Exhibit 4.4
Kronos International, Inc.
(euro)285,000,000
8 7/8% Senior Secured Notes due 2009
PURCHASE AGREEMENT
June 19, 2002
DEUTSCHE BANK AG LONDON
DRESDNER BANK AG LONDON BRANCH
COMMERZBANK AKTIENGESELLSCHAFT, LONDON BRANCH
c/o Deutsche Bank AG London
0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX, XX
Ladies and Gentlemen:
Kronos International, Inc., a Delaware corporation (the
"Company"), hereby confirms its agreement with you (the "Initial
Purchasers"), as set forth below.
1. The Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Initial Purchasers
(euro)285,000,000 aggregate principal amount of its 8 7/8% Senior Secured Notes
due 2009, Series A (the "Notes"). The Notes are to be issued under an indenture
(the "Indenture") to be dated as of June 28, 2002 by and between the Company and
The Bank of New York, as Trustee (the "Trustee").
The Notes will be offered and sold to the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "Act"), in
reliance on exemptions therefrom.
In connection with the sale of the Notes, the Company has prepared a
preliminary offering memorandum dated June 6, 2002 (the "Preliminary
Memorandum") and a final offering memorandum dated June 19, 2002 (the "Final
Memorandum"; the Preliminary Memorandum and the Final Memorandum each herein
being referred to as a "Memorandum") setting forth or including a description of
the terms of the Notes, the terms of the offering of the Notes, a description of
the Company and any material developments relating to the Company occurring
after the date of the most recent historical financial statements included
therein.
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The Initial Purchasers and their direct and indirect transferees of
the Notes will be entitled to the benefits of the Registration Rights Agreement,
substantially in the form attached hereto as Exhibit C (the "Registration Rights
Agreement"), pursuant to which the Company has agreed, among other things, to
file a registration statement (the "Registration Statement") with the Securities
and Exchange Commission (the "Commission") registering the Notes or the Exchange
Notes (as defined in the Registration Rights Agreement) under the Act.
The Initial Purchasers and their direct and indirect transferees of
the Notes will also be entitled to the benefits, and otherwise subject to the
terms, of the Security Documents (as to be defined in the Indenture) pursuant to
which the Company has agreed, among other things, to grant a senior security
interest in the Collateral (as to be defined in the Indenture), subject to
certain exceptions and otherwise in accordance with the terms of the Indenture.
2. Representations and Warranties. The Company represents
and warrants to and agrees with each of the Initial Purchasers that:
(a) Neither the Preliminary Memorandum as of the date thereof nor
the Final Memorandum nor any amendment or supplement thereto as of the
date thereof and at all times subsequent thereto up to the Closing Date
(as defined in Section 3 below) contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations and
warranties set forth in this Section 2(a) do not apply to statements or
omissions made in reliance upon and in conformity with information
relating to any of the Initial Purchasers furnished to the Company in
writing by the Initial Purchasers expressly for use in the Preliminary
Memorandum, the Final Memorandum or any amendment or supplement thereto.
(b) As of the Closing Date: the Company will have the authorized,
issued and outstanding capitalization set forth in the Final Memorandum;
all of the material subsidiaries of the Company are listed in Schedule 2A
attached hereto (each, a "Subsidiary" and collectively, the
"Subsidiaries"); all of the outstanding shares of capital stock of the
Company and the Subsidiaries have been, and as of the Closing Date will
be, duly authorized and validly issued, are fully paid and nonassessable
and were not issued in violation of any preemptive or similar rights; all
of the outstanding shares of capital stock of the Company and of each of
the Subsidiaries will be free and clear of all liens, encumbrances,
equities and claims or restrictions on transferability (other than those
imposed by the Act, by the securities or "Blue Sky" laws of certain
jurisdictions, by the Security Documents or, with respect to Subsidiaries
other than those the capital stock of which is to be pledged pursuant to
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the Security Documents, by the Credit Agreement (as defined in the Final
Memorandum)) or voting; except as set forth in the Final Memorandum, there
are no (i) options, warrants or other rights to purchase, (ii) agreements
or other obligations to issue or (iii) other rights to convert any
obligation into, or exchange any securities for, shares of capital stock
of or ownership interests in the Company or any of the Subsidiaries
outstanding. Except for the Subsidiaries and the additional subsidiaries
listed on Schedule 2B attached hereto or as disclosed in the Final
Memorandum, the Company does not own, directly or indirectly, any shares
of capital stock or any other equity or long-term debt securities or have
any equity interest in any firm, partnership, joint venture or other
entity.
(c) Each of the Company and the Subsidiaries is duly incorporated or
formed, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation or formation and has all
requisite corporate or partnership power and authority to own its
properties and conduct its business as now conducted and as described in
the Final Memorandum; each of the Company and the Subsidiaries is duly
qualified to do business as a foreign corporation or partnership, as
applicable, in good standing in all other jurisdictions where the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified
would not, individually or in the aggregate, have a material adverse
effect on the business, condition (financial or otherwise) or results of
operations of the Company and the Subsidiaries, taken as a whole (any such
event, a "Material Adverse Effect").
(d) The Company has all requisite corporate power and authority to
execute, deliver and perform each of its obligations under the Notes, the
Exchange Notes and the Private Exchange Notes (as defined in the
Registration Rights Agreement). The Notes, when issued, will be in the
form contemplated by the Indenture. The Notes, the Exchange Notes and the
Private Exchange Notes have each been duly and validly authorized by the
Company and, when executed by the Company and authenticated by the Trustee
in accordance with the provisions of the Indenture and, in the case of the
Notes, when delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement, will constitute valid and
legally binding obligations of the Company, entitled to the benefits of
the Indenture, and enforceable against the Company in accordance with
their terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity and the discretion
of the court before which any proceeding therefor may be brought.
(e) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Indenture. The
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Indenture (including provisions that are incorporated therein) meets the
requirements for qualification under the Trust Indenture Act of 1939, as
amended (the "TIA"). The Indenture has been duly and validly authorized by
the Company and, when executed and delivered by the Company (assuming the
due authorization, execution and delivery by the Trustee), will constitute
a valid and legally binding agreement of the Company, enforceable against
the Company in accordance with its terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought.
(f) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Registration Rights
Agreement. The Registration Rights Agreement has been duly and validly
authorized by the Company and, when executed and delivered by the Company
(assuming the due authorization, execution and delivery by the Initial
Purchasers), will constitute a valid and legally binding agreement of the
Company enforceable against the Company in accordance with its terms,
except that (A) the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the
court before which any proceeding therefor may be brought and (B) any
rights to indemnity or contribution thereunder may be limited by federal
and state securities laws and public policy considerations.
