EXHIBIT 1.1
EXECUTION COPY
$205,000,000
9.625% SENIOR NOTES DUE 2012
MDP ACQUISITIONS PLC
AND
MDCP ACQUISITIONS I, AS GUARANTOR
PURCHASE AGREEMENT
February 11, 2003
Deutsche Bank AG London
Winchester House
0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx Xxxxx International
Xxxxxxx Xxxxx Financial Centre
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Ladies and Gentlemen:
MDP Acquisitions plc, a public limited company formed under the laws of
Ireland (the "COMPANY"), proposes to issue and sell to Deutsche Bank AG London
("DEUTSCHE BANK") and Xxxxxxx Xxxxx International ("XXXXXXX XXXXX") (together
the "INITIAL PURCHASERS") $205,000,000 in aggregate principal amount of its
9.625% Senior Notes due 2012 (the "NOTES"). The Notes will be issued pursuant to
the provisions of an indenture dated as of September 30, 2002 (the "ORIGINAL
INDENTURE") among the Company, MDCP Acquisitions I, a public unlimited company
formed under the laws of Ireland (the "GUARANTOR") and Deutsche Bank Trust
Company Americas, as trustee (the "TRUSTEE") and will be fully and
unconditionally guaranteed (the "GUARANTEE") on a senior subordinated basis by
the Guarantor. The Original Indenture will be amended pursuant to a supplemental
indenture dated February 14, 2003, among the Company,
the Guarantor and the Trustee (the "INDENTURE AMENDMENT"; together with the
Original Indenture, the "INDENTURE"). The Notes will be deposited with Deutsche
Bank Trust Company Americas, acting in its capacity as depositary (the
"BOOK-ENTRY DEPOSITARY") under the Deposit and Custody Agreement, dated as of
September 30, 2002 (the "DEPOSIT AND CUSTODY AGREEMENT"), between the Company
and the Book-Entry Depositary. The Notes and the Guarantee are collectively
referred to herein as the "SECURITIES."
The offering of the Securities is being made in connection with the
letter of intent dated as of January 27, 2003 (the "LETTER OF INTENT"), pursuant
to which it is contemplated that Jefferson Smurfit Group Limited ("JSG") would
agree to purchase substantially all of the assets that currently comprise the
European operations of Smurfit-Stone Container Corporation ("SSCC") in exchange
for JSG's 50% ownership interest in Smurfit-MBI and a cash payment of
approximately EURO 185 million (the "SSCC ASSET SWAP").
The sale of the Securities to the Initial Purchasers will be made without
registration of the Securities under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), in reliance upon an exemption therefrom.
In connection with the sale of the Securities, the Company has prepared
an offering memorandum dated on or about the date hereof (the "OFFERING
MEMORANDUM"), for the information of the Initial Purchasers and for delivery to
purchasers of the Securities by the Initial Purchasers. Any references herein to
the Offering Memorandum shall be deemed to include all amendments and
supplements thereto.
The Initial Purchasers and their direct and indirect transferees will be
entitled to the benefits of a registration rights agreement with respect to the
Notes (the "REGISTRATION RIGHTS AGREEMENT"), to be dated as of the Closing Date
(as defined herein) and to be substantially in the form attached hereto as
Exhibit A, pursuant to which the Company and the Guarantor will file one or more
registration statements with the Commission, registering with the Commission the
Company's 9.625% Senior Notes due 2012 with terms substantially identical to
those of the Notes (the "EXCHANGE NOTES") to be offered in exchange for the
Notes, including a guarantee substantially identical to that of the Guarantee
(the "EXCHANGE GUARANTEE").
The Company and the Guarantor agree with the Initial Purchasers as
follows:
1. The Company agrees to issue and sell the Securities to the Initial
Purchasers as hereinafter provided, and each Initial Purchaser, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
the aggregate principal amount of Notes from the Company as set forth opposite
such Initial Purchaser's name in Schedule I hereto at a price (the "PURCHASE
PRICE") equal to 102.0% of the principal amount of the Notes plus accrued
interest, if any, from September 30, 2002 to the date of payment and delivery.
Concurrently with this purchase, the Guarantor agrees to pay to the Initial
Purchasers, in U.S. dollars, 2.25% of the gross proceeds of the offering of the
Securities (the "INITIAL PURCHASERS' COMMISSION") (each Initial Purchaser to
receive a proportion of the Initial Purchasers' Commission equal to the
proportions set forth in Schedule I hereto).
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2. The Company and the Guarantor understand that the Initial
Purchasers intend (i) to offer the Securities to "qualified institutional
buyers" within the meaning of Rule 144A under the Securities Act, and to also
offer the Securities pursuant to Regulation S under the Securities Act
("REGULATION S"), (ii) initially to offer the Securities upon the terms set
forth in this Agreement and in the Offering Memorandum, and (iii) to offer the
Securities only to holders of the Company's existing 9.625% senior notes due
2012, issued on September 30, 2002 (the "EXISTING NOTES").
The Company and the Guarantor confirm that they have authorized the
Initial Purchasers, subject to the restrictions set forth below, to distribute
copies of the Offering Memorandum in connection with the delivery of the
Securities. Each Initial Purchaser hereby makes to the Company and the Guarantor
the following representations and agreements:
(i) it is a "qualified institutional buyer" within the meaning of Rule
144A under the Securities Act; and
(ii) (A) it will not solicit offers for, or offer to sell, the
Securities by any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Securities Act ("REGULATION D")) or in
any manner involving a public offering within the meaning of Section 4(2) of the
Securities Act and (B) it will solicit offers for the Securities only from, and
will offer the Securities only to, persons whom it reasonably believes to be,
(x) in the case of offers of the Securities inside the United States, "qualified
institutional buyers" within the meaning of Rule 144A under the Securities Act,
and (y) in the case of offers of the Securities outside the United States,
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)) that, in each case, in purchasing the Securities are deemed to have
represented and agreed as provided in the Offering Memorandum. Notwithstanding
anything in this paragraph to the contrary, the Initial Purchasers will solicit
offers for the Securities from, and will offer the Securities only to, holders
of the Existing Notes.
