1
EXHIBIT 4.4
PREFERENCE STOCK
PURCHASE AGREEMENT
by and among
DAY INTERNATIONAL GROUP, INC.
and
QUANTUM INDUSTRIAL PARTNERS LDC,
SFM DOMESTIC INVESTMENTS LLC,
SGC PARTNERS I LLC,
GREENWICH STREET CAPITAL PARTNERS, L.P.,
TRV EMPLOYEES FUND, L.P.
GREENWICH STREET CAPITAL OFFSHORE FUND, LTD.,
THE TRAVELERS INSURANCE COMPANY,
THE TRAVELERS LIFE AND ANNUITY COMPANY,
UNIONE ITALIANA (U.K.) REINSURANCE COMPANY LIMITED
2
TABLE OF CONTENTS
Page
----
Section 1. Issuance and Sale of the Preference Stock .....................1
1.1. The Purchase ..................................................1
1.2. The Use of Proceeds from the Purchase .........................1
1.3. The Closing ...................................................2
1.4. Actions at the Closing ........................................2
1.5. Deliveries at the Closing .....................................4
Section 2. Representations and Warranties of the Corporation .............4
2.1. Organization and Good Standing; Power and Authority;
Qualifications ................................................5
2.2. Authorization of the Documents ................................5
2.4. Authorization and Issuance of Capital Stock ...................7
2.5. Financial Statements ..........................................7
2.6. Absence of Undisclosed Liabilities ............................8
2.7. Absence of Changes ............................................8
2.8. No Conflict ...................................................8
2.9. Intellectual Property Matters .................................9
2.10. Corporate Minute Books ........................................9
2.11. Environmental Matters .........................................9
2.12. Employee Benefit Plans .......................................10
2.13. Litigation; Orders ...........................................12
2.14. Compliance with Laws; Permits ................................12
2.15. Offering Exemption ...........................................13
2.16. Taxes ........................................................13
2.17. Consents .....................................................14
2.18. Insurance ....................................................15
2.19. Brokers ......................................................15
2.20. Disclosure ...................................................15
2.21. Representations in Xxxx Acquisition Agreement ................15
2.22. Closing Actions ..............................................15
Section 3. Representations and Warranties of Each Investor ..............16
Section 4. Certain Covenants ............................................18
4.1. Access to Records ............................................18
4.2. Financial Reports ............................................18
4.3. Maintenance of Corporate Existence, Etc. .....................20
4.4. Compliance with Laws .........................................20
i
3
4.5. Disclosure of Investment ........................................20
4.6. Compliance with the Certificate of Designation ..................20
Section 5. Survival of Representations, Warranties, Agreements and
Covenants, Etc. .................................................21
Section 6. Expenses ........................................................21
Section 7. Indemnification .................................................21
7.1. General Indemnification .........................................21
7.2. Indemnification Principles ......................................22
7.3. Claim Notice ....................................................23
Section 8. Remedies ........................................................24
Section 9. Further Assurances ..............................................24
Section 10. Successors and Assigns ..........................................24
Section 11. Entire Agreement ................................................24
Section 12. Notices .........................................................25
Section 13. Amendments; Enforcement .........................................27
Section 14. Counterparts ....................................................27
Section 15. Headings ........................................................27
Section 16. Nouns and Pronouns ..............................................27
Section 17. Governing Law ...................................................27
Section 18. Severability ....................................................28
ii
4
Schedules
Schedule 1.4(b) Pro Forma Capitalization
Schedule 2.1 Qualifications in Certain Jurisdictions
Schedule 2.3(a)/(b) Equity Capitalization
Schedule 2.6 Liabilities
Schedule 2.7 Adverse Changes
Schedule 2.11 Environmental Matters
Schedule 2.12/(a)/(d)/(e) Employee Benefits Matters
Schedule 2.13 Litigation
Schedule 2.14 Compliance with Laws, Permits
Schedule 2.16(a)/(c) Taxes
Schedule 2.17 Consents
A copy of the Schedules will be furnished supplementally to the SEC upon
request.
iii
5
Exhibits
Exhibit A Xxxx Acquisition Agreement
Exhibit B Form of Stockholders Agreement
Exhibit C Form of Amendment to Certificate of Incorporation
Exhibit D Form of Certificate of Designation
Exhibit E Form of Corporation Secretary's Certificate
Exhibit F Form of Corporation Officer's Certificate
Exhibit G Form of Opinion of Counsel to the Corporation
Exhibit H Form of Warrant
A copy of the Exhibits will be furnished supplementally to the SEC upon request.
