EXHIBIT (c)(3)
TOKHEIM CORPORATION
SECURITIES PURCHASE AGREEMENT
September 30, 1998
SCHLUMBERGER LIMITED
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Tokheim Corporation, an Indiana corporation (the "Company"), proposes to
issue and sell: (i) $170,000,000 aggregate principal amount of its 12% Senior
Subordinated Notes due January 28, 1999 (the "Senior Subordinated Notes"); (ii)
$40,000,000 aggregate principal amount of its 12% Junior Subordinated Notes due
September 30, 2008 (the "Junior Subordinated Notes"); and (iii) warrants (the
"Warrants") to purchase up to 19.9% of the outstanding shares of common stock of
Tokheim. The Senior Subordinated Notes will be issued pursuant to an Indenture
to be dated as of September 30, 1998 (the "Senior Indenture") between the
Company and Xxxxxx Trust and Savings Bank, as trustee (the "Senior Trustee"),
substantially in the form of Exhibit A. The Junior Subordinated Notes will be
issued pursuant to an Indenture to be dated as of September 30, 1998 (the
"Junior Indenture") between the Company and Xxxxxx Trust and Savings Bank, as
trustee (the "Junior Trustee"), substantially in the form of Exhibit B. In the
event that the Company is unable to repay the Senior Subordinated Notes at their
stated maturity, the Senior Subordinated Notes will convert, subject to certain
conditions, into Increasing Rate Senior Subordinated Notes due 2007 (the "Roll-
Over Notes"). The Company's obligations under the Senior Subordinated Notes and
the Junior Subordinated Notes will be guaranteed by certain of the Company's
subsidiaries (the "Guarantor Subsidiaries"). The Warrants will be issued
pursuant to a Warrant Agreement to be dated as of September 30, 1998 (the
"Warrant Agreement") between the Company and Schlumberger, substantially in the
form of Exhibit C. The Senior Subordinated Notes, Junior Subordinated Notes,
Roll-Over Notes and Warrants are sometimes referred to collectively as the
"Securities". The Company will grant certain registration rights to the holders
of the Securities pursuant to a Registration Rights Agreement to be dated as of
September 30, 1998 (the "Registration Rights Agreement"), substantially in the
form of Exhibit D.
The Company is issuing the Securities to Schlumberger in satisfaction of a
portion of the purchase price payable by the Company to Schlumberger pursuant to
the Master Agreement for Purchase and Sale of Shares, Assets and Liabilities
dated as of June 19, 1998 between the Company and Schlumberger, as amended by
letter agreements dated July 21, 1998, July 31, 1998 and August 28, 1998 and
Amendment No. 1 thereto dated September 30, 1998 (as so amended, the "Purchase
Agreement").
1. Representations, Warranties and Agreements of the Company. The Company
represents and warrants to, and agrees with, Schlumberger on and as of the date
hereof and the Closing Date (as defined in Section 3) that:
(a) The Company's Annual Report on Form 10-K for the year ended
November 30, 1997 (the "Form 10-K"), Quarterly Reports on Form 10-Q for the
quarters ended February 28, 1998 and May 31, 1998 and Current Reports on
Form 8-K filed subsequent to May 31, 1998 (the "Exchange Act Reports")
taken together do not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Company makes no representation or warranty in this Section 1(a) with
respect to the public disclosure of the transaction contemplated by the
Purchase Agreement.
(b) Assuming the accuracy of the representations and warranties of
Schlumberger contained in Section 2, it is not necessary, in connection
with the issuance of the Securities to Schlumberger, to register the
Securities or the Guarantees (as defined in Section 1(e)) under the
Securities Act or to qualify the Senior Indenture or the Junior Indenture
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act").
(c) The Company and each of its subsidiaries (the "Subsidiaries")
have been duly incorporated and are validly existing as corporations in
good standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good standing
as foreign corporations in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to so
qualify or have such power or authority would not, singularly or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of the Company and
the Subsidiaries taken as a whole (a "Material Adverse Effect").
(d) The Company has an authorized capitalization as set forth under
the heading "Capitalization" in the Company's Preliminary Offering
Memorandum dated July 31, 1998 relating to the proposed offering of its
___% Senior Subordinated Notes due 2008 (the "Preliminary Offering
Memorandum"). All of the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable. All of the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued, are fully paid
and non-assessable and are, to the extent indicated in the Form 10-K, owned
indirectly by the Company.