With respect to offers and sales outside the United States, as described in
clause (ii)(B)(y) above, each Initial Purchaser hereby represents and agrees
with the Company and the Guarantor that:
(i) it understands that no action has been or will be taken by the
Company or the Guarantor that would permit a public offering of the Securities,
or possession or distribution of the Offering Memorandum or any other offering
or publicity material relating to the Securities, in any country or jurisdiction
where action for that purpose is required;
(ii) it will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Securities or has
in its possession or distributes the Offering Memorandum or any such other
material, in all cases at its own expense;
(iii) the Securities offered and sold by such Initial Purchaser pursuant
hereto in reliance on Regulation S have been and will be offered and sold only
in offshore transactions;
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(iv) the sale of the Securities offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S is not part of a plan or
scheme to evade the registration provisions of the Securities Act;
(v) it understands that the Securities have not been and will not be
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 under the Securities Act or pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act;
(vi) it has not offered the Securities and will not offer and sell the
Securities (a) as part of its distribution at any time and (b) otherwise prior
to 40 days after the later of the commencement of the offering and the Closing
Date, in either case except in accordance with Rule 903 of Regulation S (or Rule
144A, if available). Accordingly, neither such Initial Purchaser, nor any of its
affiliates, nor any persons acting on its behalf has engaged or will engage in
any directed selling efforts (within the meaning of Regulation S) with respect
to the Securities, and such Initial Purchaser, its affiliates and any such
persons have complied and will comply with the offering restrictions requirement
of Regulation S; and
(vii) it agrees that, at or prior to confirmation of sales of the
Securities, it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Securities from it
during the restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered
under the U.S. Securities Act of 1933, as amended (the
'Securities Act'), and may not be offered and sold
within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise prior to 40
days after the closing of the offering, except in either
case in accordance with Regulation S (or Rule 144A, if
available) under the Securities Act. Terms used above
have the meaning given to them by Regulation S."
Terms used in this Section 2 and not otherwise defined in this Agreement have
the meanings given to them by Regulation S.
Each Initial Purchaser hereby makes to the Company and the Guarantor the
following additional representations and agreements:
(i) it has not offered or sold and will not offer or sell the
Securities in the United Kingdom prior to the admission of the Securities to
listing in accordance with Part IV of the Financial Services and Markets Act
2000 (the "FSMA") 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 or the
FSMA;
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(ii) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the FSMA)
received by it in connection with the issue or sale of the Securities in
circumstances in which Section 21(1) of the FSMA does not apply to the Company
or the Guarantor;
(iii) it has complied and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to the Securities in,
from or otherwise involving the United Kingdom; and
(iv) otherwise than in circumstances which do not constitute an offer
to the public within the meaning of the Companies Acts 1963 to 2001, (A) it will
not anywhere in the world (x) offer to sell any Securities by means of any
document other than the Offering Memorandum or (y) issue any application for
Securities; (B) it will not make in Ireland a public offer of Securities to
which the European Communities (Transferable Securities and Stock Exchange)
Regulations, 1992 would apply, except by means of the Offering Memorandum or
otherwise in accordance with the provisions of those regulations; and (C) it has
complied and will comply with all applicable provisions of the Investment
Intermediaries Act, 1995 with respect to anything done or to be done by it in
relation to the Securities in, from or otherwise involving Ireland.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to a dollar account, as specified by the Company to
Deutsche Bank and Xxxxxxx Xxxxx, as the Initial Purchasers, on February 14,
2003, or at such other time on the same or such other date, not later than the
tenth Business Day thereafter, as the Initial Purchasers and the Company may
agree upon in writing. The time and date of such payment are referred to herein
as the "CLOSING DATE." As used herein, the term "BUSINESS DAY" means any day
other than a day on which banks are permitted or required to be closed in New
York City.
Payment for the Securities shall be made against delivery to the nominee
of The Depository Trust Company ("DTC") for the respective accounts of the
Initial Purchasers of certificateless depositary interests representing one or
more global notes (collectively, the "GLOBAL NOTE") representing the Notes. The
Global Note will be made available for inspection by the Initial Purchasers at
the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, CityPoint, One Xxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxxx, 1:00 pm (London time), on the Business Day prior to
the Closing Date.
4. The Company and the Guarantor, jointly and severally, represent
and warrant to each Initial Purchaser that:
(a) the Offering Memorandum will not, in the form used by the Initial
Purchasers to confirm sales of the Securities and as of the Closing Date,
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED, HOWEVER,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information relating to
any Initial Purchaser furnished to the Company in writing by such Initial
Purchaser expressly for use therein;
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(b) since the date as of which information is given in the Offering
Memorandum, there has not been any material adverse change, or any development
which would reasonably be expected to result in a material adverse change, in or
affecting the business, senior management, financial position, shareholders'
equity, results of operations or prospects of the Company and its subsidiaries,
taken as a whole (a "MATERIAL ADVERSE EFFECT"), otherwise than as disclosed in
the Offering Memorandum;
(c) the statistical and market-related data included in the Offering
Memorandum are based on or derived from sources (including those described in
the Offering Memorandum under the heading "Market, Ranking and Other Data")
which the Company and the Guarantor believe to be reliable and accurate in all
material respects;
(d) each of the Company and the Guarantor has been duly incorporated
or organized, as the case may be, and is validly existing as a public limited
company, in the case of the Company, and a public unlimited company, in the case
of the Guarantor, under the laws of Ireland, with power and authority to own its
properties and conduct its business as described in the Offering Memorandum, and
has been duly qualified as a foreign company for the transaction of business
and, if applicable, is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business,
other than where the failure to be so qualified or in good standing would not,
singly or in the aggregate, reasonably be expected to have a Material Adverse
Effect;
(e) each of the Company's subsidiaries has been duly incorporated or
organized, as the case may be, and is validly existing under the laws of its
jurisdiction of organization, with power and authority (corporate and other) to
own its properties and conduct its business as described in the Offering
Memorandum, and has been duly qualified as a foreign corporation for the
transaction of business and is, if applicable, in good standing under the laws
of each other jurisdiction in which it owns or leases properties or conducts any
business, so as to require such qualification, other than where the failure to
be so qualified or in good standing would not reasonably be expected to have a
Material Adverse Effect;
(f) JSG's consolidated capitalization at September 30, 2002, after
giving effect to the completion of the JSG Acquisition (as defined in the
Offering Memorandum), is as set forth in the Offering Memorandum under the
heading "Capitalization"; the outstanding share capital of the Company has been
duly authorized and is validly issued, fully paid and non-assessable; the
corporate organizational charts set forth as Exhibit F hereto (the "CORPORATE
CHART") accurately reflect the organizational structure of the Company as of the
date hereof; and the outstanding share capital held by the Company and its
subsidiaries as set forth in the Corporate Chart in each case is duly
authorized, validly issued, fully-paid and non-assessable, and (except for any
directors' qualifying shares and except as noted in the Offering Memorandum) is
owned by the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims other than liens, encumbrances,
security interests and claims created pursuant to that certain bank credit
facility agreement, dated September 12, 2002, among the Guarantor, the Company,
various lenders named therein, Deutsche Bank and Xxxxxxx Xxxxx (the "SENIOR
CREDIT FACILITY AGREEMENT"; together with all other Senior Finance Documents, as
defined in the Senior Credit Facility Agreement, the "SENIOR BANK FINANCING") or
pursuant to the indebtedness
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disclosed in the Offering Memorandum under the caption "Description of Certain
Indebtedness - Other Indebtedness";
(g) this Agreement has been duly authorized, executed and delivered by
the Company and the Guarantor;
(h) the Notes have been duly authorized by the Company and, when
issued and delivered pursuant to this Agreement and authenticated by the Trustee