(g) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. This Agreement and the
consummation by the Company of the transactions contemplated hereby have
been duly and validly authorized by the Company. This Agreement has been
duly executed and delivered by the Company.
(h) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Security Documents
to which it is a party and to consummate the transactions contemplated
thereby to be consummated by it. The Security Documents and the
consummation by the Company of the transactions contemplated thereby have
been duly and validly authorized by the Company and, when the Security
Documents are executed and delivered, each of the Security Documents to
which it is a party will constitute a valid and legally binding obligation
of the Company enforceable against the Company in accordance with its
terms, except that the enforcement thereof may be subject to (i)
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bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect relating to creditor's
rights generally and (ii) general principals of equity and the discretion
of the court before which any proceeding therefore may be brought. On the
Closing Date, the Collateral will conform in all material respects to the
description thereof contained in the Final Memorandum.
(i) The Security Documents, once executed and delivered, will
create, in favor of the Collateral Agent (as to be defined in the
Indenture) for the benefit of the Trustee and the holders of the Notes, a
valid and enforceable, and upon filing or recording with the appropriate
governmental authorities and delivery of the applicable documents to the
Collateral Agent, a perfected senior security interest in and Lien upon
(in each case in accordance with the provisions of the relevant Security
Document) all of the Collateral, superior to and prior to the rights of
all third persons and subject to no other Liens except for Liens expressly
permitted to exist on such Collateral by the terms of the applicable
Security Document.
(j) No consent, approval, authorization or order of any court or
governmental agency or body, or third party is required for the issuance
and sale by the Company of the Notes to the Initial Purchasers or the
consummation by the Company of the other transactions contemplated hereby,
except such as have been obtained and such as may be required under
foreign and state securities or "Blue Sky" laws in connection with the
purchase and resale of the Notes by the Initial Purchasers. None of the
Company or the Subsidiaries is (i) in violation of its certificate of
incorporation or bylaws (or similar organizational document), (ii) in
breach or violation of any statute, judgment, decree, order, rule or
regulation applicable to any of them or any of their respective properties
or assets, except for any such breach or violation that would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, or (iii) in breach of or default under (nor has
any event occurred that, with notice or passage of time or both, would
constitute a default under) or in violation of any of the terms or
provisions of any indenture, mortgage, deed of trust, loan agreement,
note, lease, license, franchise agreement, permit, certificate, contract
or other agreement or instrument to which any of them is a party or to
which any of them or their respective properties or assets is subject
(collectively, "Contracts"), except for any such breach, default,
violation or event that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(k) The execution, delivery and performance by the Company of this
Agreement, the Indenture, the Registration Rights Agreement and the
Security Documents and the consummation by the Company of the transactions
contemplated hereby and thereby to be consummated by it (including,
without limitation, the issuance and sale of the Notes to the Initial
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Purchasers) will not conflict with or constitute or result in a breach of
or a default under (or an event that with notice or passage of time or
both would constitute a default under) or violation of (i) any of the
terms or provisions of any Contract, except for any such conflict, breach,
violation, default or event that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (ii)
the certificate of incorporation or bylaws (or similar organizational
document) of the Company or any of the Subsidiaries or (iii) (assuming
compliance with all applicable state securities or "Blue Sky" laws and
assuming the accuracy of the representations and warranties of the Initial
Purchasers in Section 8 hereof) any statute, judgment, decree, order, rule
or regulation applicable to the Company or any of the Subsidiaries or any
of their respective properties or assets, except for any such conflict,
breach, violation, default or event that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(l) The audited consolidated financial statements of the Company and
its subsidiaries included in the Final Memorandum present fairly in all
material respects the financial position, results of operations and cash
flows of the Company and its subsidiaries at the dates and for the periods
to which they relate and have been prepared in accordance with accounting
principles generally accepted in the United States of America applied on a
consistent basis, except as otherwise stated therein. The interim
unaudited consolidated financial statements of the Company and its
subsidiaries included in the Final Memorandum present fairly in all
material respects the financial position, results of operations and cash
flows of the Company and its subsidiaries at the dates and for the periods
to which they relate, except for the absence of footnotes and normal audit
adjustments, and have been prepared in accordance with accounting
principles generally accepted in the United States of America applied on a
consistent basis, except as otherwise stated therein. The summary and
selected financial and statistical data in the Final Memorandum present
fairly in all material respects the information shown therein and have
been prepared and compiled on a basis consistent with the audited
financial statements included therein, except as otherwise stated therein.
PricewaterhouseCoopers, LLP (the "Independent Accountants") is an
independent public accounting firm within the meaning of the Act and the
rules and regulations promulgated thereunder.
(m) Except as described in the Final Memorandum, the unaudited pro
forma financial data (including the notes thereto) included in the Final
Memorandum (i) comply as to form in all material respects with the
applicable requirements of Regulation S-X promulgated under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), (ii) have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and (iii) have been properly
computed on the bases described therein; the assumptions used in the
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preparation of the pro forma financial data and other pro forma financial
information included in the Final Memorandum are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(n) Except as disclosed in the Preliminary Memorandum and the Final
Memorandum, there is not pending or, to the knowledge of the Company,
threatened any action, suit, proceeding, inquiry or investigation to which
the Company or any of the Subsidiaries is a party, or to which the
property or assets of the Company or any of the Subsidiaries are subject,
before or brought by any court, arbitrator or governmental agency or body
that, if determined adversely to the Company or any of the Subsidiaries,
would, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect or that seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of the Notes
to be sold hereunder or the consummation of the other transactions to be
consummated by the Company or any of its Affiliates and described in the
Final Memorandum.
