Exhibit 99.1
EXECUTION COPY
December 11, 1995
Xxxxxx Xxxxxxx & Co. Incorporated
Salomon Brothers Inc
BT Securities Corporation
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
EXIDE CORPORATION, a Delaware corporation (the "Company"), proposes to
issue and sell to the several Placement Agents named in Exhibit A hereto (the
"Placement Agents"), $346 million aggregate principal amount at maturity of its
2.90% Convertible Senior Subordinated Notes due 2005 (the "Firm Notes") to be
issued pursuant to the provisions of an Indenture (the "Indenture") to be dated
as of the Closing Date (as defined in Section 3 hereof) among the Company, as
issuer, and The Bank of New York, as trustee (the "Trustee"). The Company also
proposes to issue and sell to the several Placement Agents not more than $51.9
million principal amount at maturity of the Company's 2.90% Convertible Senior
Subordinated Notes due 2005 (the "Additional Notes") to cover over allotments if
and to the extent such option is exercised by the Placement Agents pursuant to
the right to purchase such Additional Notes granted in Section 3 hereof. The
Firm Notes and the Additional Notes are hereinafter referred to as the "Notes."
The Notes are convertible, at the option of the holder, into shares of common
stock of the Company (the "Common Stock") at any time after sixty days following
the later of the latest date of original issuance thereof and the Closing Date
through final stated maturity, unless previously redeemed or otherwise
repurchased by the Company. The number of shares of Common Stock issuable upon
conversion of the Notes (the "Conversion Shares") is equal to 12.5473 shares per
$1,000 principal amount at maturity of Notes.
The Notes will be offered without being registered under the
Securities Act of 1933, as amended (the "Securities Act"), to qualified
institutional buyers in compliance with the exemption from registration provided
by Rule 144A under the Securities Act, in offshore transactions in reliance on
Regulation S under the Securities Act and to institutional
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accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) that deliver a letter in the form annexed to the Final
Memorandum (as defined).
In connection with the sale of the Notes, the Company has prepared a
preliminary offering memorandum (the "Preliminary Memorandum") and will prepare
a final offering memorandum (the "Final Memorandum" and, with the Preliminary
Memorandum, each a "Memorandum") setting forth or including a description of the
terms of the Notes, the terms of the offering, a description of the Company and
any material developments relating to the Company occurring after the date of
the most recent financial statements incorporated by reference therein.
The purchasers of the Notes and their direct and indirect transferees
will be entitled to the benefits of a Registration Rights Agreement, to be dated
as of the Closing Date (the "Registration Rights Agreement") and to be
substantially in the form attached hereto as Exhibit B.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, you that as of the date hereof:
(a) The Preliminary Memorandum (including the information incorporated
by reference therein) does not contain and the Final Memorandum (including
the information incorporated by reference therein), in the form used by the
Placement Agents to confirm sales and on the Closing Date, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, except that the representations
and warranties set forth in this Section 1(a) do not apply to statements or
omissions in either Memorandum based upon information relating to the
Placement Agents furnished to the Company in writing by the Placement
Agents expressly for use therein. The documents incorporated by reference
in each Memorandum comply as to form in all material respects with the
applicable requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations promulgated thereunder.
(b) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in each Memorandum and is duly qualified to transact
business and is in good standing in each jurisdiction in which the failure
to be in good standing or to so qualify would have a material adverse
effect on the Company and its subsidiaries, taken as a whole (a "Material
Adverse Effect").
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(c) As used herein, the "Material Subsidiaries" of the Company are
Compagnie Europeene d'Accumulateurs S.A. ("CEAC"), GBC, Inc., General
Battery Corporation, a Pennsylvania Business Trust ("GBC"), Sociedad
Espanola del Acumulador Tudor, S.A. ("Tudor"), Xxxxx Batterie A.G.
("Xxxxx"), and Exide Batteries Limited ("B.I.G"). Each Material Subsidiary
of the Company has been duly incorporated, is validly existing as a
corporation or business trust, as the case may be, in good standing under
the laws of the jurisdiction of its incorporation, has the corporate or
business trust power and authority to own its property and to conduct its
business as described in each Memorandum and is duly qualified to transact
business and is in good standing in each jurisdiction in which the failure
to be so qualified or be in good standing would have a Material Adverse
Effect; and the Company beneficially owns, directly or indirectly an amount
equal to or at least 100%, 90.1%, 81.5% and 88.9% of the capital stock of
CEAC, Tudor, B.I.G. and Xxxxx, respectively, and with respect to such
shares the Company has, directly or indirectly, good and marketable title,
free and clear of all liens, charges, encumbrances or restrictions of any
kind, except for transfer restrictions and certain rights of first refusal
with respect to the capital stock of B.I.G. and liens under the European
Facilities Agreement (as defined in the Final Memorandum).
(d) This Agreement has been duly authorized, executed and delivered by
the Company.
(e) The Registration Rights Agreement has been duly authorized, and
when executed and delivered by the Company, will be a valid and binding
agreement of the Company, enforceable in accordance with its terms except
as (x) the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally, (y) the availability
of equitable remedies and the waiver of equitable rights or defenses may be
limited by equitable principles of general applicability and (z) any rights
to indemnity and contribution may be limited by federal and state
securities laws and public policy considerations.
(f) The Notes have been duly authorized and, when executed,
authenticated and delivered in accordance with the terms of the Indenture
and paid for by the Placement Agents in accordance with the terms of this
Agreement, will (x) be valid and binding obligations of the Company
enforceable in accordance with their terms, except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (B) rights of acceleration,
if applicable, and the availability of equitable remedies may be limited by
equitable principles of general applicability and (y) be entitled to the
benefits of the Indenture.
(g) The Indenture has been duly authorized and, when executed and
delivered by the Company and the Trustee, will be a valid and binding
agreement of
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the Company, enforceable in accordance with its terms except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (y) rights of acceleration,
if applicable, and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(h) The Conversion Shares have been duly authorized and reserved and,
when issued upon conversion of the Notes in accordance with the terms of
such Notes and the Indenture, will be validly issued, fully paid and
nonassessable and will not be subject to any preemptive rights or similar
rights.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture, the
Registration Rights Agreement, and the Notes, the issuance, sale and
delivery of the Notes, and the issuance and delivery of the Conversion
Shares upon conversion of the Notes will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the
Company or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, including, without limitation, the U.S.