in accordance with the Indenture and payment therefor is received, will be duly
executed, authenticated, issued and delivered and will constitute valid and
binding obligations of the Company entitled to the benefits provided by the
Indenture, enforceable against the Company in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, examinership,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; the Original Indenture has
been, and as of the Closing Date the Indenture Amendment will be, duly
authorized, executed and delivered by the Company and the Guarantor (assuming
due execution and delivery by the Trustee), the Original Indenture constitutes,
and as of the Closing Date the Indenture Amendment will constitute, a valid and
binding instrument of the Company and the Guarantor, enforceable against the
Company and the Guarantor in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, examinership, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles; the Notes will conform in all material respects to
the description thereof in the Offering Memorandum; the Indenture conforms in
all material respects to the descriptions thereof in the Offering Memorandum;
and the Indenture conforms in all material respects to the requirements of the
Trust Indenture Act of 1939, as amended (the "1939 ACT") and the rules and
regulations of the Commission applicable to an Indenture which is qualified
thereunder;
(i) the Guarantee has been duly authorized by the Guarantor and, when
issued and delivered as contemplated by this Agreement and the Indenture, will
be duly executed, issued and delivered and will constitute a valid and binding
obligation of the Guarantor entitled to the benefits provided by the Indenture,
enforceable against the Guarantor in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, examinership, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles; and the Guarantee will conform in all material
respects to the descriptions thereof in the Offering Memorandum;
(j) the unissued Exchange Notes have been duly authorized by the
Company and, if and when duly issued and authenticated in accordance with the
terms of the Indenture and, assuming due authentication of the Exchange Notes by
the Trustee, upon delivery in accordance with the exchange offer provided for in
the Registration Rights Agreement, will be duly executed, authenticated, issued
and delivered and will constitute valid and binding obligations of the Company
entitled to the benefits provided by the Indenture, enforceable against the
Company in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, examinership, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and the Exchange Notes will conform in all material respects to the
descriptions thereof in the Offering Memorandum;
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(k) the unissued Exchange Guarantee has been duly authorized by the
Guarantor and, if and when, issued and delivered in accordance with the terms of
the Registration Rights Agreement and the Indenture, will be duly executed,
issued and delivered and will constitute a valid and binding obligation of the
Guarantor entitled to the benefits provided by the Indenture, enforceable
against the Guarantor in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, examinership, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles; and the Exchange Guarantee will conform in all material
respects to the descriptions thereof in the Offering Memorandum;
(l) the Registration Rights Agreement has been duly authorized by the
Company and the Guarantor and, when duly executed and delivered by the Company
and the Guarantor (assuming due execution and delivery by the Initial
Purchasers), will constitute a valid and binding agreement of the Company and
the Guarantor, enforceable against the Company and the Guarantor in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
examinership, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles, except that the
enforceability of any indemnification or contribution provisions thereof may be
limited under applicable securities laws or the public policies underlying such
laws; and the Registration Rights Agreement will conform in all material
respects to the descriptions thereof in the Offering Memorandum;
(m) the Deposit and Custody Agreement has been duly authorized,
executed and delivered by the Company (assuming due execution and delivery by
the Book-Entry Depositaries), and constitutes a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, examinership,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Deposit and Custody
Agreement conforms in all material respects to the descriptions thereof in the
Offering Memorandum;
(n) neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its memorandum and articles of association (or the equivalent) or
by-laws (or the equivalent) or any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them or any of their respective
properties is bound, except, in the case of any indenture, mortgage, deed of
trust, loan agreement or other agreement, for violations and defaults which
would not have a Material Adverse Effect;
(o) the execution and delivery of this Agreement, the Registration
Rights Agreement, the Notes, the performance by the Company and the Guarantor of
their respective obligations hereunder and thereunder and the consummation of
the transactions contemplated hereby and thereby will not (i) violate the
memorandum and articles of association (or the equivalent) or bylaws (or the
equivalent) of the Company, the Guarantor, or JSG (ii) constitute a violation by
the Company, the Guarantor or JSG of any applicable provision of any law,
statute or regulation, except for violations which would not have a Material
Adverse Effect, or (iii) breach, or result in a default under any agreement
known to the executive officers of the Company, the Guarantor or JSG to be
material to the Company and its subsidiaries taken as a whole, except for
conflicts or breaches which would not have a Material Adverse Effect, and no
consent, approval,
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authorization, order, license, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of the
Securities, except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications (i) as have been obtained or (ii) as may be
required under (A) state securities or blue sky laws in connection with the
purchase and distribution of the Securities by the Initial Purchasers, (B) the
Securities Act with respect to the registration of the Exchange Notes pursuant
to the terms of the Registration Rights Agreement or (C) the 1939 Act, with
respect to the registration of the Exchange Notes pursuant to the terms of the
Registration Rights Agreement or (iii) the failure to obtain of which would not
have a Material Adverse Effect;
(p) the fair saleable value of the consolidated assets of the Company
exceeds the amount that will be required to be paid on or in respect of the
existing debts and other liabilities (including contingent liabilities) of the
Company as they mature; the consolidated assets of the Company and its
subsidiaries do not, and upon consummation of the SSCC Asset Swap will not,
constitute unreasonably small capital to carry out their respective businesses
as conducted or as proposed to be conducted, including the capital needs of the
Company and its subsidiaries, and projected capital requirements of the business
conducted by the Company and each of its subsidiaries, and projected capital
requirements and capital availability thereof; the Company does not intend to,
and does not believe that it will, incur debts beyond its ability to pay such
debts as they mature; upon the consummation of the SSCC Asset Swap, the fair
saleable value of the assets of the Company and its subsidiaries taken as a
whole will exceed the amount that will be required to be paid on or in respect
of the existing debts and other liabilities (including contingent liabilities)
of the Company and its subsidiaries, taken as a whole, as they mature; and the
Company does not intend to, and does not intend to permit any of its
subsidiaries to, incur debts beyond their respective ability to pay such debts
as they mature;
(q) other than as disclosed in the Offering Memorandum, there are no
legal or governmental investigations of which the Company has received notice or
proceedings pending against or affecting the Company or any of its subsidiaries
or any of their respective properties which, individually or in the aggregate,
if determined adversely to the Company or any of its subsidiaries, would
reasonably be expected to have a Material Adverse Effect; and, to the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(r) other than as disclosed in the Offering Memorandum, there are no
court and administrative orders, writs, judgments and decrees specifically
directed to the Company or any of its subsidiaries and known to the Company's
executive officers to be material to the Company and its subsidiaries taken as a
whole;
(s) other than as disclosed in the Offering Memorandum, the Company
and its subsidiaries have good and marketable title to all real property and
good and marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as are
described or referred to in the Offering Memorandum or such as would not have a
Material Adverse Effect; and any real property and buildings held under lease or
cutting rights by the Company and its subsidiaries are held by them under valid,
existing and enforceable leases or other agreements with such exceptions as
would not have a Material Adverse Effect;
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(t) each of the Company and its subsidiaries owns, possesses or has
obtained all licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary to own or lease, as the case may be,
and to operate its properties and to carry on its business as conducted as of
the date hereof and as of the Closing Date in each case except as disclosed in
the Offering Memorandum and except where such failure to own, possess or obtain
necessary licenses, permits, certificates, consents, orders, approvals or
authorizations or failure to make necessary declarations and filings would not,