(e) The Company has full right, power and authority to execute and
deliver this Agreement, the Senior Indenture, the Junior Indenture, the
Warrant Agreement, the Registration Rights Agreement and the Securities
(collectively, the "Transaction Documents") and to perform its obligations
hereunder and thereunder; and all corporate action required to be taken for
the due and proper authorization, execution and delivery of
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each of the Transaction Documents and the consummation of the transactions
contemplated thereby have been duly and validly taken. Each of the
Guarantor Subsidiaries has full right, power and authority to execute and
deliver the Senior Indenture, the Junior Indenture and their respective
guarantees thereunder (the "Guarantees") and to perform its obligations
thereunder; and all corporate action required to be taken for the due and
proper authorization, execution and delivery of each such agreement or
instrument and the consummation of the transactions contemplated thereby
have been duly and validly taken.
(f) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding agreement of the
Company.
(g) The Registration Rights Agreement has been duly authorized by the
Company and, when duly executed and delivered in accordance with its terms
by Schlumberger, will constitute a valid and legally binding agreement of
the Company enforceable against the Company in accordance with its terms,
except to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at
law) and, with respect to the indemnification provisions, public policy
considerations.
(h) The Senior Indenture has been duly authorized by the Company and
the Guarantor Subsidiaries and, when duly executed and delivered in
accordance with its terms by the Senior Trustee, will constitute a valid
and legally binding agreement of the Company and the Guarantor Subsidiaries
enforceable against the Company and the Guarantor Subsidiaries in
accordance with its terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law). On the Closing Date, the Senior
Indenture will conform in all material respects to the requirements of the
Trust Indenture Act and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder.
(i) The Junior Indenture has been duly authorized by the Company and
the Guarantor Subsidiaries and, when duly executed and delivered in
accordance with its terms by the Junior Trustee, will constitute a valid
and legally binding agreement of the Company and the Guarantor Subsidiaries
enforceable against the Company and the Guarantor Subsidiaries in
accordance with its terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law).
(j) The Warrant Agreement has been duly authorized by the Company
and, when duly executed and delivered in accordance with its terms by
Schlumberger, will constitute
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a valid and legally binding agreement of the Company enforceable against
the Company in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
(k) The Securities have been duly authorized by the Company and, when
duly executed, authenticated, issued and delivered as provided herein and
in the Senior Indenture, the Junior Indenture and the Warrant Agreement,
will be duly and validly issued and outstanding and will constitute valid
and legally binding obligations of the Company, except to the extent that
such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law). The Guarantees
have been duly authorized by the Guarantor Subsidiaries and, when duly
executed, authenticated, issued and delivered as provided in the Senior
Indenture and the Junior Indenture, will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations of
the Guarantor Subsidiaries, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law).
(l) The execution, delivery and performance by the Company and the
Guarantor Subsidiaries of each of the Transaction Documents, the issuance,
authentication, sale and delivery of the Securities and the Guarantees and
compliance by the Company and the Guarantor Subsidiaries with the terms
thereof and of the Purchase Agreement and the consummation of the
transactions contemplated by the Transaction Documents and the Purchase
Agreement will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Guarantor Subsidiaries
pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument that remains in effect after the
Closing Date to which the Company or any of the Guarantor Subsidiaries is a
party or by which the Company or any of the Guarantor Subsidiaries is bound
or to which any of the property or assets of the Company or any of the
Guarantor Subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of the Company or any
of the Guarantor Subsidiaries or any statute or any judgment, order,
decree, rule or regulation of any court or arbitrator or governmental
agency or body having jurisdiction over the Company or any of the Guarantor
Subsidiaries or any of their properties or assets which would have a
material adverse effect; and no consent, approval, authorization or order
of, or filing or registration with, any such court or arbitrator or
governmental agency or body under any such statute, judgment, order,
decree, rule or regulation is required for the execution, delivery and
performance by the Company or any of the Guarantor Subsidiaries of each of
the Transaction Documents or the Purchase Agreement, the issuance,
authentication, sale and delivery of the Securities and the
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Guarantees and compliance by the Company and the Guarantor Subsidiaries
with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents and the Purchase Agreement,
except for such consents, approvals, authorizations, filings, registrations
or qualifications (i) which shall have been obtained or made prior to the
Closing Date and (ii) as may be required to be obtained or made under the
Securities Act of 1933, as amended (the "Securities Act") and applicable
state securities laws as provided in the Registration Rights Agreement.