(o) Each of the Company and the Subsidiaries possesses all licenses,
permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals,
presently required or necessary to own or lease, as the case may be, and
to operate its respective properties and to carry on its respective
businesses as now conducted as set forth in the Final Memorandum
("Permits"), except where the failure to obtain such Permits would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; each of the Company and the Subsidiaries has
fulfilled and performed all of its obligations with respect to such
Permits and no event has occurred that allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any
other impairment of the rights of the holder of any such Permit, except
where any such absence of fulfillment or performance, or revocation or
termination, would not reasonably be expected to have a Material Adverse
Effect; and none of the Company or the Subsidiaries has received any
notice of any proceeding relating to revocation or modification of any
such Permit, except as described in the Final Memorandum and except where
such revocation or modification would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(p) Since the date of the most recent financial statements appearing
in the Final Memorandum, except as described in the Final Memorandum, (i)
none of the Company or the Subsidiaries has incurred any liabilities or
obligations, direct or contingent, or entered into or agreed to enter into
any transactions or contracts (written or oral) not in the ordinary course
of business, which liabilities, obligations, transactions or contracts
would, individually or in the aggregate, be materially adverse to the
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business, condition (financial or otherwise) or results of operations of
the Companies and its Subsidiaries, taken as a whole, (ii) none of the
Company or the Subsidiaries has purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or distribution
of any kind on its capital stock (other than with respect to any of such
Subsidiaries, the purchase of, or dividend or distribution on, capital
stock owned by the Company or a wholly owned Subsidiary) and (iii) there
has not been any material change in the capital stock or long-term
indebtedness of the Company or the Subsidiaries.
(q) Each of the Company and the Subsidiaries has filed all necessary
federal, state and foreign income and franchise tax returns, except where
the failure to so file such returns would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, and
has paid all taxes shown as due thereon; and, other than tax deficiencies
that the Company or any Subsidiary is contesting in good faith and for
which the Company or such Subsidiary has provided adequate reserves, there
is no tax deficiency that has been expressly asserted to the Company
against the Company or any of the Subsidiaries that would reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.
(r) The statistical and market-related data included in the Final
Memorandum are based on or derived from sources that the Company and the
Subsidiaries believe to be reliable and accurate with respect to such
data.
(s) None of the Company, the Subsidiaries or any agent acting on
their behalf has taken or will take any action that might cause this
Agreement or the sale of the Notes to violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System, in each case as in
effect, or as the same may hereafter be in effect, on the Closing Date.
(t) Each of the Company and the Subsidiaries has good title to all
real property and good title to all personal property described in the
Final Memorandum as being owned by it free and clear of all liens,
charges, encumbrances or restrictions, except as described in the Final
Memorandum or pursuant to the Credit Agreement or to the extent the
failure to have such title or the existence of such liens, charges,
encumbrances or restrictions would not, individually or in the aggregate,
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reasonably be expected to have a Material Adverse Effect. All leases,
contracts and agreements to which the Company or any of the Subsidiaries
is a party or by which any of them is bound are valid and enforceable
against the Company or such Subsidiary, to the Company's knowledge, and
are valid and enforceable against the other party or parties thereto and
are in full force and effect with only such exceptions as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The Company and the Subsidiaries own or possess
adequate licenses or other rights to use all patents, trademarks, service
marks, trade names, copyrights and know-how necessary to conduct the
businesses now operated by them as described in the Final Memorandum,
except where the failure to own or possess the foregoing would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. None of the Company or the Subsidiaries has
received any written (or, to the Company's knowledge, oral) notice of
infringement of or conflict with (or knows of any such infringement of or
conflict with) expressly asserted (in writing) rights of others with
respect to any patents, trademarks, service marks, trade names, copyrights
or know-how that, if such assertion of infringement or conflict were
sustained, would reasonably be expected to have a Material Adverse Effect.
(u) There are no legal or governmental proceedings involving or
affecting the Company or any Subsidiary or any of their respective
properties or assets that are of such materiality that such proceedings
would be required to be described in a prospectus pursuant to the Act and
which are not described in the Final Memorandum, nor are there any
material contracts or agreements that are of such materiality that the
same would be required to be described in a prospectus pursuant to the Act
(but excluding, for the avoidance of doubt, any contract that need not be
so described in a registration statement filed under the act, and
containing such prospectus, other than by the filing of such contract as
an exhibit to such registration statement) that are not described in the
Final Memorandum.
(v) Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (A) each of the
Company and the Subsidiaries is in compliance with and not subject to
liability under applicable Environmental Laws (as defined below), (B) each
of the Company and the Subsidiaries has made all filings and provided all
notices required under any applicable Environmental Law, and has and is in
compliance with all Permits required under any applicable Environmental
Laws and each of them is in full force and effect, (C) except as disclosed
in the Preliminary Memorandum and Final Memorandum, there is no civil,
criminal or administrative action, suit, demand, claim, hearing, notice of
violation, investigation, proceeding, notice or demand letter or request
for information pending or, to the knowledge of the Company or any of the
Subsidiaries, threatened against the Company or any of the Subsidiaries
under any Environmental Law, (D) no lien, charge, encumbrance or
restriction has been recorded under any Environmental Law with respect to
any assets, facility or property owned, operated, leased or controlled by
the Company or any of the Subsidiaries, (E) none of the Company or the
Subsidiaries has received notice that it has been identified as a
potentially responsible party under the Comprehensive Environmental
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Response, Compensation and Liability Act of 1980, as amended ("CERCLA"),
or any comparable state law and (F) no property or facility of the Company
or any of the Subsidiaries is (i) listed or proposed for listing on the
National Priorities List under CERCLA or (ii) listed in the Comprehensive
Environmental Response, Compensation, Liability Information System List
promulgated pursuant to CERCLA, or on any comparable list maintained by
any state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state and local laws or
regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder, relating to pollution or
protection of public or employee health and safety or the environment,
including, without limitation, laws relating to (i) emissions, discharges,
releases or threatened releases of hazardous materials into the
environment (including, without limitation, ambient air, surface water,
ground water, land surface or subsurface strata), (ii) the manufacture,
processing, distribution, use, generation, treatment, storage, disposal,
transport or handling of hazardous materials, and (iii) underground and
above ground storage tanks and related piping, and emissions, discharges,
releases or threatened releases therefrom.
(w) There is no strike, organized labor dispute, labor slowdown or
work stoppage with the employees of the Company or any of the Subsidiaries
that is pending or, to the knowledge of the Company or any of the
Subsidiaries, threatened which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.
(x) Each of the Company and the Subsidiaries carries insurance in
such amounts and covering such risks as are reasonably believed by it to
be adequate, in all material respects, for the conduct of its business and
the value of its properties.
(y) Except as disclosed in the Final Memorandum, none of the Company
or the Subsidiaries has any material liability for any prohibited
transaction or funding deficiency or any complete or partial withdrawal
liability with respect to any pension, profit sharing or other plan that
is subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or analogous foreign plans governed by analogous
foreign regulation, to which the Company or any of the Subsidiaries makes
or, within the prior six years has made, a contribution and in which any
employee of the Company or of any Subsidiary is or has ever been a
participant. With respect to such plans, the Company and each Subsidiary
is in compliance in all material respects with all applicable provisions
of ERISA.