singly or in the aggregate, have a Material Adverse Effect, and neither the
Company nor any such subsidiary has received any actual notice of any proceeding
relating to revocation or modification of any such license, permit, certificate,
consent, order, approval or other authorization, except as described in the
Offering Memorandum and except as would not have a Material Adverse Effect; and
each of the Company and its subsidiaries is in compliance with all laws and
regulations (other than Environmental Laws (as defined herein)) relating to the
conduct of its business, except where the failure to comply would not have a
Material Adverse Effect;
(u) the Company and its subsidiaries (i) are in compliance with any
and all applicable European Union, national, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except as disclosed in the
Offering Memorandum or except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a Material Adverse Effect;
(v) in the ordinary course of its business, the Company and its
subsidiaries conduct a periodic review of the effect of Environmental Laws on
the business, operations and properties of JSG and its subsidiaries, in the
course of which it identifies and evaluates associated costs and liabilities; on
the basis of such review, the Company has reasonably concluded that, except as
disclosed in the Offering Memorandum, such associated costs and liabilities
would not, singly or in the aggregate, have a Material Adverse Effect;
(w) the Company and its subsidiaries have insurance covering their
respective properties, operations, personnel and businesses, including business
interruption insurance, which insurance is in amounts and insures against such
losses and risks as the Company's management reasonably believes are adequate to
protect the Company and its subsidiaries and their respective businesses, with
such exceptions as would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has (i) received notice from any insurer or
agent of such insurer that capital improvements or other expenditures are
required or necessary to be made in order to continue such insurance or (ii) any
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage at
reasonable cost from similar insurers as may be necessary to continue its
business;
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(x) except as disclosed in the Offering Memorandum, no subsidiary of
the Company is prohibited, directly or indirectly, under any agreement or other
instrument to which it is a party or is subject, from paying any dividends, from
making any other distribution on such subsidiary's capital stock, from repaying
any intercompany loans or advances or from transferring any of such subsidiary's
properties or assets to the Company or any other subsidiary of the Company;
(y) when the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the meaning of
Rule 144A under the Securities Act) as any securities that are listed on a
national securities exchange registered under Section 6 of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") or quoted in a U.S.
automated inter-dealer quotation system;
(z) neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D) of the Company has directly, or through any agent, sold,
offered for sale, solicited offers to buy or otherwise negotiated in respect of,
any security which is or will be integrated with the sale of the Securities in a
manner that would require the registration under the Securities Act of the
offering and sale of the Securities;
(aa) each of the Company and the Guarantor is a "foreign private
issuer" (as such term is defined in the rules and regulations under the
Securities Act and the Exchange Act);
(bb) there is no "substantial U.S. market interest" as defined in Rule
902(j) of Regulation S in any of the Company's or the Guarantor's respective
debt or equity securities;
(cc) none of the Company, the Guarantor, any affiliate of either the
Company or the Guarantor or any person acting on its or their behalf (other than
the Initial Purchasers, as to whom the Company or the Guarantor make no
representation) has offered or sold any Securities by means of any general
solicitation or general advertising within the meaning of Rule 502(c) under the
Securities Act or, with respect to Securities sold outside the United States to
non-U.S. persons (as defined in Rule 902 under the Securities Act), by means of
any directed selling efforts within the meaning of Rule 902 under the Securities
Act and the Company, any affiliate of the Company and any person acting on its
or their behalf has complied with and will implement the "offering restrictions"
requirements of Regulation S;
(dd) the Securities offered and sold in reliance on Regulation S have
been and will be offered and sold only in offshore transactions;
(ee) prior to the date hereof, neither the Company nor any of its
affiliates has taken any action which is designed to or which has constituted or
which might have been expected to cause or result in stabilization or
manipulation of the price of any security of the Company in connection with the
offering of the Securities;
(ff) none of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of the
Securities) will violate or result in a violation of Section 7 of the Exchange
Act, or any regulation promulgated thereunder, including, without limitation,
Regulations T, U, and X of the Board of Governors of the Federal Reserve System;
11
(gg) Ernst & Young, Dublin are independent certified public accountants
with respect to the Company and with respect to JSG and its subsidiaries within
the meaning of Rule 101 of the Code of Professional Conduct of the American
Institute of Certified Public Accountants ("AICPA") and its interpretations and
rulings thereunder; the historical financial statements (including the related
notes) included in the Offering Memorandum comply in all material respects with
the requirements applicable to a registration statement on Form F-1 under the
Securities Act; such financial statements and related notes have been prepared
in accordance with generally accepted accounting principles in Ireland
consistently applied throughout the periods covered thereby and fairly present
the financial position of the entities purported to be covered thereby at the
respective dates indicated and the results of their operations and their cash
flows for the respective periods indicated; the financial data contained in the
Offering Memorandum under the headings "Summary," "Capitalization," "Selected
Historical Financial Data," "Management's Discussion and Analysis of Financial
Condition and Results of Operations," "Business" and "Unaudited Pro Forma
Financial Statements" fairly present the information purported to be shown
thereby on a basis consistent with that of the audited and unaudited financial
statements contained in the Offering Memorandum; the PRO FORMA financial
information contained in the Offering Memorandum has been prepared on a basis
consistent with the historical financial statements contained in the Offering
Memorandum (except for the PRO FORMA adjustments specified therein), includes
all material adjustments to the historical financial information required by
Rule 11-02 of Regulation S-X under the Securities Act and the Exchange Act
("REGULATION S-X") to reflect the JSG Acquisition and the issuance and sale of
the Securities, gives effect to assumptions made on a reasonable basis and
fairly presents the JSG Acquisition; and, under Rule 11-01 of Regulation S-X,
the SSCC Asset Swap is not required to be included in the PRO FORMA financial
information;
(hh) with respect to the SSCC Asset Swap, the due diligence reports
listed on Schedule II hereto and provided to the Initial Purchasers by the
advisers to the Company are true and complete copies of such reports, no adviser
has amended, modified, withdrawn or qualified its report in any way since
delivery of the report in the form provided to the Initial Purchasers (except
for such amendments, modifications, withdrawals or qualifications that the
Company or the Guarantor is aware of and which the Initial Purchasers and their
counsel have received actual notice of), and the Initial Purchasers are entitled
to rely on such reports;
(ii) none of the Company or any of its subsidiaries is, or after giving
effect to the offering and sale of the Securities and the application of the
proceeds therefrom as described in the Offering Memorandum will be, an
"investment company" or an entity "controlled" by an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT");
(jj) assuming the accuracy of the representations of the Initial
Purchasers contained in Section 2 hereof, it is not necessary in connection with
the offer, sale and delivery of the Securities in the manner contemplated by
this Agreement and the Offering Memorandum to register the Securities under the
Securities Act or to qualify the Indenture or the Exchange Indenture under the
1939 Act;
(kk) no stamp or other issuance or transfer taxes or duties,
value-added tax, documentary tax, registration tax and no withholding or other
taxes are payable by or on behalf
12
of the Initial Purchasers in connection with (a) the issuance of Securities, (b)
the sale, transfer and delivery of the Securities to the Initial Purchasers
pursuant to this Agreement or for the resale of the Securities placed by or at
the direction of the Initial Purchasers or (c) the execution and delivery of
this Agreement, the Registration Rights Agreement or the consummation of any of
the transactions contemplated hereby or thereby;
(ll) under the laws of Ireland, the submission by the Company and the
Guarantor to the jurisdiction of any United States federal or state court
sitting in the State of New York and the designation of the law of the State of
New York to apply to this Agreement, the Registration Rights Agreement, the
Deposit and Custody Agreement and the Indenture are valid and binding upon the
Company and the Guarantor and would be recognized and enforceable against the
Company and the Guarantor in Ireland; and
(mm) the form of certificates for the Securities to be sold pursuant to
this Agreement conforms to the corporate law of Ireland.