(m) PricewaterhouseCoopers, to the knowledge of the Company, are
independent certified public accountants with respect to the Company and
the 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) contained in the Preliminary
Offering Memorandum with respect to the Company comply in all material
respects with the requirements applicable to a registration statement on
Form S-1 under the Securities Act (except that certain supporting schedules
are omitted); such financial statements have been prepared in accordance
with generally accepted accounting principles consistently applied
throughout the periods covered thereby and fairly present, in all material
respects, 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; and
the financial information contained in the Preliminary Offering Memorandum
under the headings "Summary--Summary Financial Data of Tokheim",
"Capitalization", "Selected Financial Data of Tokheim" and "Management's
Discussion and Analysis of Results of Operations and Financial Condition"
are derived from the accounting records of the Company and the Subsidiaries
and fairly present the information purported to be shown thereby. The pro
forma financial information contained in the Preliminary Offering
Memorandum has been prepared on a basis consistent with the historical
financial statements contained in the Preliminary 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 Securities
Exchange Act of 1934, as amended (the "Exchange Act") to reflect the
transactions described in the Preliminary Offering Memorandum, gives effect
to assumptions made on a reasonable basis and fairly presents, in all
material respects, the historical and proposed transactions contemplated by
the Preliminary Offering Memorandum, the Transaction Documents and the
Purchase Agreement. The other historical financial and statistical
information and data included in the Preliminary Offering Memorandum with
respect to the Company are, in all material respects, fairly presented.
(n) Except as disclosed in the Exchange Act Reports, there are no
legal or governmental proceedings pending to which the Company or any of
the Subsidiaries is a party or of which any property or assets of the
Company or any of the Subsidiaries is the subject which, singularly or in
the aggregate, if determined adversely to the Company or any of the
Subsidiaries, could reasonably be expected to have a Material Adverse
Effect; and to the best knowledge of the Company, no such proceedings are
threatened or
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contemplated by governmental authorities or threatened by others.
(o) No action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental agency or
body which prevents the issuance of the Securities; no injunction,
restraining order or order of any nature by any federal or state court of
competent jurisdiction has been issued with respect to the Company or any
of the Subsidiaries which would prevent or suspend the issuance of the
Securities; no action, suit or proceeding is pending against or, to the
best knowledge of the Company, threatened against or affecting the Company
or any of the Subsidiaries before any court or arbitrator or any
governmental agency, body or official, domestic or foreign, which could
reasonably be expected to interfere with or adversely affect the issuance
of the Securities or in any manner draw into question the validity or
enforceability of any of the Transaction Documents or the Purchase
Agreement or any action taken or to be taken pursuant thereto.
(p) Neither the Company nor any of the Subsidiaries is (i) in
violation of its charter or by-laws, (ii) in default in any material
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument to
which it is a party or by which it is bound or to which any of its property
or assets is subject or (iii) in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its property
or assets may be subject, which would have a material adverse effect.
(q) The Company and each of the Subsidiaries possess all material
licenses, certificates, authorizations and permits issued by, and have made
all declarations and filings with, the appropriate federal, state or
foreign regulatory agencies or bodies which are necessary or desirable for
the ownership of their respective properties or the conduct of their
respective businesses as described in the Preliminary Offering Memorandum,
except where the failure to possess or make the same would not, singularly
or in the aggregate, have a Material Adverse Effect, and neither the
Company nor any of the Subsidiaries has received notification of any
revocation or modification of any such license, certificate, authorization
or permit or has any reason to believe that any such license, certificate,
authorization or permit will not be renewed in the ordinary course, except
where such revocation or modification or failure to renew would not have a
material adverse effect.
(r) The Company and each of the Subsidiaries have filed all material
federal, state, local and foreign income and franchise tax returns required
to be filed through the date hereof and have paid all taxes due thereon,
and no tax deficiency has been determined adversely to the Company or any
of the Subsidiaries which has had (nor does the Company or any of the
Subsidiaries have any knowledge of any tax deficiency which, if determined
adversely to the Company or any of the Subsidiaries, could reasonably be
expected to have) a Material Adverse Effect.