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(z) Each of the Company and the Subsidiaries (i) makes and keeps
accurate books and records within the meaning of Section 13(b)(2) of the
Exchange Act and (ii) maintains internal accounting controls that provide
reasonable assurance that (A) transactions are executed in accordance with
management's general or specific authorization, (B) transactions are
recorded as necessary to permit preparation of its financial statements
and to maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management's general or specific
authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(aa) None of the Company or the Subsidiaries is or as a result of
the transactions contemplated hereby will become an "investment company"
or "promoter" or "principal underwriter" for an "investment company," as
such terms are defined in the Investment Company Act of 1940, as amended,
and the rules and regulations thereunder.
(bb) The Notes, the Indenture and the Registration Rights Agreement
will conform in all material respects to the descriptions thereof in the
Final Memorandum.
(cc) No holder of securities of the Company or any Subsidiary will
be entitled to have such securities registered under the registration
statements required to be filed by the Company pursuant to the
Registration Rights Agreement other than as expressly permitted thereby.
(dd) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair saleable
value of the assets of the Company and its subsidiaries (on a consolidated
basis, considered as a single enterprise for purposes of this paragraph)
will exceed the sum of its stated liabilities and identified contingent
liabilities; the Company and its subsidiaries (on a consolidated basis) is
not, nor will the Company and its subsidiaries (on a consolidated basis)
be, after giving effect to the execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated hereby,
(a) left with unreasonably small capital with which to carry on its
business as it is proposed to be conducted, (b) unable to pay its debts
(contingent or otherwise) as they mature or (c) otherwise insolvent.
(ee) None of the Company, the Subsidiaries or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under the
Act) has directly, or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any
"security" (as defined in the Act) that is or could be integrated with the
sale of the Notes in a manner that would require the registration under
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the Act of the Notes or (ii) engaged in any form of general solicitation
or general advertising (as those terms are used in Regulation D under the
Act) in connection with the offering of the Notes or in any manner
involving a public offering within the meaning of Section 4(2) of the Act.
Assuming the truth and correctness of the representations and warranties
of the Initial Purchasers in Section 8 hereof and their compliance with
their covenants in such Section, it is not necessary in connection with
the offer, sale and delivery of the Notes to the Initial Purchasers in the
manner contemplated by this Agreement to register any of the Notes under
the Act or to qualify the Indenture under the TIA.
(ff) No securities of the Company or any Subsidiary are of the same
class (within the meaning of Rule 144A under the Act) as the Notes and
listed on a national securities exchange registered under Section 6 of the
Exchange Act, or quoted in a U.S. automated inter-dealer quotation system.
(gg) None of the Company or the Subsidiaries has taken, nor will any
of them take, directly or indirectly, any action designed to, or that
might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Notes.
(hh) None of the Company, the Subsidiaries, any of their respective
Affiliates or any person acting on its or their behalf (other than the
Initial Purchasers) has engaged in any directed selling efforts (as that
term is defined in Regulation S under the Act ("Regulation S")) with
respect to the Notes; the Company, the Subsidiaries and their respective
Affiliates and any person acting on its or their behalf (other than the
Initial Purchasers) have complied with the offering restrictions
requirement of Regulation S.
Any certificate signed by any officer of the Company or any
Subsidiary and delivered (at the purchase and sale of the Notes on the Closing
Date) to any Initial Purchaser or to counsel for the Initial Purchasers shall be
deemed a representation and warranty by the Company to each Initial Purchaser as
to the matters covered thereby.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Initial Purchasers, and the Initial Purchasers, acting
severally and not jointly, agree to purchase the Notes in the respective amounts
set forth on Schedule 1 hereto from the Company at 100% of their principal
amount less an Initial Purchasers' fee of 2.25% of their principal amount. One
or more certificates in definitive form for the Notes that the Initial
Purchasers have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Initial Purchasers
request upon notice to the Company at least 36 hours prior to the Closing Date,
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shall be delivered by or on behalf of the Company to the Initial Purchasers,
against payment by or on behalf of the Initial Purchasers of the purchase price
therefor by wire transfer (same day funds), to such account or accounts as the
Company shall specify prior to the Closing Date, or by such means as the parties
hereto shall agree prior to the Closing Date. Such delivery of and payment for
the Notes shall be made at the offices of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M., New York time, on June 28, 2002, or at
such other place, time or date as the Initial Purchasers, on the one hand, and
the Company, on the other hand, may agree upon, such time and date of delivery
against payment being herein referred to as the "Closing Date." The Company will
make such certificate or certificates for the Notes available for checking and
packaging by the Initial Purchasers at the offices of Deutsche Bank Securities
Inc. in New York, New York, or at such other place as Deutsche Bank Securities
Inc. may designate, at least 24 hours prior to the Closing Date.
4. Offering by the Initial Purchasers. The Initial Purchasers
propose to make an offering of the Notes at the price and upon the terms set
forth in the Final Memorandum as soon as practicable after this Agreement is
entered into and as in the judgment of the Initial Purchasers is advisable.
5. Covenants of the Company. The Company covenants and agrees with
each of the Initial Purchasers that:
(a) The Company will not amend or supplement the Final Memorandum or
any amendment or supplement thereto of which the Initial Purchasers shall
not previously have been advised and furnished a copy for a reasonable
period of time prior to the proposed amendment or supplement and as to
which the Initial Purchasers shall not have given their consent (not to be
unreasonably withheld). The Company will promptly, upon the reasonable
request of the Initial Purchasers or counsel for the Initial Purchasers,
make any amendments or supplements to the Preliminary Memorandum or the
Final Memorandum that may be necessary or advisable in connection with the
resale of the Notes by the Initial Purchasers.
(b) The Company will cooperate with the Initial Purchasers in
arranging for the qualification of the Notes for offering and sale under
the securities or "Blue Sky" laws of such European Union, Canadian or
United States jurisdictions as the Initial Purchasers may designate and
will continue such qualifications in effect for as long as may be
reasonably necessary to complete the resale of the Notes; provided,
however, that in connection therewith, the Company shall not be required
to qualify as a foreign corporation (or any other foreign business
organization) or to execute a general consent to service of process in any
jurisdiction or subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction where it is not then so subject.