Annexes
Annex I List of Investors
A copy of the Annex will be furnished supplementally to the SEC upon request.
iv
6
INDEX OF DEFINED TERMS
Term Section
---- -------
1995 Indenture........................................................1.4(l)
1998 Indenture........................................................1.4(l)
AA Audited Financial Statements..........................................2.5
Xxxxxxxxx Acquisition......................................................2
Xxxxxxxxx Subsidiary.......................................................2
Benefit Plan.........................................................2.12(a)
By-Laws...............................................................1.4(e)
Certificate of Designation............................................1.4(d)
Certificate of Incorporation..........................................1.4(d)
Claim Notice.............................................................7.3
Class A Common Stock..............................................2.3(a)(ii)
Class B Common Stock..............................................2.3(a)(ii)
Closing..................................................................1.3
Closing Actions..........................................................1.4
Closing Date.............................................................1.3
Code.................................................................2.12(b)
Common Stock......................................................2.3(a)(ii)
Confidential Information................................................3(j)
Conversion Shares.....................................................2.3(b)
Corporation.........................................................Preamble
Credit Agreement......................................................1.4(l)
Day Entity(ies)............................................................2
Day International.....................................................1.4(l)
Debt Documents........................................................1.4(l)
Documents.............................................................1.4(a)
DT Audited Financial Statements..........................................2.5
Employee.............................................................2.12(a)
Employee Agreement...................................................2.12(a)
Environmental Laws......................................................2.11
ERISA................................................................2.12(a)
Existing Options..................................................2.3(a)(ii)
GAAP.....................................................................2.5
Graph Tech...............................................................1.2
Greenwich...........................................................Preamble
Hazardous Substances....................................................2.11
HMO..................................................................2.12(e)
Intellectual Property Rights.............................................2.9
v
7
Investor Indemnitee......................................................7.1
Investor(s).........................................................Preamble
JVTEX....................................................................1.2
Law......................................................................2.8
Litigation..............................................................2.13
Losses...................................................................7.2
Management Options................................................2.3(a)(ii)
Material Adverse Effect..................................................2.7
Preference Stock....................................................Recitals
Purchase.................................................................1.1
Purchase Price...........................................................1.1
Real Property...........................................................2.11
Securities Act..........................................................2.15
Senior Certificate of Designation.....................................1.4(l)
Senior Preferred Stock.............................................2.3(a)(i)
Xxxxx...............................................................Preamble
Stockholders' Agreement...............................................1.4(a)
Tax Return...........................................................2.16(d)
Tax(es)..............................................................2.16(d)
Unaudited Financial Statements...........................................2.5
Xxxx Acquisition.........................................................1.2
Xxxx Acquisition Agreement...............................................1.2
Xxxx Aegis...............................................................1.2
Xxxx Group Companies.....................................................1.2
Xxxx Holdings............................................................1.2
Xxxx Products Co.........................................................1.2
Varnco...................................................................1.2
Warrants..............................................................1.4(j)
vi
8
DAY INTERNATIONAL GROUP, INC.