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(s) Neither the Company nor any of the Subsidiaries is (i) an
"investment company" or a company "controlled by" an investment company
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the rules and regulations of the Commission
thereunder or (ii) a "holding company" or a "subsidiary company" of a
holding company or an "affiliate" thereof within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(t) The Company and each of the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that: (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(u) To the best of the Company's knowledge, the Company and each of
the Subsidiaries have insurance covering their respective properties,
operations, personnel and businesses, which insurance is in such amounts
and insures against such losses and risks as are adequate to protect the
Company and the Subsidiaries and their respective businesses. Neither the
Company nor any of the Subsidiaries has 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.
(v) The Company and each of the Subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses and know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of their
respective businesses; and the conduct of their respective businesses will
not conflict in any material respect with, and the Company and the
Subsidiaries have not received any notice of any claim of conflict with,
any such rights of others.
(w) The Company and each of the Subsidiaries have good and valid
title in fee simple to, or have valid rights to lease or otherwise use, all
items of real and personal property which are material to the business of
the Company and the Subsidiaries, in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title except as set
forth in the Bank Credit Agreement and disclosed in the Preliminary
Offering Memorandum or such as (i) do not materially interfere with the use
made and proposed to be made of such property by the Company and the
Subsidiaries or (ii) could not reasonably be expected to have a Material
Adverse Effect.
(x) No labor disturbance by or dispute with the employees of the
Company or any of the Subsidiaries exists or, to the best knowledge of the
Company, is contemplated or threatened.
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(y) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")) or "accumulated funding deficiency" (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect to
any employee benefit plan of the Company or any of the Subsidiaries which
could reasonably be expected to have a Material Adverse Effect; each such
employee benefit plan is in compliance in all material respects with
applicable law, including ERISA and the Code; the Company and each of the
Subsidiaries have not incurred and do not expect to incur material
liability under Title IV of ERISA with respect to the termination of, or
withdrawal from, any pension plan for which the Company or any of the
Subsidiaries would have any liability; and each such pension plan that is
intended to be qualified under Section 401(a) of the Code is so qualified
in all material respects and nothing has occurred, whether by action or by
failure to act, which could reasonably be expected to cause the loss of
such qualification.
(z) Neither the Company nor, to the best knowledge of the Company,
any director, officer, agent, employee or other person associated with or
acting on behalf of the Company has: (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
(aa) On and immediately after the Closing Date, the Company (after
giving effect to the issuance of the Securities and to the consummation of
the Acquisition) will be Solvent. As used in this paragraph, the term
"Solvent" means, with respect to a particular date, that on such date: (i)
the present fair market value (or present fair salable value) of the assets
of the Company (on a consolidated basis) is not less than the total amount
required to pay the probable liabilities of the Company on its total
existing debts and liabilities (including contingent liabilities) as they
become absolute and matured, (ii) the Company is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations and
commitments as they mature and become due in the normal course of business,
(iii) assuming the issuance of the Securities as contemplated by this
Agreement, the Company is not incurring debts or liabilities beyond its
ability to pay as such debts and liabilities mature and (iv) the Company is
not engaged in any business or transaction, and is not about to engage in
any business or transaction, for which its property would constitute
unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which the Company is engaged. In
computing the amount of such contingent liabilities at any time, it is
intended that such liabilities will be
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computed at the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
(bb) Except as set forth herein or described in the Preliminary
Offering Memorandum, there are no outstanding subscriptions, rights,
warrants, calls or options to acquire, or instruments convertible into or
exchangeable for, or agreements or understandings with respect to the sale
or issuance of, any shares of capital stock of or other equity or other
ownership interest in the Company or any of the Subsidiaries.
(cc) None of the proceeds of the sale of the Securities will be used,
directly or indirectly, in violation or conflict with Regulation T, U or X
of the Federal Reserve Board.
(dd) Neither the Company nor any of the Subsidiaries is a party to
any contract, agreement or understanding with any person that would give
rise to a valid claim against the Company or Schlumberger for a brokerage
commission, finder's fee or like payment in connection with the offering
and sale of the Securities.
(ee) Neither the Company nor any of its affiliates has, directly or
through any agent, sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any security (as such term is defined
in the Securities Act), which is or will be integrated with the sale of the
Securities in a manner that would require registration of the Securities
under the Securities Act.