-14-
(c) If, at any time prior to the completion of the distribution by
the Initial Purchasers of the Notes or the Private Exchange Notes, any
event occurs or information becomes known as a result of which the Final
Memorandum as then amended or supplemented would include any untrue
statement of a material fact, or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if for any other reason it is
necessary at any time to amend or supplement the Final Memorandum to
comply with applicable law, the Company will promptly notify the Initial
Purchasers thereof and will prepare, at the expense of the Company, an
amendment or supplement to the Final Memorandum that corrects such
statement or omission or effects such compliance.
(d) The Company will, without charge, provide to the Initial
Purchasers and to counsel for the Initial Purchasers as many copies of the
Preliminary Memorandum and the Final Memorandum or any amendment or
supplement thereto as the Initial Purchasers may reasonably request.
(e) The Company will apply the net proceeds from the sale of the
Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) Until the third anniversary of the Closing Date, the Company
will furnish to the Initial Purchasers copies of all reports and other
communications (financial or otherwise) furnished by the Company to the
Trustee or to the holders of the Notes and, as soon as available, copies
of any reports or financial statements furnished to or filed by the
Company with the Commission or any national securities exchange on which
any class of securities of the Company may be listed; provided, however,
that any such reports or financial statements furnished to or filed by the
Company with the Commission need not be separately furnished to the
Initial Purchasers if such reports or statements are publicly available
through the Commission's electronic data gathering and retrieval database.
(g) Prior to the Closing Date, the Company will furnish to the
Initial Purchasers, as soon as they have been prepared, a copy of any
substantially complete unaudited interim financial statements of the
Company prepared in the ordinary course of business for any period
subsequent to the period covered by the most recent financial statements
appearing in the Final Memorandum.
(h) None of the Company or any of its Affiliates will sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect of any
"security" (as defined in the Act) that could be integrated with the sale
of the Notes in a manner which would require the registration under the
Act of the Notes.
-15-
(i) The Company will not, and will not permit any of the
Subsidiaries to, engage in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Notes or in any manner involving a
public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Notes remain outstanding, the Company
will make available at its expense, upon request, to any holder of such
Notes and any prospective purchasers thereof the information specified in
Rule 144A(d)(4) under the Act, unless the Company is then subject to
Section 13 or 15(d) of the Exchange Act.
(k) The Company will use its commercially reasonable efforts to (i)
permit the Notes to be eligible for trading on the Luxembourg Stock
Exchange and (ii) permit the Notes to be eligible for clearance and
settlement through the Euroclear System and Clearstream Banking, societe
anonyme.
(l) In connection with Notes offered and sold in an off shore
transaction (as defined in Regulation S) the Company will not register any
transfer of such Notes not made in accordance with the provisions of
Regulation S and will not, except in accordance with the provisions of
Regulation S, if applicable, issue any such Notes in the form of
definitive securities.
(m) The Company will comply with all of its agreements set forth in
the Indenture, the Registration Rights Agreement and the Security
Documents.
6. Expenses. The Company agrees to pay all costs and expenses
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 11 hereof, including all costs and expenses
incident to (i) the printing, word processing or other production of documents
with respect to the transactions contemplated hereby, including any costs of
printing the Preliminary Memorandum and the Final Memorandum and any amendment
or supplement thereto, and any "Blue Sky" memoranda, (ii) all arrangements
relating to the delivery to the Initial Purchasers of copies of the foregoing
documents, (iii) the fees and disbursements of the counsel, the accountants and
any other experts or advisors retained by the Company, (iv) preparation
(including printing), issuance and delivery to the Initial Purchasers of the
Notes, (v) the qualification of the Notes under European Union, Canadian and
United States state securities and "Blue Sky" laws, including filing fees and
reasonable fees and disbursements of counsel for the Initial Purchasers relating
thereto, (vi) expenses in connection with the "roadshow" and any other meetings
with prospective investors in the Notes, (vii) fees and expenses of the Trustee
and Luxembourg Listing Agent including fees and expenses of counsel, (viii) all
expenses and listing fees incurred in connection with the application for
listing of the Notes on the Luxembourg Stock Exchange and (ix) any fees charged
-16-
by investment rating agencies for the rating of the Notes. If the sale of the
Notes provided for herein is not consummated because any condition to the
obligations of the Initial Purchasers set forth in Section 7 hereof is not
satisfied on the Closing Date, because this Agreement is terminated or because
of any failure, refusal or inability on the part of the Company to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder (in any case other than solely by reason of a default by the Initial
Purchasers of their obligations hereunder after all conditions hereunder have
been satisfied in accordance herewith), the Company agrees to promptly reimburse
the Initial Purchasers upon demand for all out-of-pocket expenses (including
reasonable fees, disbursements and charges of Xxxxxx Xxxxxx & Xxxxxxx, counsel
for the Initial Purchasers) that shall have been incurred by the Initial
Purchasers in connection with the proposed purchase and sale of the Notes.
7. (A) Conditions of the Initial Purchasers' Obligations. The
obligation of the Initial Purchasers to purchase and pay for the Notes shall, in
their sole discretion, be subject to the satisfaction or waiver of the following
conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received
(i) the opinion, dated as of the Closing Date and addressed to the Initial
Purchasers, of Xxxxx Xxxxxxx & Xxxx LLP, counsel for the Company, in form
and substance reasonably satisfactory to counsel for the Initial
Purchasers, to the effect set forth in Exhibit A, (ii) the opinion, dated
as of the Closing Date and addressed to the Initial Purchasers, of
Xxxxxxxx Xxxxxxx & Partner, German counsel to the Company, in form and
substance reasonably satisfactory to counsel for the Initial Purchasers,
to the effect set forth in Exhibit B, (iii) the opinion, dated as of the
Closing Date and addressed to the Initial Purchasers, of Xxxx-Xxxxx
Dragsted Law Firm, Danish counsel to the Company, in form and substance
reasonably satisfactory to the Initial Purchasers, to the effect set forth
in Exhibit B, (iv) the opinion, dated as of the Closing Date and addressed
to the Initial Purchasers, of Xxxxxxxx Xxxxxxxxx, United Kingdom counsel
to the Company, in form and substance reasonably satisfactory to the
Initial Purchasers, to the effect set forth in Exhibit B, and (v) the
opinion, dated as of the Closing Date and addressed to the Initial
Purchasers, of MB et Associes, French counsel to the Company, in form and
substance reasonably satisfactory to the Initial Purchasers, to the effect
set forth in Exhibit B.