5. The Company and the Guarantor, jointly and severally, covenant and
agree with each of the several Initial Purchasers as follows:
(a) to deliver to the Initial Purchasers as many copies of the
Offering Memorandum (including all amendments and supplements thereto) as the
Initial Purchasers or their counsel may reasonably request;
(b) before distributing any amendment or supplement to the Offering
Memorandum, to furnish to the Initial Purchasers a copy of the proposed
amendment or supplement for review and not to distribute any such proposed
amendment or supplement to which the Initial Purchasers or their counsel
reasonably object;
(c) if, at any time prior to the expiration of nine months after the
date of the Offering Memorandum, any event shall occur as a result of which it
is necessary in the reasonable opinion of counsel to the Initial Purchasers to
amend or supplement the Offering Memorandum in order to make the statements
contained therein, in the light of the circumstances when such Offering
Memorandum is delivered, not misleading, or if in the reasonable opinion of
counsel to the Initial Purchasers it is necessary to amend or supplement the
Offering Memorandum to comply with law, forthwith to prepare and furnish, at the
expense of the Company and the Guarantor, to the Initial Purchasers and to the
dealers (whose names and addresses the Initial Purchasers will furnish to the
Company and the Guarantor) to which Securities may have been sold by the Initial
Purchasers and to any other dealers upon request, such reasonable number of
amendments or supplements to the Offering Memorandum as may be necessary so that
the statements in the Offering Memorandum as so amended or supplemented will
not, in light of the circumstances when the Offering Memorandum is delivered, be
misleading or so that the Offering Memorandum will comply with law;
(d) to cooperate with the Initial Purchasers and their counsel in
connection with the qualification of the Securities for offer and sale under the
state securities or blue sky laws of such jurisdictions as the Initial
Purchasers shall reasonably request and to comply with such laws and to continue
such qualification in effect so long as reasonably required for distribution of
the
13
Securities; PROVIDED that neither the Company nor the Guarantor shall be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(e) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of their obligations hereunder,
including all fees, costs and expenses incidental to (i) the preparation,
issuance, execution, authentication and delivery of the Securities, including
any expenses of the Trustee, any registrar or co-registrar, paying agent or
transfer agent (including related fees and expenses of any counsel to such
parties), (ii) the preparation, printing and distribution of the Offering
Memorandum (including all exhibits, amendments and supplements thereto), (iii)
the registration or qualification and determination of eligibility for
investment of the Securities under the laws of such jurisdictions as the Initial
Purchasers may reasonably designate (including fees of counsel for the Initial
Purchasers and their reasonable disbursements in connection therewith), (iv) the
fees and expenses associated with obtaining approval for trading of the
Securities on any securities exchange (including the listing of the Securities
on the Luxembourg Stock Exchange) or inter-dealer quotation system (as well as
in connection with the designation of the Securities as PORTAL securities, if so
requested), (v) the printing (including word processing and duplication costs)
and delivery of this Agreement, the Registration Rights Agreement and the Blue
Sky Memorandum and the furnishing to the Initial Purchasers and dealers of
copies of the Offering Memorandum, including mailing and shipping, as herein
provided, (vi) any fees charged by investment rating agencies in connection with
the rating of the Securities, (vii) the fees and expenses of the Company's and
the Guarantor's counsel and independent accountant; (viii) the fees and expenses
of any Authorized Agent (as defined in Section 13 hereof), (ix) any stamp or
other issuance or transfer taxes or governmental duties, if any, payable by the
Initial Purchasers in connection with the offer and sale of the Securities to
the Initial Purchasers and resales by the Initial Purchasers to initial
purchasers thereof, and (x) all other reasonable out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by the Initial
Purchasers or any of their affiliates in connection with, or arising out of, the
offering and sale of the Securities;
(f) to use the gross proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified and under the
circumstances assumed in the Offering Memorandum under the caption "Use of
Proceeds";
(g) during the period beginning after the date hereof and continuing
until the date six months after the Closing Date, not to offer, sell, contract
to sell, or otherwise dispose of any securities of the Company that are
substantially similar to the Securities without the consent of Deutsche Bank
(which consent shall not be unreasonably withheld);
(h) not to take any action prohibited by Regulation M under the
Exchange Act in connection with the distribution of the Securities contemplated
hereby;
(i) that none of the Company or the Guarantor, any of their affiliates
(as defined in Rule 501(b) under the Securities Act) or any person acting on
behalf of the Company or such affiliate will solicit any offer to buy or offer
to sell the Securities by means of any form of general solicitation or general
advertising, including: (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar medium or
broadcast over
14
television or radio; and (ii) any seminar or meeting whose attendees have been
invited by any general solicitation or general advertising;
(j) that none of the Company or the Guarantor, any of their affiliates
(as defined in Rule 144(a)(1) under the Securities Act) or any person acting on
behalf of any of the foregoing will engage in any directed selling efforts with
respect to the Securities within the meaning of Regulation S;
(k) that none of the Company, any of its affiliates (as defined in
Regulation 501(b) of Regulation D) or any person acting on behalf of any of the
foregoing will sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Securities Act) which
will be integrated with the sale of the Securities in a manner which would
require the registration under the Securities Act of the Securities and the
Company and the Guarantor will take all action that is appropriate or necessary
to assure that their offerings of other securities will not be integrated for
purposes of the Securities Act with the offerings contemplated hereby;
(l) to obtain the approval of DTC for "book-entry" transfer of the
Securities;
(m) if requested by the Initial Purchasers, to use their best efforts
to cause the Securities to be eligible for the PORTAL trading system of the
National Association of Securities Dealers, Inc.;
(n) the Company and the Guarantor will, jointly and severally,
indemnify and hold harmless the Initial Purchasers against any documentary,
stamp or similar issuance tax, including any interest and penalties, whether in
Ireland or in any other jurisdiction, on the creation, issuance and sale of the
Securities and on the initial resale thereof by the Initial Purchasers and on
the execution and delivery of this Agreement; all payments to be made by the
Company and the Guarantor hereunder shall be made without withholding or
deduction for or on account of any present or future taxes, duties or
governmental charges whatsoever unless the Company or the Guarantor is compelled
by law to deduct or withhold such taxes, duties or charges; and in that event,
the Company or the Guarantor, as the case may be, shall pay such additional