Credit Agreement (as defined in the Final Memorandum) and the European
Facilities Agreement (as defined in the Final Memorandum) or any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any of its subsidiaries and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the issuance of the Notes or
the Conversion Shares upon conversion of the Notes, or the performance by
the Company of its obligations under this Agreement, the Indenture, the
Registration Rights Agreement or the Notes, except (x) such as may be
required by the securities or Blue Sky laws of the various states and
foreign authorities in connection with the offer and sale of the Notes and
(y) such as may be required by the federal securities laws of the United
States and the rules and regulations promulgated thereunder and the
securities or Blue Sky laws of the various states in connection with the
registration of the offer and sale of the Conversion Shares pursuant to the
Registration Rights Agreement.
(j) There has not occurred any material adverse change, or any
development (including, without limitation, any material change or
development relating to liability or remediation costs in respect of
Environmental Laws (as defined below)), which is reasonably likely to
result in a prospective material adverse change, in the financial
condition, or in the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, from that set forth in the Final
Memorandum.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the
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properties of the Company or any of its subsidiaries is subject that could
reasonably be expected to have a Material Adverse Effect, or a material
adverse effect on the power or ability of the Company to perform its
obligations under this Agreement, the Indenture, the Registration Rights
Agreement or the Notes or to consummate the transactions contemplated by
the Final Memorandum, except as disclosed in the Final Memorandum.
(l) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all necessary declarations and filings with, all
federal, state, local and other governmental authorities, all self-
regulatory organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business in
the manner described in the Final Memorandum, except where the failure to
do so would not have a Material Adverse Effect.
(m) Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D under the Securities Act, an "Affiliate") of the Company
has directly, or through any agent, (i) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of any security (as
defined in the Securities Act) which is or will be integrated with the sale
of the Notes in a manner that would require the registration under the
Securities Act of the Notes or (ii) engaged in any form of general
solicitation or general advertising in connection with the offering of the
Notes (as those terms are used in Regulation D under the Securities Act) or
in any manner involving a public offering within the meaning of Section
4(2) of the Securities Act, provided, however, that the Company makes no
representation as to the actions of the Placement Agents.
(n) The Company is not 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.
(o) It is not necessary in connection with the offer, sale and
delivery of the Notes to the Placement Agents in the manner contemplated by
this Agreement to register the offer and sale of the Notes under the
Securities Act or to qualify the Indenture under the Trust Indenture Act of
1939, as amended.
(p) The terms of the Notes and the Indenture conform in all material
respects to the descriptions thereof contained in the Final Memorandum
under the heading "Description of Notes" and the Conversion Shares conform
in all material respects to the description thereof contained in the Final
Memorandum under the heading "Description of Capital Stock."
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(q) The Company and its subsidiaries are (i) in compliance with any
and all applicable foreign, 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 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, be reasonably expected to have a Material Adverse Effect.
(r) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review and as described in the Final
Memorandum, the Company has reasonably concluded that such associated costs
and liabilities would not, singly or in the aggregate, be reasonably
expected to have a Material Adverse Effect.
(s) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida) relating to issuers
doing business with Cuba.
(t) None of the Company or any of its respective Affiliates or any
person acting on its behalf (other than the Placement Agents) has engaged
in any directed selling efforts (as that term is defined in Regulation S
under the Securities Act ("Regulation S")) with respect to the Notes and
the Company and its respective Affiliates and any persons acting on its or
their behalf (other than the Placement Agents) have complied with the
offering restrictions requirement of Regulation S.
(u) The terms and provisions of the European Facilities Agreement
conform in all material respects to the description thereof contained in
the Final Memorandum; and the Company will make available to you and your
counsel copies of such closing documents delivered to the banks party to
the European Facilities Agreement as you or such counsel may reasonably
request prior to the Closing Date.
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2. Offering. You have advised the Company that you will make an offering
of the Notes purchased by you hereunder on the terms set forth in the Final
Memorandum as soon as practicable after this Agreement is entered into as in
your judgment is advisable.
3. Purchase and Delivery. The Company hereby agrees to sell to the
several Placement Agents, and the Placement Agents, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agree, severally and not jointly, to purchase from the
Company, the aggregate principal amount at maturity of Notes set forth opposite
their names in Exhibit A at a purchase price of $703.399525 per $1,000 principal
amount thereof at maturity plus accrued interest, if any, from December 15, 1995
to the date of payment and delivery (the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Placement Agents and the Placement Agents shall have a one-time right to
purchase, severally and not jointly, up to an aggregate of $51.9 million
principal amount at maturity of Notes at the Purchase Price. Additional Notes
may be purchased solely for the purpose of covering overallotments made in
connection with the offering of the Firm Notes. If any Additional Notes are to
be purchased, each Placement Agent agrees, severally and not jointly, to
purchase the principal amount at maturity of Additional Notes (subject to such
adjustments to eliminate the issuance of Additional Notes in denominations other
than integral multiples of $1000 principal amount at maturity as the Placement
Agents may determine) that bears the same proportion to the principal amount at
maturity of Additional Notes to be purchased as the principal amount at maturity
of Firm Notes set forth in Exhibit A hereto opposite the name of such Placement
Agent bears to the total principal amount at maturity of Firm Notes.
Payment for the Firm Notes shall be made against delivery of the Firm
Notes at a closing (the "Closing") to be held at the offices of Shearman &
Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., local time,
on December 15, 1995, or at such other time on the same or such other date, not
later than December 29, 1995 as shall be designated in writing by you. The time
and date of such payment are herein referred to as the "Closing Date." Payment
for the Firm Notes shall be made by (i) certified or official bank check or
checks payable to the order of the Company in New York Clearing House Funds or
(ii) if requested by the Company, by wire transfer in immediately available
funds according to written transfer instructions provided by the Company,
provided that the Company shall pay to Xxxxxx Xxxxxxx & Co. Incorporated the
overnight cost of such funds at a rate equal to the closing Federal Funds rate
on the date such payment is made.