(b) On the Closing Date, the Initial Purchasers shall have received
the opinion, in form and substance satisfactory to the Initial Purchasers,
dated as of the Closing Date and addressed to the Initial Purchasers, of
Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers, with respect
to certain legal matters relating to this Agreement and such other related
matters as the Initial Purchasers may reasonably require. In rendering
-17-
such opinion, Xxxxxx Xxxxxx & Xxxxxxx shall have received and may rely
upon such certificates and other documents and information as it may
reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from the Independent
Accountants a comfort letter or letters dated the date hereof and the
Closing Date, in form and substance reasonably satisfactory to counsel for
the Initial Purchasers.
(d) The representations and warranties of the Company contained in
this Agreement shall be true and correct on and as of the date hereof and
on and as of the Closing Date as if made on and as of the Closing Date;
the statements of the Company's officers made in any certificate signed by
them delivered on or as of the Closing Date in accordance with the
provisions hereof shall be true and correct on and as of the date made and
on and as of the Closing Date; the Company shall have performed in all
material respects all covenants and agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior
to the Closing Date; and, except as described in the Final Memorandum
(exclusive of any amendment or supplement thereto after the date hereof),
subsequent to the date of the most recent financial statements in such
Final Memorandum, there shall have been no event or development, and no
information shall have become known, that, individually or in the
aggregate, has or would be reasonably likely to have a Material Adverse
Effect.
(e) The sale of the Notes hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements
in the Final Memorandum (exclusive of any amendment or supplement thereto
after the date hereof), none of the Company or any of the Subsidiaries
shall have sustained any loss or interference with respect to its business
or properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any strike, organized labor
dispute, labor slow down or work stoppage or from any legal or
governmental proceeding, order or decree, which loss or interference,
individually or in the aggregate, has or would be reasonably likely to
have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate of the
Company, dated the Closing Date, signed on behalf of the Company by its
Chief Executive Officer or any President or Vice President and the Chief
Financial Officer, to the effect that:
(i) The representations and warranties of the Company
contained in this Agreement are true and correct on and as of the
date hereof and on and as of the Closing Date, and the Company has
-18-
performed in all material respects all covenants and agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the
date of the most recent financial statements in the Final Memorandum
(exclusive of any amendment or supplement thereto after the date
hereof), no event or development has occurred, and no information
has become known, that, individually or in the aggregate, has or
would be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Notes hereunder has not been
enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received
the Registration Rights Agreement executed by the Company and such
agreement shall be in full force and effect at the Closing Date.
(i) On the Closing Date, the Initial Purchasers shall have received
the Escrow and Pledge Agreement and the Securities Account Control
Agreement, each dated the Closing Date, executed by the Company, NL
Industries, Inc., the trustee identified therein and the securities
intermediary identified therein.
(j) On or before the Closing Date, the Company shall have caused to
be delivered the following documents and instruments with regard to the
Collateral:
(i) to the Trustee (with a copy to the Initial Purchasers),
the Security Agreements and other Security Documents, duly executed
by the Company, together with certificates, if any, representing 65%
of the issued and outstanding capital stock or other equity
interests of the first-tier Subsidiaries required to be pledged to
the Trustee and evidence of all registrations or filings in each of
the offices where such registrations or filings are necessary or, in
the opinion of the Initial Purchasers, desirable to perfect the
Liens created or intended to be created thereby;
(ii) to the Initial Purchasers and the Trustee, evidence
satisfactory to them of the payment of all filing fees and taxes in
connection with the filings and registrations contemplated in clause
(i) above and acknowledgment copies of all such filings; and
(iii) to the Initial Purchasers and the Trustee, evidence as may
be reasonably requested that all other actions necessary to perfect
-19-
and, subject to Liens expressly permitted to exist by the terms of
the applicable Security Document, protect the Liens created or
intended to be created by the Security Documents have been taken.
(k) The new credit facility (the "New Credit Facility") among Kronos
Titan GmbH & Co. OHG, Kronos Europe S.A./N.V., Kronos Titan A/S and
Titania A/S (and other subsidiaries of the Company) and the lenders party
thereto shall be in full force and effect; all conditions to making the
initial loans thereunder shall have been satisfied and the borrowers
thereunder shall be in compliance with all the terms thereof.
On or before the Closing Date, the Initial Purchasers and counsel
for the Initial Purchasers shall have received from the Company such further
documents, opinions, certificates, letters and schedules or instruments relating
to the business, corporate, legal and financial affairs of the Company and the
Subsidiaries as they shall have heretofore reasonably requested from the
Company.
All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchasers and counsel for the Initial Purchasers. The Company shall
furnish to the Initial Purchasers such conformed copies of such documents,
opinions, certificates, letters, schedules and instruments in such quantities as
the Initial Purchasers shall reasonably request.
(B) Condition of the Company's Obligations. The obligation of the
Company to issue and sell the Notes shall, in its sole discretion, be subject to
the satisfaction or waiver of the condition that on or prior to the Closing Date
the New Credit Facility shall be in full force and effect; all conditions to
making the initial loans thereunder shall have been satisfied and the borrowers
thereunder shall be in compliance with all the terms thereof.
8. Offering of Notes; Restrictions on Transfer. (a) Each of the
Initial Purchasers agrees with the Company (as to itself only) that (i) it has
not and will not solicit offers for, or offer or sell, the Notes by any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Act; and (ii) it has and will solicit offers
for the Notes only from, and will offer the Notes only to (A) in the case of
offers inside the United States, persons whom the Initial Purchasers reasonably
believe to be qualified institutional buyers within the meaning of Rule 144A
under the Act (individually, a "QIB") or, if any such person is buying for one
or more institutional accounts for which such person is acting as fiduciary or
agent, only when such person has represented to the Initial Purchasers that each
such account is a QIB, to whom notice has been given that such sale or delivery
-20-
is being made in reliance on Rule 144A, and, in each case, in transactions under
Rule 144A and (B) in the case of offers outside the United States, to persons
other than U.S. persons ("non-U.S. purchasers," which term shall include dealers
or other professional fiduciaries in the United States acting on a discretionary
basis for non-U.S. beneficial owners (other than an estate or trust)); provided,
however, that in the case of this clause (B), in purchasing such Notes such
persons are deemed to have represented and agreed as provided under the caption
"Transfer Restrictions" contained in the Final Memorandum (or, if the Final
Memorandum is not in existence, in the most recent Memorandum).