amounts as may be necessary in order that the net amounts received after such
withholding or deduction shall equal the amounts that would have been received
if no withholding or deduction had been made;
(o) for so long as the Securities are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, to
furnish to holders of the Securities and prospective purchasers of the
Securities designated by such holders, upon request of such holders or such
prospective purchasers, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to
and in compliance with Section 13 or 15(d) of the Exchange Act or exempt from
reporting pursuant to Rule 12g3-2(b) thereunder (the foregoing agreement being
for the benefit of the holders from time to time of the Securities and
prospective purchasers of the Securities designated by such holders);
(p) to cause the Securities and Exchange Notes to be listed on the
Luxembourg Stock Exchange in accordance with the rules and regulations thereof
as promptly as practicable and to
15
maintain the listing of such securities on such exchange for so long as any such
security is outstanding;
(q) during the period from the Closing Date until two years after the
Closing Date, without the prior written consent of each of the Initial
Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Securities that have been
reacquired by them, except for Securities purchased by the Company or any of its
affiliates and resold in a transaction registered under the Securities Act, or
in a transaction outside the United States in accordance with Regulation S;
(r) to use their reasonable best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by them
prior to the Closing Date and to satisfy all conditions precedent to the
delivery of the Securities;
(s) other than (i) in respect of the exchange of the Existing Notes
for notes that will be registered with the Commission pursuant to a registration
rights agreement, dated as of September 30, 2002, by and among the Company, the
Guarantor and the initial purchasers named therein, or (ii) in respect of the
exchange of the 15 1/2% subordinated notes of the Company for notes that will be
registered with the Commission pursuant to a registration rights agreement dated
as of October 2, 2002, by and among the Company, the Guarantor and the initial
purchasers named therein, or (iii) pursuant to and in accordance with the
Registration Rights Agreement, for a period of 180 days from the date of the
Offering Memorandum, not to offer for sale, sell, contract to sell or otherwise
dispose of, directly or indirectly, or file a registration statement for, or
announce any offer, sale, contract for sale of or other disposition of any debt
securities issued or guaranteed by the Company or any of its subsidiaries (other
than the Securities) without the prior written consent of Deutsche Bank (which
consent shall not be unreasonably withheld);
(t) to use their reasonable best efforts to have the Securities
approved for trading and duly listed on the Luxembourg Stock Exchange before the
date of the first interest payment on the Notes; and
(u) to enter into an intercompany loan agreement on substantially the
terms set forth in Exhibit G.
6. The several obligations of the Initial Purchasers hereunder to
purchase the Securities on the Closing Date are subject to the performance by
the Company and the Guarantor of their obligations hereunder and to the
following additional conditions:
(a) the representations and warranties of the Company and the
Guarantor contained herein are true and correct on and as of the Closing Date as
if made on and as of the Closing Date; the statements of the Company, the
Guarantor and JSG and their respective officers made in any certificates
delivered pursuant to this Agreement shall be true and correct on and as of the
Closing Date; and the Company and the Guarantor shall have complied with all
agreements and all conditions on their part to be performed or satisfied
hereunder at or prior to the Closing Date;
16
(b) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
suspension or withdrawal in the rating accorded the Securities or any securities
of the Company or its subsidiaries by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act and no such organization shall have publicly announced
that it has under surveillance or review, with negative implications, its rating
of any securities of the Company or any of its subsidiaries;
(c) since the date as of which information is given in the Offering
Memorandum there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any material adverse
change or any development which would reasonably be expected to result in a
Material Adverse Effect, otherwise than as disclosed in the Offering Memorandum,
the effect of which in the judgment of Deutsche Bank makes it impracticable or
inadvisable to proceed with the offerings or the delivery of the Securities on
the Closing Date on the terms and in the manner contemplated in the Offering
Memorandum;
(d) the Initial Purchasers shall have received on and as of the
Closing Date a certificate of an officer of each of the Company and the
Guarantor, with specific knowledge about financial matters of the Company or the
Guarantor, as the case may be, reasonably satisfactory to the Initial Purchasers
to the effect set forth in subsections (a), (b) and (c) of this Section;
(e) Xxxxxxxx & Xxxxx, as United States and English counsel for the
Company and the Guarantor, shall have furnished to the Initial Purchasers its
written opinions, substantially in the form of Exhibits B and C attached hereto;
(f) Xxxxxxx Xxx, as Irish counsel for the Company and the Guarantor,
shall have furnished to the Initial Purchasers its written opinion, dated the
Closing Date, substantially in the form of Exhibit D attached hereto;
(g) Xxxxx Xxxxxxxx, as in-house counsel for JSG, shall have furnished
an opinion substantially in the form of Exhibit E attached hereto;
(h) on the date of the Offering Memorandum and on the Closing Date,
Ernst & Young, Dublin shall have furnished to the Initial Purchasers letters,
dated the respective dates of delivery thereof, in form and substance reasonably
satisfactory to the Initial Purchasers, containing statements and information of
the type customarily included in accountants "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Offering Memorandum;
(i) the Initial Purchasers shall have received an opinion of Xxxxxxx
Xxxxxxx & Xxxxxxxx, United States counsel to the Initial Purchasers, dated the
Closing Date, in form and substance reasonably satisfactory to the Initial
Purchasers;
(j) the Initial Purchasers shall have received a certificate of the
Company, dated the Closing Date, in form and substance satisfactory to the
Initial Purchasers and counsel for the Initial Purchasers, as to the solvency of
the Company following the SSCC Asset Swap;
(k) the Securities shall have been approved for trading and duly
listed on PORTAL;
17
(l) the Initial Purchasers shall have received counterparts, conformed
as executed, of the Indenture Amendment which shall have been entered into by
the Company, the Guarantor and the Trustee;
(m) the Initial Purchasers shall have received counterparts, conformed
as executed, of the Registration Rights Agreement, which shall have been entered
into by the Company and the Initial Purchasers;
(n) on or prior to the Closing Date, the Initial Purchasers shall have
received confirmation of the amendment to the Senior Credit Facility Agreement
on substantially the terms set forth on Exhibit H;
(o) on or prior to the Closing Date, the Company and the Guarantor
shall have entered into a priority agreement on substantially the terms set
forth on Exhibit I; and
(p) on or prior to the Closing Date the Company shall have furnished
to the Initial Purchasers such further certificates and documents as the Initial
Purchasers shall reasonably request.