Payment for any Additional Notes to be sold by the Company shall be
made at the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, at 10:00 A.M., local time, on such date (which may be the same as the
Closing Date but shall in no event be earlier than the Closing Date nor later
than ten business days after the giving
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of the notice hereinafter referred to) as shall be designated in a written
notice from the Placement Agents to the Company their determination to purchase
an amount, specified in said notice, of Additional Notes. Payment for any
Additional Notes shall be made by (i) certified or official bank check payable
to the order of the Company in New York Clearing House Funds or (ii) if
requested by the Company, by wire transfer in immediately available funds
according to written transfer instructions provided by the Company, provided
that the Company shall pay to Xxxxxx Xxxxxxx & Co. Incorporated the overnight
cost of such funds at a rate equal to the closing Federal Funds rate on the date
such payment is made. The time and date of such payment are hereinafter
referred to as the "Option Closing Date." The notice of the determination to
exercise the option to purchase Additional Notes and of the Option Closing Date
may be given at any time within 30 days after the date of this Agreement, but in
any event shall be given at least two business days prior to the Option Closing
Date.
Certificates for the Firm Notes and the Additional Notes shall be in
definitive or global form and registered in such names and in such denominations
as you shall request in writing not less than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The Firm Notes and
any Additional Notes shall be delivered to you on the Closing Date or the Option
Closing Date, as the case may be, with any transfer taxes payable in connection
with the transfer of the Notes to you duly paid, against payment of the purchase
price therefor.
4. Conditions to Closing. The obligations of the Placement Agents under
this Agreement to purchase the Notes will be subject to the following
conditions:
(a) Subsequent to the execution and delivery of this Agreement and on
or prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development
which is reasonably likely to result in a prospective change, in the
financial condition, or in the earnings, business or operations, of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Final Memorandum, that, in your reasonable judgment, is
material and adverse and that makes it, in your reasonable judgment,
impracticable to market the Notes on the terms and in the manner
contemplated in the Final Memorandum.
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(b) You shall have received on the Closing Date a certificate, dated
the Closing Date and signed on the Company's behalf by (and solely in the
capacity of) an executive officer (or the Treasurer) of the Company, to the
effect set forth in clause (a)(i) above and to the effect that the
representations and warranties of the Company contained in this Agreement
are true and correct as of the Closing Date and that the Company has
complied with all of the agreements and satisfied all of the conditions on
its part to be performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of Xxxxxxxx
& Xxxxx, counsel for the Company, dated the Closing Date, to the effect
that:
(i) the Company is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the corporate
power and authority to own its property and to conduct its business as
described in the Final Memorandum and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
failure to so qualify or to be in good standing would have a Material
Adverse Effect;
(ii) each of the domestic Material Subsidiaries of the Company is
validly existing as a corporation or business trust in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate or business trust power and authority to own its property
and to conduct its business as described in the Final Memorandum and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify or to be in good
standing would have a Material Adverse Effect;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) the Registration Rights Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of,
the Company, enforceable against the Company in accordance with its
terms except as (x) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), (y) the availability of
equitable remedies and the waiver of equitable rights or defenses may
be limited by equitable principles of general applicability and (z)
any
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rights to indemnity and contribution may be limited by federal and
state securities laws and public policy considerations;
(v) the Indenture has been duly authorized, executed and
delivered by, and, assuming due execution and delivery by the Trustee,
is a valid and binding agreement of, the Company, enforceable against
the Company in accordance with its terms, except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law) and (y) rights of acceleration, if applicable, and
the availability of equitable remedies may be limited by equitable
principles of general applicability;
(vi) the Notes have been duly authorized and executed and, when
authenticated and delivered to and paid for by the Placement Agents in
accordance with the terms of this Agreement and assuming due
authentication by the Trustee, will be (x) valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, except as (A) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and (B)
rights of acceleration, if applicable, and the availability of
equitable remedies may be limited by equitable principles of general
applicability and (y) entitled to the benefits of the Indenture;
(vii) The Conversion Shares have been duly authorized and
reserved and, when issued upon conversion of the Notes in accordance
with the terms of such Notes and the Indenture, will be validly
issued, fully paid and nonassessable and will not be subject to any
preemptive rights or similar rights;
(viii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Notes and the Registration Rights Agreement, the
issuance, sale and delivery of the Notes and the issuance and delivery
of the Conversion Shares upon conversion of the Notes will not
contravene (A) any existing material applicable law of the State of
New York, the Delaware General Corporation Law or any existing
material federal law of the United States (including but not limited
to the Securities Act, the Exchange Act and the respective rules and
regulations thereunder) or any existing applicable material
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rule or regulation of such jurisdictions known to such counsel (in
each case other than any state securities or Blue Sky laws as to which
such counsel need not express any opinion) (no opinion need be
expressed pursuant to this subparagraph (viii)(A) as to any violation
of the antifraud provisions of any securities laws, including but not
limited to Section 10(b) of the Exchange Act and Rule 10b-5
thereunder), (B) the certificate of incorporation or by-laws of the
Company, (C) such agreements and instruments as are listed on Exhibit
C attached hereto, (D) to such counsel's knowledge, any agreements or
other instruments, other than those referred to in clause (C) above,
binding upon the Company or any of its subsidiaries that is material
to the Company and its subsidiaries, taken as a whole, or (E) to such
counsel's knowledge, any order to which the Company is subject;
(ix) no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
issuance of the Notes or the Conversion Shares upon conversion of the
Notes or the performance by the Company of its obligations under this
Agreement, the Indenture, the Registration Rights Agreement or the
Notes except (x) such as may be required by the securities or Blue Sky
laws of the various states and foreign authorities in connection with
the offer and sale of the Notes and (y) such as may be required by the
federal securities laws of the United States and the rules and
regulations promulgated thereunder and the securities or Blue Sky laws
of the various states in connection with the registration of the offer
and sale of the Conversion Shares pursuant to the Registration Rights
Agreement, as to which such counsel need express no opinion;
(x) the statements in the Final Memorandum under the captions
"Description of Notes," "Certain Transactions," "Description of
Certain Indebtedness," "Certain United States Federal Income Tax
Considerations," "Description of Capital Stock" and "Transfer
Restrictions," in each case insofar as such statements constitute
summaries of the legal matters, documents and proceedings referred to
therein, in all material respects fairly present the information with
respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein;
(xi) the terms of the Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the Final
Memorandum under the heading "Description of Notes" and the Conversion
Shares conform in all material respects to the description thereof
contained in the Final Memorandum under the caption "Description of
the Capital Stock";
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(xii) the Company is not 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;
(xiii) nothing has come to the attention of such counsel which
has caused it to believe that (except for financial statements and
schedules and financial and statistical data included or incorporated
by reference in the Final Memorandum as to which such counsel need not
express any belief) the Final Memorandum when issued contained, or as
of the date such opinion is delivered contains, any untrue statement
of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; and
(xiv) based upon the representations, warranties and agreements
of the Company in Sections 1(m), 1(t), 5(f), 5(g), 5(h), 5(i) and 5(k)
of this Agreement and of the Placement Agents in Section 6 of this
Agreement, it is not necessary in connection with the offer, sale and
delivery of the Notes to the Placement Agents under this Agreement or
in connection with the initial resale of such Notes by the Placement
Agents in accordance with Section 6 of this Agreement to register the
Notes under the Securities Act, it being understood that no opinion is
expressed as to any subsequent resale of any Note.