2. Issuance of the Securities. (a) The Company agrees to issue to
Schlumberger, and Schlumberger, on the basis of the representations, warranties
and agreements contained herein and in the Purchase Agreement, and subject to
the terms and conditions set forth herein, agrees to accept from the Company,
the Junior Subordinated Indentures as payment of $40 million of the purchase
price, the Senior Subordinated Notes as payment of $170 million of the purchase
price, and the Warrants as payment of $20 million of the purchase price, for the
Acquisition.
(b) Schlumberger represents and warrants to the Company that it is
purchasing the Securities for investment purposes and not with a view to the
resale or other distribution thereof.
3. Delivery of the Securities. (a) Delivery of the Securities shall be
made at such place or places as shall be agreed upon by Schlumberger and the
Company, at 10:00 A.M., local time, on September 30, 1998 in connection with the
closing of the Acquisition pursuant to the Purchase Agreement (such date and
time of payment and delivery being referred to herein as the "Closing Date").
(b) On the Closing Date, payment of the purchase price for the Securities
shall be made to the Company by crediting the amounts set forth in Section 2(a)
against the purchase price for the Acquisition. Upon delivery, the Securities
shall be in global form, registered in such names and in such denominations as
Schlumberger shall have requested in writing not less than one business day
prior to the Closing Date.
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4. Further Agreements of the Company. The Company agrees with
Schlumberger:
(a) to advise Schlumberger promptly prior to the Closing Date and, if
requested, confirm such advice in writing, of the happening of any event
which makes any statement of a material fact made in the Exchange Act
Reports untrue or which requires the making of any amendments to or changes
in the Exchange Act Reports in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(b) for so long as the Securities are outstanding, to furnish to
Schlumberger copies of any annual reports, quarterly reports and current
reports filed by the Company with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar forms as may be designated by the Commission,
and such other documents, reports and information as shall be furnished by
the Company to the Senior Trustee or the Junior Trustee or to the holders
of the Securities pursuant to the Senior Indenture or the Junior Indenture
or the Exchange Act or any rule or regulation of the Commission thereunder;
(c) to do and perform all things required to be done and performed by
it under this Agreement that are within its control prior to or after the
Closing Date, and to use its best efforts to satisfy all conditions
precedent on its part to the delivery of the Securities;
(d) not to take any action prior to the execution and delivery of the
Senior Indenture or the Junior Indenture which, if taken after such
execution and delivery, would have violated any of the covenants contained
in the Senior Indenture or the Junior Indenture; and
(e) Tokheim shall take all necessary action to cause two nominees of
Schlumberger, selected by Tokheim from among Xxxxx Xxxxxxx, Xxxxx Xxxxxxxxx
or Xxxx-Xxxx Bize, to be added to the Tokheim Board of Directors on January
29, 1999 if the Senior Subordinated Notes or the Roll-Over Notes are
outstanding and have not been paid in full prior thereto.
5. Conditions of Schlumberger' Obligations. The obligations of
Schlumberger hereunder are subject to the accuracy, on and as of the date hereof
and the Closing Date, of the representations and warranties of the Company
contained herein and in the Purchase Agreement, to the accuracy of the
statements of the Company and its officers made in any certificates delivered
pursuant hereto and thereto, to the performance by the Company of its
obligations hereunder and thereunder, and to each of the following additional
terms and conditions:
(a) All conditions to the closing of the Acquisition shall have been
satisfied, and all documents, certificates and opinions required to be
delivered to Schlumberger pursuant to the Purchase Agreement shall have
been executed and delivered to Schlumberger and shall be satisfactory in
all material respects to Schlumberger.
(b) Schlumberger shall not have discovered and disclosed to the
Company on or prior to the Closing Date that the Exchange Act Reports or
any amendment thereto contains an untrue statement of a fact which, in the
opinion of counsel for Schlumberger, is material or omits to state any fact
which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein not
misleading.
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(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of the Transaction Documents and
the Purchase Agreement, and all other legal matters relating to the
Transaction Documents, the Purchase Agreement and the transactions
contemplated thereby, shall be satisfactory in all material respects to
Schlumberger, and the Company shall have furnished to Schlumberger all
documents and information that it or its counsel may reasonably request to
enable them to pass upon such matters.
(d) Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) and Xxxxxx X.
Xxxxxx, General Counsel of the Company, shall have furnished to
Schlumberger their written opinions, as counsel to the Company, addressed
to Schlumberger and dated the Closing Date, in form and substance
reasonably satisfactory to Schlumberger, substantially to the aggregate
effect set forth in Exhibit E.
