG Export Ltd. Barbados
61. OMG Micobond Pte Ltd Singapore
62. OMG Swedish Holding AB
63. OMG Italian Holding S.r.l.
64. Oy Baltic Merchants AB
EXHIBIT I
[FORM OF REGISTRATION RIGHTS AGREEMENT]