(d) You shall have received on the Closing Date an opinion of Xxxxxxx
X. Xxxxxxx, Executive Vice President and General Counsel of the Company,
dated the Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
(ii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Registration Rights Agreement and the Notes and the
issuance, sale and delivery of the Notes and the issuance and delivery
of the Conversion Shares upon conversion of the Notes will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or, to such counsel's
knowledge, any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or, to such counsel's knowledge, any
order to which the Company is subject;
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(iii) after reasonable inquiry, such counsel does not know of
any legal or governmental proceedings pending or threatened to which
the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject
other than proceedings fairly summarized in all material respects in
the Final Memorandum and proceedings which such counsel believes are
not likely to have a Material Adverse Effect or a material adverse
effect on the power or ability of the Company to (x) perform its
obligations under this Agreement, the Registration Rights, the
Indenture and the Notes or (y) issue, sell and deliver the Notes or
(z) consummate the transactions contemplated by the Final Memorandum;
(iv) such counsel is of the opinion that, to the best of his
knowledge, the Company is (i) in substantial compliance with any and
all applicable Environmental Laws in all material respects, (ii) has
received all material permits, licenses or other approvals required of
it under applicable Environmental Laws to conduct its business which
it believes are necessary for its operations and (iii) is in
substantial compliance with all terms and conditions of any such
permit, license or approval, 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) each of Tudor, B.I.G., Xxxxx and CEAC is validly existing as
a corporation under the laws of the jurisdiction in which it was
incorporated and has the corporate power and authority to own its
property and to conduct its business as described in the Final
Memorandum;
(vi) all of the outstanding shares of capital stock of Tudor,
B.I.G., Xxxxx and CEAC have been duly authorized and validly issued
and are fully paid and non-assessable; none of the outstanding shares
of capital stock of Tudor, B.I.G., Xxxxx and CEAC was issued in
violation of the preemptive or similar rights of any stockholder of
such entity; and the Company owns, of record, directly or indirectly
an amount equal to or at least 100%, 90.1%, 81.5%, and 88.9% of the
outstanding shares of capital stock of CEAC, Tudor, B.I.G. and Xxxxx,
respectively, and with respect to such shares the Company has,
directly or indirectly, good and marketable title, free and clear of
all liens, charges, encumbrances or restrictions of any kind, except
for certain transfer restrictions and rights of first refusal with
respect to B.I.G. and liens under the European Facilities Agreement;
and
14
(vii) nothing has come to the attention of such counsel which
leads him to believe that (except for financial statements and
schedules and financial and statistical data included or incorporated
by reference in the Final Memorandum as to which such counsel need not
express any belief) the Final Memorandum when issued contained, or as
of the date such opinion is delivered contains, any untrue statement
of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(e) You shall have received on the Closing Date an opinion of Xxxxx X.
Xxxxxxx, Assistant General Counsel, Environmental Resources of the Company,
dated the Closing Date, to the effect that such counsel is of the opinion
that, to the best of his knowledge, the Company is (i) in substantial
compliance with any and all applicable Environmental Laws in all material
respects, (ii) has received all material permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct its
business which it believes are necessary for its operations and (iii) is in
substantial compliance with all terms and conditions of any such permit,
license or approval, 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.
(f) You shall have received on the Closing Date (A) an opinion of
Xxxxx X. Xxxxxxx, Assistant General Counsel, Environmental Resources of the
Company, dated the Closing Date, to the effect that, to the best of his
knowledge, each of B.I.G., Tudor and CEAC (i) is in substantial compliance
with any and all applicable Environmental Laws in all material respects,
(ii) has received all material permits, licenses or other approvals
required of it under applicable Environmental Laws to conduct its business
which it believes are necessary for its operations, and (iii) is in
substantial compliance with all terms and conditions of any such permit,
license or approval, 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, (B) certificates from appropriate management personnel of CEAC,
B.I.G. and Tudor, to the effect that, to the best of their knowledge, CEAC,
B.I.G. or Tudor, as the case may be, (i) is in substantial compliance with
any and all applicable Environmental Laws in all material respects, (ii)
has received all material permits, licenses or other approvals required of
it under applicable Environmental Laws to conduct its business which it
believes are necessary for its operations, and (iii) is in substantial
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals
15
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.
(g) You shall have received on the Closing Date an opinion of Xxxxxxxx
& Xxxxxxxx, counsel for the Placement Agents, dated the Closing Date,
covering the matters referred to in (iii), (iv), (v), (vi), (x) (but only
as to the statements in the Final Memorandum under "Description of Notes,"
"Description of Capital Stock," "Private Placement" and "Transfer
Restrictions"), (xi), (xiii) and (xiv) of paragraph (c) above.