(e) Schlumberger shall have received from Xxxxxx, Xxxx & Xxxxxxxx
LLP, counsel for Schlumberger, such opinion or opinions, dated the Closing
Date, with respect to such matters as Schlumberger may reasonably require,
and the Company shall have furnished to such counsel such documents and
information as they request for the purpose of enabling them to pass upon
such matters.
(f) The Company shall have furnished to Schlumberger a certificate,
dated the Closing Date, of its chief executive officer and its chief
financial officer, stating that (A) such officers have carefully examined
the Exchange Act Reports, (B) in their opinion, the Exchange Act Reports,
as of their respective dates, did not include any untrue statement of a
material fact and did not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading and
(C) as of the Closing Date, the representations and warranties of the
Company in this Agreement and the Purchase Agreement are true and correct
in all material respects, the Company has complied in all material respects
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder and thereunder on or prior to the Closing
Date, and subsequent to the date of the Purchase Agreement and prior to the
Closing Date there has been no material adverse change in the financial
position or results of operation of the Company or any of the Subsidiaries,
or any change, or any development including a prospective change, in or
affecting the condition (financial or otherwise), results of operations,
business or prospects of the Company and the Subsidiaries taken as a whole.
(g) Schlumberger shall have received a counterpart of the
Registration Rights Agreement which shall have been executed and delivered
by a duly authorized officer of the Company.
(h) The Senior Indenture shall have been duly executed and delivered
by the Company, the Guarantor Subsidiaries and the Senior Trustee, and the
Senior Subordinated Notes shall have been duly executed and delivered by
the Company and duly authenticated by the Senior Trustee.
11
(i) The Junior Indenture shall have been duly executed and delivered
by the Company, the Guarantor Subsidiaries and the Junior Trustee, and the
Junior Subordinated Notes shall have been duly executed and delivered by
the Company and duly authenticated by the Junior Trustee.
(j) The Rights Agreement, dated as of January 22, 1997, between the
Company and Xxxxxx Trust and Savings Bank, as Rights Agent (the "Rights
Plan"), shall have been duly amended to exempt the issuance of the Warrant
and the shares issuable thereunder from the operations of the Rights Plan.
(k) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance or
sale of the Securities or the closing of the Acquisition; and no
injunction, restraining order or order of any other nature by any federal
or state court of competent jurisdiction shall have been issued as of the
Closing Date which would prevent the issuance or sale of the Securities or
the closing of the Acquisition.
(l) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date there shall not have occurred any of the
following: (i) trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the over-the-counter market shall
have been suspended or limited, or minimum prices shall have been
established on any such exchange or market by the Commission, by any such
exchange or by any other regulatory body or governmental authority having
jurisdiction, or trading in any securities of the Company on any exchange
or in the over-the-counter market shall have been suspended or (ii) any
moratorium on commercial banking activities shall have been declared by
federal or New York state authorities or (iii) an outbreak or escalation of
hostilities or a declaration by the United States of a national emergency
or war or (iv) a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the
financial markets in the United States shall be such) the effect of which,
in the case of this clause (iv), is, in the judgment of Schlumberger, so
material and adverse as to make it impracticable or inadvisable to proceed
with the sale or the delivery of the Securities and the closing of the
Acquisition on the terms and in the manner contemplated by this Agreement
and in the Purchase Agreement.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for Schlumberger.
6. Termination. The obligations of Schlumberger hereunder may be
terminated by Schlumberger, in its absolute discretion, by notice to the Company
prior to delivery of the Securities if, prior to that time, any of the
conditions precedent to the closing of the Acquisition shall fail to be
satisfied to the reasonable satisfaction of Schlumberger.
7. Reimbursement of Schlumberger's Expenses. If (a) this Agreement shall
have been
12
terminated pursuant to Section 6 or (b) the Company shall fail to tender the
Securities for delivery to Schlumberger, the Company shall reimburse
Schlumberger for such out-of-pocket expenses (including reasonable fees and
disbursements of counsel) as shall have been reasonably incurred by Schlumberger
in connection with this Agreement and the proposed issuance of the Securities.
8. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and Schlumberger
contained in this Agreement or made by or on behalf of the Company or
Schlumberger pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any of them or
any of their respective affiliates, officers, directors, employees,
representatives, agents or controlling persons.
9. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to Schlumberger, shall be delivered or sent by mail or
telecopy transmission to Schlumberger Limited, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000, Attention: Xxxxx X. Xxxxxxxxx (telecopier no.:
(000) 000-0000); or
(b) if to the Company, shall be delivered or sent by mail or telecopy
transmission to Tokheim Corporation, 0000 Xxxxxx Xxxxxx, Xxxx Xxxxx,
Xxxxxxx 00000-0000, Attention: Xxxxxxx X. Xxxxxx (telecopier no.:
219-484-1110).
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
11. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
12. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
13
13. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement between the Company and Schlumberger in
accordance with its terms.
Very truly yours,
TOKHEIM CORPORATION
By
-----------------------------------
Accepted:
SCHLUMBERGER LIMITED
By
---------------------------
14
EXHIBIT A
[Form of Senior Subordinated Indenture]
15
EXHIBIT B
[Form of Junior Subordinated Indenture]
16
EXHIBIT C
[Form of Warrant Agreement]
17
EXHIBIT D
[Form of Exchange and Registration Rights Agreement]
18
EXHIBIT E
[Form of Opinion of Counsel for the Company]
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) and Xxxxxx X. Xxxxxx,
General Counsel of the Company, shall have furnished to Schlumberger their
written opinions, as counsel to the Company, addressed to Schlumberger and dated
the Closing Date, in form and substance reasonably satisfactory to Schlumberger,
substantially to the aggregate effect set forth below:
(i) The Company and each of its subsidiaries (the "Subsidiaries")
have been duly incorporated and are validly existing as corporations in
good standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good standing
as foreign corporations in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to so
qualify or have such power or authority would not, singularly or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of the Company and
the Subsidiaries taken as a whole (a "Material Adverse Effect").[NR]
(ii) The Company has an authorized capitalization as set forth under
the heading "Capitalization" in the Company's Preliminary Offering
Memorandum dated July 31, 1998 relating to the proposed offering of its
___% Senior Subordinated Notes due 2008 (the "Preliminary Offering
Memorandum"). All of the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable.[NR]
(iii) Assuming the accuracy of the representations and warranties of
Schlumberger contained in Section 2, it is not necessary, in connection
with the issuance of the Securities to Schlumberger to register the
Securities or the Guarantees under the Securities Act or to qualify the
Senior Indenture or the Junior Indenture under the Trust Indenture
Act.[SASMF]
(iv) The Company has full right, power and authority to execute and
deliver this Agreement, the Senior Indenture, the Junior Indenture, the
Warrant Agreement, the Registration Rights Agreement and the Securities and
to perform its obligations thereunder; and all corporate action required to
be taken for the due and proper authorization, execution and delivery of
each of the Transaction Documents and the consummation of the transactions
contemplated thereby have been duly and validly taken.[NR]
(v) This Agreement has been duly authorized, executed and delivered
by the Company [NR] and constitutes a valid and legally binding agreement
of the Company[SASMF].
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(vi) The Registration Rights Agreement has been duly authorized by
the Company[NR] and, assuming due execution and delivery thereof by
Schlumberger, is a valid and legally binding agreement of the Company
enforceable against the Company in accordance with its terms, except to the
extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law)[SASMF].
(vii) The Senior Indenture has been duly authorized by the Company
and the Guarantor Subsidiaries [NR] and, assuming due execution and
delivery thereof by the Senior Trustee, is a valid and legally binding
agreement of the Company and the Guarantor Subsidiaries enforceable against
the Company and the Guarantor Subsidiaries in accordance with its terms,
except to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at
law). The Senior Indenture conforms in all material respects to the
requirements of the Trust Indenture Act and the rules and regulations of
the Commission applicable to an indenture which is qualified
thereunder[SASMF].
(viii) The Junior Indenture has been duly authorized by the Company
and the Guarantor Subsidiaries [NR] and, assuming due execution and
delivery thereof by the Junior Trustee, is a valid and legally binding
agreement of the Company and the Guarantor Subsidiaries enforceable against
the Company and the Guarantor Subsidiaries in accordance with its terms,
except to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at
law)[SASMF].
(ix) The Warrant Agreement has been duly authorized by the Company
[NR] and, assuming due execution and delivery thereof by Schlumberger, is a
valid and legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law)[SASMF].
(xi) Neither the Company nor any of the Subsidiaries is (i) an
"investment company" or a company "controlled by" an investment company
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the rules and regulations of the Commission
thereunder.[SASMF]
20