7. The Company and the Guarantor, jointly and severally, agree to
indemnify and hold harmless each Initial Purchaser, each affiliate of any
Initial Purchaser that assists such Initial Purchaser in the distribution of the
Securities and each person, if any, who controls any Initial Purchaser within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including without limitation the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Offering Memorandum (and any amendment or
supplement thereto if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Initial Purchaser furnished to the Company in
writing by such Initial Purchaser expressly for use therein.
Each Initial Purchaser agrees, severally and not jointly, to indemnify
and hold harmless the Company and the Guarantor, their directors, their officers
and each person who controls the Company or the Guarantor within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, to
the same extent as the foregoing indemnity from the Company and the Guarantor to
each Initial Purchaser, but only with reference to information relating to such
Initial Purchaser furnished to the Company in writing by such Initial Purchaser
expressly for use in the Offering Memorandum or any amendment or supplement
thereto.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "INDEMNIFIED PERSON") shall promptly
notify the person against whom such indemnity may be sought (the
18
"INDEMNIFYING PERSON") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person, or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all Indemnified Persons, and that all such reasonable fees
and expenses shall be reimbursed as they are incurred. Any such separate firm
for the Initial Purchasers, each affiliate of any Initial Purchaser which
assists such Initial Purchaser in the distribution of the Securities and such
control persons of the Initial Purchasers shall be designated in writing by
Deutsche Bank, and any such separate firm for the Company and the Guarantor,
their directors, their officers and such control persons of the Company or the
Guarantor shall be designated in writing by the Company. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested that an Indemnifying Person reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, which consent will not be unreasonably withheld, effect
any settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding and does not include any
statement as to, or any admission of, fault, culpability or a failure to act by
or on behalf of any Indemnified Party.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantor on the one hand and the
Initial Purchasers on the other hand from the offering of the Securities or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law,
19
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 Guarantor on the one hand and the Initial Purchasers on the other in
connection with the statements or omissions that 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 Guarantor
on the one hand and the Initial Purchasers on the other shall be deemed to be in
the same respective proportions as the net proceeds from the offering (before
deducting expenses) received by the Company and the Guarantor, and the total
discounts and commissions received by the Initial Purchasers, bear to the
aggregate offering price of the Securities. The relative fault of the Company
and the Guarantor on the one hand and the Initial Purchasers on the other shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and the Guarantor
or by the Initial Purchasers and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company, the Guarantor and the Initial Purchasers agree that it would
not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Initial Purchasers or the Company
and the Guarantor were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Initial Purchaser be required
to contribute any amount in excess of the amount by which the total price at
which the Securities purchased by it were offered exceeds the amount of any
damages that such Initial Purchaser has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Initial Purchasers'
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective principal amount of the Securities set forth opposite their
names in Schedule I hereto, and not joint. The Company and the Guarantor's
obligations to contribute pursuant to this Section 7 are joint and several.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company, the Guarantor and the Initial
Purchasers set forth in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Initial Purchaser or any person
controlling any Initial Purchaser or by or on behalf of the Company and the
Guarantor, their officers, their directors or any other person controlling the
Company or the Guarantor and (iii) acceptance of and payment for any of the
Securities.
20
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of Deutsche Bank, by notice given to the
Company and the Guarantor, if after the execution and delivery of this Agreement
and prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the Irish Stock
Exchange, the Luxembourg Stock Exchange, the New York Stock Exchange, the
American Stock Exchange or the National Association of Securities Dealers, Inc.,
(ii) trading of any securities of or guaranteed by JSG shall have been suspended
on any exchange or in any over-the-counter market or settlement in such trading
shall have been materially disrupted, (iii) a general moratorium on commercial
banking activities shall have been declared by Irish, Luxembourg, United States
federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the reasonable judgment of Deutsche Bank, is
material and adverse and which, in the reasonable judgment of Deutsche Bank,
makes it impracticable to market the Securities on the terms and in the manner
contemplated in the Offering Memorandum.
9. If, on the Closing Date, any of the Initial Purchasers shall fail
or refuse to purchase Securities which it has agreed to purchase hereunder on
such date, and the aggregate principal amount or liquidation preference of the
Securities which such defaulting Initial Purchaser agreed but failed or refused
to purchase is not more than one-eleventh of the aggregate principal amount or
liquidation preference of the Securities to be purchased on such date, the other
Initial Purchasers shall be obligated to purchase the Securities which such
defaulting Initial Purchaser agreed but failed or refused to purchase on such
date; PROVIDED that in no event shall the principal amount or liquidation
preference of the Securities that any Initial Purchaser has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 9 by an amount in
excess of one-eleventh of such principal amount of the Securities without the
written consent of such Initial Purchaser. If, on the Closing Date, any Initial
Purchaser shall fail or refuse to purchase Securities which it has agreed to
purchase hereunder on such date, and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-eleventh
of the aggregate principal amount of the Securities to be purchased on such
date, and arrangements satisfactory to the Initial Purchasers and the Company
for the purchase of such Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Initial Purchaser or the Company. In any such case either the
Initial Purchasers or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Offering Memorandum or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Initial Purchaser from liability in respect of any
default of such Initial Purchaser under this Agreement.
10. If this Agreement shall be terminated by the Initial Purchasers,
or any of them, (i) because of any failure or refusal on the part of either the
Company or the Guarantor to comply with the terms or to fulfill any of the
conditions of this Agreement, or (ii) if for any reason the Company and the
Guarantor shall be unable to perform their obligations under this Agreement or
any condition of the Initial Purchasers' obligations cannot be fulfilled, the
Company and the Guarantor agree to reimburse the Initial Purchasers or such
Initial Purchaser as has so terminated this Agreement with respect to itself for
all out-of-pocket expenses (including the reasonable fees and expenses of its
counsel) reasonably incurred by such Initial Purchaser in connection with this
Agreement or the offering contemplated hereunder.