With respect to (xiii) of paragraph (c) above, Xxxxxxxx & Xxxxx,
counsel for the Company and Shearman & Xxxxxxxx, counsel for the Placement
Agents, and, with respect to (vii) of paragraph (d) above, Xxxxxxx X.
Xxxxxxx may state that their opinions and beliefs are based upon their
participation in the preparation of each Memorandum (and any amendments or
supplements thereto) and review and discussion of the contents thereof, but
are without independent check or verification except as specified. The
opinion of Xxxxxxxx & Xxxxx may contain such applicable exceptions as were
contained in its opinion dated April 28, 1995 that was previously delivered
to Xxxxxx Xxxxxxx & Co. Incorporated.
In addition, with respect to the opinions of Xxxxxxxx & Xxxxx, counsel
for the Company, Xxxxxxxx & Xxxxxxxx, counsel for the Placement Agents, and
Xxxxxxx X. Xxxxxxx, Executive Vice President and General Counsel of the
Company, (i) each of such counsel may also state that, insofar as such
opinions involve factual matters, they have relied to the extent they deem
proper upon certificates of the Company and any of its subsidiaries and
certificates of public officials, (ii) Xxxxxxxx & Xxxxx may state that,
with respect to (viii)(D) and (E) of paragraph (c) above, they have relied
upon the opinion of Xxxxxxx X. Xxxxxxx given in his capacity as Executive
Vice President and General Counsel of the Company, (iii) Xxxxxxx X. Xxxxxxx
may state that, with respect to (iv) of paragraph (d) above, he has relied
on the opinions of Xxxxx X. Xxxxxxx, and (iv) Xxxxx X. Xxxxxxx may state
that, insofar as his opinions in paragraph (e) and in paragraph (f) relate
to matters concerning CEAC, B.I.G. and Xxxxx, he has relied upon the
certificates of appropriate management personnel of CEAC, B.I.G. and Xxxxx,
respectively, as well as any opinions of local counsel reasonably
acceptable to you. Xxxxxxxx & Xxxxx need not express any opinion with
regard to the laws of any jurisdiction other than the laws of the United
States of America, the Delaware General Corporation Law and the laws of the
State of New York. Xxxxxxx X. Xxxxxxx need not express any opinion with
regard to the laws of any jurisdiction other than the laws of the United
States of America, the Delaware General Corporation Law and the laws of
Michigan, and except that insofar as his opinions relate to matters
concerning the laws of the State of New York, he shall assume that such
laws are comparable to the laws of the jurisdictions as to which he
16
will be opining; with respect to matters of foreign law he may rely on
opinions of local counsel reasonably acceptable to you. With respect to
such local counsel opinions, (i) such local counsel shall expressly state
that Xx. Xxxxxxx may rely thereon and (ii) Xx. Xxxxxxx shall expressly
state that he believes he is justified in so relying.
(h) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, from each of Xxxxxx Xxxxxxxx LLP, independent public
accountants for the Company, Xxxxxx Xxxxxxxx & Co., independent auditors
for Tudor, and Ernst & Young Audit, independent accountants for CEAC, in
each case containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in
each Memorandum.
(i) You shall have received on the date hereof the Registration Rights
Agreement effective as of the Closing Date and executed by the Company.
(j) You shall have received, prior to the Closing Date, from Xxxxxx X.
Xxxxxxx and Xxxxxxx X. Xxxxxxx, executed "lock-up" letters (the "Lock-Up
Letters"), in form and substance satisfactory to Xxxxxx Xxxxxxx & Co.
Incorporated, pursuant to which Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx
shall have agreed that, for a period of 90 days after the date of the Final
Memorandum, they will not offer, pledge, sell, contract to sell, sell any
option or contract or purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock, or enter into any swap or similar agreement that transfers, in whole
or in part, the economic risk of ownership of the Common Stock without the
prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated.
(k) You shall have received such other documents and certificates as
are reasonably requested by you or your counsel.
5. Covenants of the Company. In further consideration of the agreements
of the Placement Agents contained in this Agreement, the Company covenants as
follows:
(a) To furnish to you, without charge, during the period mentioned in
paragraph (c) below, as many copies of the Final Memorandum and any
supplements and amendments thereto as you may reasonably request and to
deliver such copies to you by 5:00 p.m. (New York time) on the business day
next following the execution of this Agreement.
17
(b) Before amending or supplementing either Memorandum, to furnish to
you a copy of each such proposed amendment or supplement and not to use any
such proposed amendment or supplement to which you reasonably object.
(c) If, during such period after the date hereof and prior to the date
on which all of the Notes shall have been sold by the Placement Agents, any
event shall occur or condition exist as a result of which it is necessary
to amend or supplement the Final Memorandum in order to make the statements
therein, in light of the circumstances when such Memorandum is delivered to
the purchasers, not misleading, or if, in the opinion of counsel to the
Placement Agents, it is necessary to amend or supplement such Memorandum to
comply with law, forthwith to prepare and furnish to the Placement Agents,
at the Company's expense, either amendments or supplements to such
Memorandum so that the statements in such Memorandum as so amended or
supplemented will not, in light of the circumstances when such Memorandum
is delivered by the Placement Agents to purchasers of the Notes, be
misleading or so that such Memorandum, as so amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Placement Agents
shall reasonably request; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to the general
service of process in any jurisdiction where it is not now so subject.
(e) Whether or not any sale of Notes to the Placement Agents is
consummated, to pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation of each
Memorandum and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Notes and the Conversion Shares
upon conversion of the Notes, including any transfer taxes payable in
connection with the transfer of the Notes to the Placement Agents, (iii)
the fees and disbursements of the Company's counsel and the reasonable fees
and disbursements of the Company's accountants and the Trustee and its
counsel, (iv) the qualification of such Notes under state securities or
Blue Sky laws in accordance with the provisions of paragraph (d) hereof,
including filing fees and the reasonable fees and disbursements of counsel
for the Placement Agents in connection therewith and in connection with the
preparation of any Blue Sky or Legal Investment Memoranda, (v) the printing
and delivery to the Placement Agents of copies of any Blue Sky or Legal
Investment Memoranda, (vi) the printing and delivery to the Placement
Agents, in quantities as hereinabove stated, of copies of each Memorandum
and any amendments or supplements thereto, (vii) the fees and expenses, if
any, incurred in connection with the admission of the Notes for trading in
any appropriate
18
market system including, without limitation, the Private Offerings, Resales
and Trading Through Automated Linkages Market ("PORTAL"), and (viii) any
expenses incurred by the Company in connection with a "road show"
presentation to potential investors.