(b) Each of the Initial Purchasers represents, warrants and
covenants (as to itself only) with respect to offers and sales outside the
United States that (i) it has and 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 any Memorandum or any such other
material, in all cases at its own expense; (ii) the Notes have not been and will
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 Act or
pursuant to an exemption from the registration requirements of the Act; and
(iii) it has offered the Notes and will offer and sell the Notes (A) as part of
its distribution at any time and (B) otherwise until 40 days after the later of
the commencement of the offering and the Closing Date, only in accordance with
Rule 903 of Regulation S and, accordingly, neither it nor any persons acting on
its behalf have engaged or will engage in any directed selling efforts (within
the meaning of Regulation S) with respect to the Notes, and any such persons
have complied and will comply with the offering restrictions requirement of
Regulation S.
Terms used in this Section 8 and not defined in this Agreement have
the meanings given to them in Regulation S.
9. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Initial Purchaser, each person, if any, who
controls any Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act and any U.S. affiliate of an Initial Purchaser
against any losses, claims, damages or liabilities to which any Initial
Purchaser or such controlling person may become subject under the Act, the
Exchange Act or otherwise, insofar as any such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue
statement made by the Company in Section 2 hereof;
(ii) any untrue statement or alleged untrue statement
of any material fact contained in any Memorandum or any amendment or
supplement thereto; or
-21-
(iii) the omission or alleged omission to state, in any
Memorandum or any amendment or supplement thereto, a material fact
required to be stated therein or necessary to make the statements therein
not misleading,
and will reimburse, as incurred, the Initial Purchasers and each such
controlling person and such U.S. affiliates for any reasonable legal or other
expenses incurred by the Initial Purchasers or such controlling person in
connection with investigating, defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage, or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in any Memorandum or any amendment or supplement thereto in
reliance upon and in conformity with written information concerning the Initial
Purchasers furnished to the Company by one or more of the Initial Purchasers
specifically for use therein; provided, further, that the Company will not be
liable to any Initial Purchaser or any person controlling such Initial Purchaser
with respect to an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Memorandum that is corrected in the
Final Memorandum (or any amendment or supplement thereto) if the person
asserting any such loss, claim, damage or liability purchased Notes but was not
sent or given a copy of the Final Memorandum (as the same may have been amended
or supplemented) in any case where such delivery of the Final Memorandum (as the
same may have been amended or supplemented) was required by the Act, unless such
failure to deliver the Final Memorandum (as the same may have been amended or
supplemented) was a result of non-compliance by the Company with Section 5(c)
hereof. The indemnity provided for in this Section 9 will be in addition to any
liability that the Company may otherwise have to the indemnified parties. The
Company shall not be liable under this Section 9 for any settlement of any claim
or action effected without its prior written consent, which shall not be
unreasonably withheld.
(b) Each Initial Purchaser, severally and not jointly, agrees to indemnify
and hold harmless the Company, its directors, its officers and each person, if
any, who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Company or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any Memorandum or any amendment or
supplement thereto, or (ii) the omission or the alleged omission to state
therein a material fact required to be stated in any Memorandum or any amendment
or supplement thereto, or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
-22-
in reliance upon and in conformity with written information concerning such
Initial Purchaser, furnished to the Company by any of the Initial Purchasers
specifically for use therein; and subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action in respect thereof. The indemnity provided for in
this Section 9 will be in addition to any liability that the Initial Purchasers
may otherwise have to the indemnified parties. The Initial Purchasers shall not
be liable under this Section 9 for any settlement of any claim or action
effected without their consent, which shall not be unreasonably withheld. The
Company shall not, without the prior written consent of the Initial Purchasers,
effect any settlement or compromise of any pending or threatened proceeding in
respect of which any Initial Purchaser is or could have been a party, or
indemnity could have been sought hereunder by any Initial Purchaser, unless such
settlement (A) includes an unconditional written release of the Initial
Purchasers, in form and substance reasonably satisfactory to the Initial
Purchasers, from all liability on claims that are the subject matter of such
proceeding and (B) does not include any statement as to an admission of fault,
culpability or failure to act by or on behalf of any Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 9, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, promptly notify the indemnifying party of the
commencement thereof in writing; but the omission to so notify the indemnifying
party (i) will not relieve it from any liability under paragraph (a) or (b)
above unless and to the extent such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraphs (a) and
(b) above. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are materially different
from or materially additional to those available to the indemnifying party (it
being understood that, without any limitation as to the defenses which may be
materially different or materially additional, the availability of a due
diligence defense shall be deemed materially different and materially additional
for purposes of this Section 9(c)), or (iii) the indemnifying party shall not
-23-
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after receipt by the
indemnifying party of notice of the institution of such action, then, in each
such case, the indemnifying party shall not have the right to direct the defense
of such action on behalf of such indemnified party or parties and such
indemnified party or parties shall have the right to select separate counsel to
defend such action on behalf of such indemnified party or parties. After notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and approval by such indemnified party of counsel
appointed to defend such action, the indemnifying party will not be liable to
such indemnified party under this Section 9 for any legal or other expenses,
other than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that in connection with such action the indemnifying party shall not be liable
for the expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations or circumstances,
designated by the Initial Purchasers in the case of paragraph (a) of this
Section 9 or the Company in the case of paragraph (b) of this Section 9,
representing the indemnified parties under such paragraph (a) or paragraph (b),
as the case may be, who are parties to such action or actions) or (ii) the
indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party. All fees and
expenses reimbursed pursuant to this paragraph (c) shall be reimbursed as they
are incurred. After such notice from the indemnifying party to such indemnified
party, the indemnifying party will not be liable for the costs and expenses of
any settlement of such action effected by such indemnified party without the
prior written consent of the indemnifying party (which consent shall not be
unreasonably withheld), unless such indemnified party waived in writing its
rights under this Section 9, in which case the indemnified party may effect such
a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 9 is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
-24-
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Company on
the one hand and any Initial Purchaser on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (before deducting
expenses) received by the Company bear to the total discounts and commissions
received by such Initial Purchaser. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand,
or such Initial Purchaser on the other, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company and the Initial
Purchasers agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Initial Purchaser
shall be obligated to make contributions hereunder that in the aggregate exceed
the total discounts, commissions and other compensation received by such Initial
Purchaser under this Agreement, less the aggregate amount of any damages that
such Initial Purchaser has otherwise been required to pay by reason of the
untrue or alleged untrue statements or the omissions or alleged omissions to
state a material fact, and no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) in connection with a matter for
which contribution is otherwise available hereunder shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls an Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Initial Purchasers, and each director of the Company, each officer of the
Company and each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, shall have the same
rights to contribution as the Company.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, its
officers (on behalf of the Company) and the Initial Purchasers set forth in this
Agreement or made by or on behalf of them pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the Company, any of its officers or directors, the Initial
Purchasers or any controlling person referred to in Section 9 hereof and (ii)
delivery of and payment for the Notes. The respective agreements, covenants,
indemnities and other statements set forth in Sections 6, 9, 10 and 15 hereof
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement.