21
11. This Agreement shall inure to the benefit of and be binding upon
the Company and the Guarantor, the Initial Purchasers, each affiliate of any
Initial Purchaser which assists such Initial Purchaser in the distribution of
the Securities, any controlling persons referred to herein and their respective
successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or corporation any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. No purchaser of Securities from any Initial
Purchaser shall be deemed to be a successor by reason merely of such purchase.
12. The parties hereto acknowledge and agree that, for all purposes of
this Agreement, the information furnished to the Company by the Initial
Purchasers for inclusion in the Offering Memorandum consists solely of the
following information in the Offering Memorandum: the statements concerning the
Initial Purchasers contained in the first, second and seventh, eighth and ninth
paragraphs under the heading "Plan of Distribution."
13. (a) To the extent that the Company and the Guarantor or any of
their respective properties, assets or revenues may have or may hereafter become
entitled to, or have attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceeding, from the
giving of any relief in any such legal action, suit or proceeding, from set-off
or counterclaim, from the competent jurisdiction of any court, from service of
process, from attachment upon or prior to judgment, from attachment in aid of
execution of judgment, or from execution of judgment, or other legal process or
proceeding for the giving of any relief or for the enforcement of any judgment,
in any competent jurisdiction in which proceedings may at any time be commenced,
with respect to their obligations, liabilities or any other matter under or
arising out of or in connection with this Agreement and the transactions
contemplated hereby, the Company and the Guarantor hereby irrevocably and
unconditionally waive, and agree not to plead or claim, any such immunity and
consent to such relief and enforcement.
(b) The Company and the Guarantor irrevocably submit to the
non-exclusive jurisdiction of any federal or state court in the Borough of
Manhattan in the City, County and State of New York, United States of America,
in any legal suit, action or proceeding based on or arising under this Agreement
and agree that all claims in respect of such suit or proceeding may be
determined in any such court. The Company and the Guarantor irrevocably waive
the defense of an inconvenient forum or objections to personal jurisdiction with
respect to the maintenance of such legal suit, action or proceeding. To the
extent permitted by law, the Company and the Guarantor hereby waive any
objections to the enforcement by any competent court in Ireland of any judgment
validly obtained in any such court in New York on the basis of any such legal
suit, action or proceeding. The Company and the Guarantor have each appointed
National Registered Agents, Inc. (the "AUTHORIZED AGENT") as their respective
authorized agents upon whom process may be served in any such legal suit, action
or proceeding. Such appointments shall be irrevocable. National Registered
Agents, Inc. has agreed to act as said agent for service of process and the
Company and the Guarantor agree to take any and all action, including the filing
of any and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. The Company and the Guarantor
further agree that service of process upon the Authorized Agent and written
notice of said service to the Company and the Guarantor shall be deemed in every
respect effective service of process upon the Company and the Guarantor in any
such legal suit, action or proceeding. Nothing herein shall affect the right
22
of any Initial Purchaser or any person controlling any Initial Purchaser to
serve process in any other manner permitted by law. The provisions of this
Section 13(b) are intended to be effective upon the execution of this Agreement
without any further action by the Company or the Guarantor and the introduction
of a true copy of this Agreement into evidence shall be conclusive and final
evidence as to such matters.
(c) The Company and the Guarantor jointly and severally agree to
indemnify the Initial Purchasers against any loss incurred by them as a result
of any judgment or order being given or made and expressed and paid in a
currency (the "JUDGMENT CURRENCY") other than U.S. dollars (in the case of the
Dollar Securities) or euro (in the case of the Euro Securities) and as a result
of any variation as between (i) the rate of exchange at which the U.S. dollar
amount or the euro amount, as the case may be, is converted into the Judgment
Currency for the purpose of such judgment or order and (ii) the spot rate of
exchange in New York, New York at which such Initial Purchasers on the date of
payment of such judgment or order is able to purchase U.S. dollars or euro, as
the case may be, with the amount of the Judgment Currency actually received by
such Initial Purchasers. The foregoing shall constitute a separate and
independent obligation of the Company and the Guarantor and shall continue in
full force and effect notwithstanding any such judgment or order as aforesaid.
The term "spot rate of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, U.S.
dollars or euro, as the case may be.
14. Any action by the Initial Purchasers hereunder may be taken by the
Initial Purchasers jointly or by Deutsche Bank alone on behalf of the Initial
Purchasers, and any such action taken by the Initial Purchasers jointly or by
Deutsche Bank alone shall be binding upon the Initial Purchasers. All notices
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Initial Purchasers shall be given to Deutsche
Bank AG London, Winchester House, 1 Great Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX,
Xxxxxxx, Attention: Xxxxx Xxxxxxx (telefax number: x00 00 0000 0000); and
Xxxxxxx Xxxxx International, Xxxxxxx Xxxxx Financial Centre, 0 Xxxx Xxxxxx
Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx, Attention: Xxxxx Xxxxxx and the Head of
European Leveraged Finance (telefax number: x00 00 0000 0000); with a copy to
Xxxxxxx Xxxxxxx & Xxxxxxxx, CityPoint, One Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX,
Xxxxxxx, Attention: Xxxxxxx X. Xxxxxx (telefax number: x00 00 0000 0000); and to
MDP Acquisitions plc, Xxxxxx Xxx Xxxxxxxx, Xxxxxxxxx Xxxxxxx, Xxxxxx 0, Xxxxxxx,
Attention: Secretary (telefax number: x000 0 000 0000); and MDCP Acquisitions I,
Xxxxxx Xxx Building, Earlsfort Terrace, Dublin 2, Ireland, Attention: Secretary
(telefax number: x000 0 000 0000); with a copy to Xxxxxxxx & Xxxxx, 000 Xxxx
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxxxx (telefax: (312)
861 2200).
15. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
16. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
17. Notwithstanding anything to the contrary in this Agreement, the
parties hereto agree that the Guarantor shall have no liability hereunder, nor
shall any claims hereunder be
23
brought against the Guarantor, if such Guarantor liability would result in a
breach of the Senior Bank Financing.
[SIGNATURE PAGE FOLLOWS]
24
If the foregoing is in accordance with your understanding, please sign
and return six counterparts hereof.
Very truly yours,
MDP ACQUISITIONS PLC
By: /s/ XXX X. XXXXXX
---------------------------
Name:
Title:
MDCP ACQUISITIONS I
By: /s/ XXXX X. XxXXXX
---------------------------
Name:
Title:
Accepted: as of February 11, 2003
DEUTSCHE BANK AG LONDON
By: /s/ X. X. XXXX
---------------------------------
Name: X. X. XXXX
Title: M. D.
By: /s/ X. X. XXXXXX
---------------------------------
Name: X. X. XXXXXX
Title: V. P.
Accepted: as of February 11, 2003
XXXXXXX XXXXX INTERNATIONAL
By: /s/ XXXXX XXXXXX
---------------------------------
Name: Xxxxx Xxxxxx
Title: Director