(f) Neither the Company nor any of its Affiliates will sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which would be integrated with
the sale of the Notes in a manner which would require the registration
under the Securities Act of the Notes.
(g) Not to solicit any offer to buy, or offer or sell, the Notes by
means of any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(h) While any of the Notes remain outstanding, to make available, upon
request, to any seller of such Notes the information specified in Rule
144A(d)(4) under the Securities Act, unless the Company is then subject to
Section 13 or 15(d) of the Exchange Act.
(i) To include a description of transfer restrictions, legends and
related information in each Memorandum, in form and substance reasonably
acceptable to the Placement Agents.
(j) To use its reasonable efforts to permit the Notes to be designated
PORTAL securities in accordance with the rules and regulations adopted by
the National Association of Securities Dealers, Inc. relating to trading in
the PORTAL Market.
(k) None of the Company or any of its Affiliates or any person acting
on its or their behalf (other than the Placement Agents) will engage in any
directed selling efforts (as that term is defined in Regulation S) with
respect to the Notes, and the Company and its Affiliates and each person
acting on its or their behalf (other than the Placement Agents) will comply
with the offering restrictions of Regulation S.
(l) To use the net proceeds received by it from the sale of the Notes
in the manner specified in the Final Memorandum under the caption "Use of
Proceeds."
(m) It will, and will cause the transfer agent with respect to the
Common Stock to, refuse to register any transfer of Conversion Shares sold
pursuant to Regulation S if such transfer is not made after registration of
the Conversion Shares
19
under the Securities Act or in accordance with an available exemption from
the registration requirements of the Securities Act.
(n) To cause the Conversion Shares to be listed on the New York Stock
Exchange or any other exchange on which the Common Stock is listed and
primarily traded following registration of the Conversion Shares under the
Securities Act.
(o) For a period of 90 days after the date of the Final Memorandum, it
will not offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, or otherwise transfer or dispose of, directly
or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock, or enter into any
swap or similar agreement that transfers, in whole or in part, the economic
risk of ownership of the Common Stock without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated; except for (i) sales to the Placement
Agents pursuant to this Agreement, (ii) the issuance of Common Stock in
connection with the acquisition of equity interests of Accumulateurs
Sonnenschein GmbH and (iii) the grant of options, restricted stock and
other awards to employees pursuant to a benefit plan in effect on the date
hereof and the issuance of shares of Common Stock upon exercise of such
options and other awards.
6. Offering of the Notes; Restrictions on Transfer. (a) Each Placement
Agent represents and warrants that it is a qualified institutional buyer as
defined in Rule 144A under the Securities Act (a "QIB"). Each Placement Agent
agrees with the Company that (x) it will not solicit offers for, or offer or
sell, the Notes by any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities
Act and (y) it will solicit offers for such Notes only from, and will offer such
Notes only to, persons that it reasonably believes to be (A) in the case of
offers inside the United States, (i) QIBs or (ii) other institutional accredited
investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) ("institutional accredited investors") that, prior to their purchase of the
Notes, deliver to the Placement Agents a letter containing the representations
and agreements annexed to the Final Memorandum and (B) in the case of offers
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 such
Notes are deemed to have represented and agreed as provided in the Final
Memorandum under the heading "Transfer Restrictions."
(b) Each Placement Agent represents, warrants, and agrees, severally
and not jointly with respect to offers and sales outside the United States that:
20
(i) it understands that no action has been or will be taken in any
jurisdiction by the Company that would permit a public offering of the
Notes, or possession or distribution of either Memorandum or any other
offering or publicity material relating to the Notes, in any country or
jurisdiction where action for that purpose is required;
(ii) such Placement Agent will comply with all applicable laws and
regulations in each jurisdiction in which it acquires, offers, sells or
delivers Notes or has in its possession or distributes either Memorandum or
any such other material, in all cases at its own expense;
(iii) the Notes and the Conversion Shares 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;
(iv) such Placement Agent has offered the Notes and will offer and
sell the Notes (A) as part of their distribution at any time and (B)
otherwise until 40 days after the Closing Date, only in accordance with
Rule 903 of Regulation S. Accordingly, neither the Placement Agents, its
Affiliates nor any persons acting on its or their behalf have engaged or
will engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Notes, and the Placement Agents, their
Affiliates and any such persons have complied and will comply with the
offering restrictions requirement of Regulation S;
(v) such Placement Agent has (1) not offered or sold, and will not
offer or sell in the United Kingdom, by means of any document, any Notes
other than to persons whose ordinary business it is to buy and sell shares
or debentures, whether as a principal or agent, or in circumstances which
do not constitute an offer to the public within the meaning of the
Companies Act 1985, (2) complied and will comply with all applicable
provisions of the Financial Services Act 1986 with respect to anything done
by it in relation to the Notes in, from or otherwise involving the United
Kingdom and (3) only issued or passed on and will only issue and pass on to
any persons in the United Kingdom any document received by it in connection
with the issue of the Notes if that person is of a kind described in
Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1988;
(vi) such Placement Agent understands that the Notes have not been and
will not be registered under the Securities and Exchange Law of Japan, and
represents that it has not offered or sold, and agrees that it will not
offer or sell, any Notes, directly or indirectly in Japan or to or from any
resident of Japan except (1) pursuant
21
to an exemption from the registration requirements of the Securities and
Exchange Law of Japan and (2) in compliance with any other applicable
requirements of Japanese law; and
(vii) such Placement Agent agrees that, at or prior to confirmation
of sales of the Notes, it will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that
purchases Notes from it during the restricted period a confirmation or
notice to substantially the following effect:
"The Notes covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (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 (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 6 and not otherwise defined in this Agreement have
the meanings given to them by Regulation S.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Placement Agent and each person, if any, who controls
such Placement Agent within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, or is under common control with, or is
controlled by, any Placement Agent, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Placement Agent or any such controlling
person or affiliated person in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in either Memorandum (as amended or supplemented,
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
necessary to make the statements therein in light of the circumstances under
which they were made not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Placement Agent furnished to the Company in writing by you or on your behalf
expressly for use therein; provided that the foregoing indemnity agreement with
respect to the Preliminary Memorandum shall not inure to the benefit of any
Placement Agent, or any person controlling such Placement Agent, if a copy of
the Final Memorandum (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Placement Agent if required by laws to have been delivered, at or
prior to the written confirmation of the sale of the Notes, and if the
22
Final Memorandum (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities.