-25-
11. Termination. (a) This Agreement may be terminated in the sole
discretion of the Initial Purchasers by notice to the Company given prior to the
Closing Date if the Company shall have failed, refused or been unable to perform
all obligations and satisfy all conditions on its part to be performed or
satisfied hereunder at or prior thereto (other than as a result of a breach by
the Initial Purchasers of their obligations hereunder) or, if at or prior to the
Closing Date:
(i) any of the Company or the Subsidiaries shall have
sustained any loss or interference with respect to its businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any strike, organized labor
dispute, labor slow down or work stoppage or any legal or governmental
proceeding, which loss or interference, in the sole judgment of the
Initial Purchasers, has had or has a Material Adverse Effect, or there
shall have been, in the sole judgment of the Initial Purchasers, any event
or development that, individually or in the aggregate, has or could be
reasonably likely to have a Material Adverse Effect, except in each case
as described in the Final Memorandum (exclusive of any amendment or
supplement thereto);
(ii) trading in securities of the Company or in securities
generally on the Luxembourg Stock Exchange, New York Stock Exchange,
American Stock Exchange or the NASDAQ National Market shall have been
suspended or materially limited or minimum or maximum prices shall, based
on trading activity, have been implemented on any such exchange or market;
(iii) a banking moratorium shall have been declared by
authorities of the Federal Republic of Germany, the United Kingdom,
Norway, Denmark, New York or the United States or a material disruption in
commercial banking or securities settlement or clearance services in any
member state of the European Union or the United States;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between any member state of the European Union or the United
States and any foreign power, or (B) an outbreak or escalation of any
other insurrection or armed conflict involving the United States or any
other national or international calamity or emergency, or (C) any material
adverse change in the financial markets of any member state of the Federal
Republic of Germany, the United Kingdom, Norway, Denmark, or the United
States which, in the case of (A), (B) or (C) above and in the sole
judgment of the Initial Purchasers, makes it impracticable or inadvisable
to proceed with the offering or the delivery of the Notes as contemplated
by the Final Memorandum; or
-26-
(v) any securities of the Company shall have been downgraded
or placed on any "watch list" for possible downgrading by any nationally
recognized statistical rating organization.
(b)Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by the Initial Purchasers. The statements
set forth in the last paragraph on the front cover page and in the second and
third sentences of the third paragraph under the heading "Private Placement" in
the Final Memorandum (to the extent such statements relate to the Initial
Purchasers) constitute the only information furnished by the Initial Purchasers
to the Company for the purposes of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing and,
if sent to the Initial Purchasers, shall be mailed or delivered to the Initial
Purchasers, c/o Deutsche Bank AG London, 0 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X
0XX, Xxxxxx Xxxxxxx, Attention: Corporate Finance Department, and Dresdner
Kleinwort Xxxxxxxxxxx, 00 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X0XX, Xxxxxx Xxxxxxx,
Attention: Corporate Finance Department; with a copy (which shall not be
considered notice) to Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxx, Esq.; if sent to the Company, shall
be mailed or delivered to the Company at 00000 Xxxxxxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, Attention: Xxxxxx X. Xxxxx; with a copy (which shall not
be considered notice) to Xxxxx Xxxxxxx & Xxxx LLP, 0000 XX Xxxxxx Xxxxx Xxxxx,
Suite 2200, 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000-0000, Attention: Xxxxxxx X.
Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five (5) business
days after being deposited in the mail, postage prepaid, if mailed; and one
business day after being timely delivered to a next-day air courier.
14. Successors. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchasers, the Company and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained; this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the indemnities
of the Company contained in Section 9 of this Agreement shall also be for the
benefit of any person or persons who control the Initial Purchasers within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Initial Purchasers contained in Section 9 of this Agreement
shall also be for the benefit of the directors of the Company, its officers and
-27-
any person or persons who control the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act. No purchaser of Notes from the
Initial Purchasers will be deemed a successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
-28-
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company
and the Initial Purchasers.
Very truly yours,
KRONOS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxx Xx. Wrba
----------------------------
Name: Xxxx Xx. Wrba
Title: Assistant Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
DEUTSCHE BANK AG LONDON
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
DRESDNER BANK AG LONDON BRANCH
By: /s/ X. Xxxxxx
-------------------------------
Name: X. Xxxxxx
Title: Managing Director
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By: /s/ X. Xxxxxx
-------------------------------
Name: X. Xxxxxx
Title: Director
COMMERZBANK AKTIENGESELLSCHAFT, LONDON BRANCH
By:
-------------------------------
Name:
Title:
By: /s/ X. X. Xxxxxx
-------------------------------
Name: X. X. Xxxxxx
Title: Syndicate
SCHEDULE 1
Principal
Amount of
Initial Purchaser Notes
----------------- -----------
Deutsche Bank AG London. ...................... (euro)249,375,000
Dresdner Bank AG London Branch................. (euro) 28,500,000
Commerzbank Aktiengessellschaft,
London Branch.................................. (euro) 7,125,000
-----------
Total................................ (euro)285,000,000
SCHEDULE 2A
Subsidiaries of the Company
Jurisdiction of
Name Incorporation
---- -------------
Kronos Titan GmbH & Co. OHG Germany
Kronos Europe S.A./N.V. Belgium
Kronos Limited United Kingdom
Societe Industrielle Du Titane, S.A. France
Kronos Denmark ApS Denmark
Kronos Norge A/S Norway
Kronos Titan A/S Norway
Titania A/S Norway
SCHEDULE 2B
Other Subsidiaries of the Company
Jurisdiction of
Name Incorporation
---- -------------
Kronos Chemie-GmbH Germany
Kronos Invest A/S Norway
Kronos B.V. The Netherlands
The Jossingfjord Manufacturing Company A/S Norway
Tinfoss Titan & Iron A/S Norway
Kronos World Services, S.A.N.V. Belgium
Unterstuetzungskasse Kronos Titan GmbH Germany
-6-
EXHIBIT A
Form of Opinion of Xxxxx Xxxxxxx & Xxxx LLP
[See Attached]
EXHIBIT B
Form of Opinion of Local Counsel to the Company
-----------------------------------------------
[See Attached]