(b) Each Placement Agent agrees to indemnify and hold harmless the
Company, its directors, officers and each person, if any, who controls the
Company 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 to such Placement Agent, but only with reference to information relating
to such Placement Agent furnished to the Company in writing by you or on your
behalf expressly for use in either Memorandum or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraphs (a) or (b) above, such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party 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 party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party 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 party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated, in the case of
parties indemnified pursuant to paragraph (a) above, and by the Company, in the
case of parties indemnified pursuant to paragraph (b) above. The indemnifying
party shall not be liable for or required to contribute to 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
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by this paragraph, the indemnifying party agrees that it
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 such indemnifying party of the aforesaid request and (ii) such
indemnifying party
23
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) If the indemnification provided for in paragraph (a) or (b) of
this Section 7 is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party 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 indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Notes 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 indemnifying party or parties on the one hand and of the indemnified party
or parties on the other hand 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
on the one hand and the Placement Agents on the other hand in connection with
the offering of the Notes shall be deemed to be in the same respective
proportions as the net proceeds from the sale of the Notes (before deducting
expenses) received by the Company and the total discounts and commissions
received by the Placement Agents in respect thereof bear to the aggregate
offering price of the Notes. The relative fault of the Company on the one hand
and of the Placement Agents on the other hand 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 by the Placement Agents and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) The Company and the Placement Agents agree that it would not be
just or equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Placement Agent shall be required to contribute
any amount in excess of the
24
amount by which the total price at which the Notes resold by it in the initial
placement of such Notes were offered to investors exceeds the amount of any
damages that such Placement Agent 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 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.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations and warranties of the Company contained 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 Placement Agent or any person controlling any Placement Agent or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Notes.
8. Termination. This Agreement shall be subject to termination by notice
given by you to the Company, if (a) 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 New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either 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 your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event singly or
together with any other such event makes it, in your judgment, impracticable to
market the Notes on the terms and in the manner contemplated in the Final
Memorandum.
9. Miscellaneous. If, on the Closing Date or the Option Closing Date, as
the case may be, any one of the Placement Agents shall fail or refuse to
purchase Notes that it has agreed to purchase hereunder on such date, and the
aggregate principal amount of Notes which such defaulting Placement Agent or
Placement Agents agreed but failed or refused to purchase is not more than one-
tenth of the aggregate principal amount of Notes to be purchased on such date,
the other Placement Agents shall be obligated severally in the proportions that
the principal amount of Firm Notes set forth opposite their respective names in
Exhibit A bears to the aggregate principal amount of Firm Notes set forth
opposite the names of all such non-defaulting Placement Agents, or in such other
proportions as you may specify, to purchase the Notes which such defaulting
Placement Agent or Placement Agents
25
agreed but failed or refused to purchase on such date; provided that in no event
shall the principal amount of Notes that any Placement Agent has agreed to
purchase pursuant to Section 3 be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such principal amount of Notes without the
written consent of such Placement Agent. If, on the Closing Date or the Option
Closing Date, as the case may be, any Placement Agent or Placement Agents shall
fail or refuse to purchase Notes which it or they have agreed to purchase
hereunder on such date and the aggregate principal amount of Notes with respect
to which such default occurs is more than one-tenth of the aggregate principal
amount of Notes to be purchased on such date and arrangements satisfactory to
you and the Company for the purchase of such Notes are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Placement Agent or of the Company. In any such case either
you or the Company shall have the right to postpone the Closing Date or the
Option Closing Date, as the case may be, but in no event for longer than seven
days, in order that the required changes, if any, in the Final Memorandum or in
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Placement Agent from liability in
respect of any default of such Placement Agent under this Agreement.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
If this Agreement shall be terminated by the Placement Agents because
of any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Placement Agents for all out-of-pocket expenses
(including the fees and disbursements of its counsel) reasonably incurred by the
Placement Agents in connection with this Agreement or the offering contemplated
hereunder.
26
This Agreement shall be governed by the laws of the State of New York.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
Very truly yours,
EXIDE CORPORATION
By /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title:
Accepted, December 11, 1995
XXXXXX XXXXXXX & CO. INCORPORATED
By
----------------------------------
Name:
Title:
SALOMON BROTHERS INC
By
----------------------------------
Name:
Title:
BT SECURITIES CORPORATION
By
----------------------------------
Name:
Title:
26
This Agreement shall be governed by the laws of the State of New York.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
Very truly yours,
EXIDE CORPORATION
By
-----------------------------------------
Name:
Title:
Accepted, December 11, 1995
XXXXXX XXXXXXX & CO. INCORPORATED
By /s/ Xxxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title:
SALOMON BROTHERS INC
By
----------------------------------
Name:
Title:
BT SECURITIES CORPORATION
By
----------------------------------
Name:
Title:
26
This Agreement shall be governed by the laws of the State of New York.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
Very truly yours,
EXIDE CORPORATION
By
----------------------------------------
Name:
Title:
Accepted, December 11, 1995
XXXXXX XXXXXXX & CO. INCORPORATED
By
----------------------------------
Name:
Title:
SALOMON BROTHERS INC
By /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Associate
BT SECURITIES CORPORATION
By
----------------------------------
Name:
Title:
26
This Agreement shall be governed by the laws of the State of New York.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
Very truly yours,
EXIDE CORPORATION
By ___________________________________________
Name:
Title:
Accepted, December 11, 1995
XXXXXX XXXXXXX & CO. INCORPORATED
By ___________________________________
Name:
Title:
SALOMON BROTHERS INC
By ___________________________________
Name:
Title:
BT SECURITIES CORPORATION
By /s/ Xxxx X. Xxx
___________________________________
Name: Xxxx X. Xxx
Title: Managing Director
Exhibit A
---------
FIRM NOTES
----------
Name of Placement Agents Principal Amount at Maturity of Notes
----------------------------------- -------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $173,000,000
Salomon Brothers Inc $138,400,000
BT Securities Corporation $ 34,600,000
Exhibit B
---------
REGISTRATION RIGHTS AGREEMENT
[to be attached]
Exhibit C
---------
Senior Note Indenture dated as of December 17, 1992, between the Company and
Bank of Montreal Trust Company, as trustee, as amended.
Senior Subordinated Deferred Coupon Debenture Indenture, dated as of December
17, 1992, between the Company and the Bank of New York, as trustee, as amended.
Credit Agreement dated as of August 30, 1994 (the "Credit Agreement"), among the
Company, various financial institutions, Bankers Trust Company, Bank of America
National Trust and Savings Association and Bank of Montreal, as Agents, and
Bankers Trust Company, as Administrative Agent.
First Amendment dated as of October 21, 1994, among the Company, the financial
institutions party to the Credit Agreement, Bankers Trust Company, Bank of
America National Trust and Savings Association and Bank of Montreal, as Agents,
and Bankers Trust Company, as Administrative Agent.
Recapitalization Amendment Agreement dated as of December 17, 1992, among the
Company, certain affiliated parties and certain banks.
Receivables Purchase Agreement dated as of February 17, 1994 among the Company
and Three Rivers Funding Corporation.
Asset Purchase Agreement, dated as of June 10, 1991, between the Company and
Yuasa Battery (America), Inc.
Battronics Purchase Agreement dated October 15, 1993 among the Company, Xxxxx
Xxxxxxxx, 669073 Ontario Limited and 1036058 Ontario Inc.
Agreement dated July 22, 1994, between the Registrant and Corporacion Industrial
y Financiera de Banesto.
Share Purchase Agreement dated March 30, 1994, among Euro Exide Corporation
Limited, Xxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxx Xxxxx, Xxxxxxx Xxxxxxxx Xxxxx and Xxx
Xxxxxxx Xxxxx.
Agreement dated September 30, 1994, among Gemala (Isle of Man) Limited, PT Sapta
Panji Manggala, and B.I.G. Batteries Group Limited. Deed dated September 30,
1994 among Euro Exide Corporation Limited, Gemala (Isle of Man) Limited and
B.I.G. Batteries Group Limited. Master Agreement dated September 30, 1994 among
Euro Exide Corporation Limited, Gemala (Isle of Man) Limited, B.I.G. Batteries
Group Limited and PT Sapta Panji Manggala.
C-2
Master Agreement dated October 1, 1994, between Sears, Xxxxxxx and Co. and the
Company.
Stock Purchase Agreement dated March 17, 1995 among the Company, Fiat S.p.A and
SICIND S.p.A. and the Warranty Agreement dated March 17, 1995 between the
Company and Fiat S.p.A.
Second Consent, Waiver and Agreement dated as of December 9, 1994, among the
Company, the financial institutions party to the Credit Agreement, Bankers Trust
Company, Bank of America National Trust and Savings Association and Bank of
Montreal, as Agents, and Bankers Trust Company, as Administrative Agent.
Third Amendment dated as of February 3, 1995, among the Company, the financial
institutions party to the Credit Agreement, Bankers Trust Company, Bank of
America National Trust and Savings Association and Bank of Montreal, as Agents,
and Bankers Trust Company, as Administrative Agent.
Fourth Amendment dated as of March 6, 1995, among the Company, the financial
institutions party to the Credit Agreement, Bankers Trust Company, Bank of
America National Trust and Savings Association and Bank of Montreal, as Agents,
and Bankers Trust Company, as Administrative Agent.
Fifth Amendment and Consent dated as of April 18, 1995, among the Company, the
financial institutions party to the Credit Agreement, Bankers Trust Company,
Bank of America National Trust and Savings Association and Bank of Montreal, as
Agents, and Bankers Trust Company, as Administrative Agent.
Sixth Amendment and Consent dated as of April 21, 1995, among the Company, the
lenders party to the Credit Agreement, Bankers Trust Company, Bank of America
National Trust and Savings Association and Bank of Montreal, as Agents, and
Bankers Trust Company, as Administrative Agent.
Seventh Amendment and Consent dated as of April 25, 1995, among the Company, the
lenders party to the Credit Agreement, Bankers Trust Company, Bank of America
National Trust and Savings Association and Bank of Montreal, as Agents, and
Bankers Trust Company, as Administrative Agent.
Eighth Amendment and Consent dated as of August 17, 1995, among the Company, the
lenders party to the Credit Agreement, Bankers Trust Company, Bank of America
National Trust and Savings Association and Bank of Montreal, as Agents, and
Bankers Trust Company, as Administrative Agent.
C-3
Ninth Amendment and Consent dated as of November 22, 1995, among the Company,
the lenders party to the Credit Agreement, Bankers Trust Company, Bank of
America National Trust and Savings Association and Bank of Montreal, as Agents,
and Bankers Trust Company, as Administrative Agent.
Facilities Agreement dated February 28, 1995 among the Company, various
financial institutions and Bankers Trust Company, Bank of America National Trust
and Savings Association, Bank of Montreal and Dredner Bank Luxembourg S.A., as
Agents.
Senior Note Indenture dated as of April 28, 1995, between the Company and The
Bank of New York, as trustee.
First Supplemental Indenture dated as of August 16, 1995, between the Company
and The Bank of New York, as trustee.
Facilities Agreement, dated as of November 30, 1995, among the Company, various
financial institutions and Bankers Trust Company, Bank of America National Trust
and Savings Association, Bank of Montreal and Citibank International PLC, as
Underwriters and Bankers Trust Company, as Agent.