PREFERENCE STOCK PURCHASE AGREEMENT
AGREEMENT, dated as of October 19, 1999, by and among Day International
Group, Inc., a corporation formed under the laws of the State of Delaware (the
"Corporation"), Quantum Industrial Partners LDC, a Cayman Islands limited
duration company and SFM Domestic Investments LLC, a Delaware limited liability
company (collectively, "Xxxxx"), and SGC Partners I LLC, Greenwich Street
Capital Partners, L.P., TRV Employees Fund, L.P., Greenwich Street Capital
Offshore Fund, Ltd., The Travelers Insurance Company, The Travelers Life and
Annuity Company, and Unione Italiana (U.K.) Reinsurance Company Limited
(collectively, "Greenwich," and together with Xxxxx, the "Investors," each
individually referred to as an "Investor").
W I T N E S S E T H:
WHEREAS, the Corporation wishes to sell to the Investors and the
Investors wish to purchase from the Corporation shares of newly issued 18%
Convertible Cumulative Preference Stock, par value $.01 per share (the
"Preference Stock"), the terms of which will be set forth in the Certificate of
Designation; and a portion of the proceeds from such sale will be used to make
an acquisition, as more particularly described herein.
ACCORDINGLY, the parties hereto hereby agree as follows:
Section 1. ISSUANCE AND SALE OF THE PREFERENCE STOCK.
1.1. THE PURCHASE. At the Closing the Investors shall purchase from the
Corporation, and the Corporation shall sell to the Investors (as set forth on
Annex I hereto), an aggregate of 38,500 shares of the Preference Stock (the
"Purchase") at a purchase price of $1,000 per share and an aggregate purchase
price of $38,500,000 (the "Purchase Price").
1.2. THE USE OF PROCEEDS FROM THE PURCHASE. The Corporation shall use
the proceeds of the Purchase to finance the Xxxxxxxxx Acquisition (as
hereinafter defined) and the acquisition (the "Xxxx Acquisition") of Varnco
Holdings Inc., a New Jersey corporation ("Varnco"), Xxxx Holdings PLC, a company
incorporated under the laws of England ("Xxxx Holdings"), Xxxx Aegis Co. GmbH
Hautschutzsysteme, a company incorporated under the laws of Germany ("Xxxx
Aegis"), Xxxx Products Co., Inc., a Texas corporation ("Xxxx Products Co."), JV
TEX Realty Corp., a Texas corporation ("JVTEX"), Graph Tech, Inc., an Ohio
corporation ("Graph Tech," and collectively with Varnco, Xxxx Holding GmbH, Xxxx
Aegis, Xxxx Products Co. and JVTEX, the "Xxxx
9
Group Companies") pursuant to the Stock Purchase Agreement (the "Xxxx
Acquisition Agreement") among the Corporation and the stockholders of Xxxx Group
Companies identified on the signature pages thereto, substantially in the form
of Exhibit A hereto.
1.3. THE CLOSING. The closing of the transactions contemplated by the
Purchase (the "Closing") shall take place simultaneously with the execution and
delivery of this Agreement at the offices of Simpson, Thacher & Xxxxxxxx, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, on October 19, 1999 or on such
other date as the Corporation and the Investors may mutually determine (such
date, the "Closing Date").
1.4. ACTIONS AT THE CLOSING. Simultaneously with, or prior to, the
execution and delivery of this Agreement, the following actions shall occur (the
"Closing Actions"):
(a) A Stockholders' Agreement (as amended or supplemented from
time to time, the "Stockholders' Agreement," and together with this
Agreement (including the exhibits hereto), the Certificate of
Designation and all certificates, instruments and documents delivered
in connection herewith and therewith, collectively the "Documents"
among the Corporation, the Investors and the stockholders listed on
signature pages thereto, substantially in the form of Exhibit B hereto,
shall be duly executed and delivered by the parties thereto.
(b) The pro forma capitalization of the Corporation as of June
30, 1999 (after giving effect to the issuance and sale of the
Preference Stock) shall be as set forth on Schedule 1.4(b).
(c) Each domestic Day Entity shall deliver to the Investors
long form certificates of good standing from the jurisdictions set
forth on Schedule 2.1 under its name dated as of a date no earlier than
five days prior to the Closing.
(d) The Corporation shall deliver to the Investors a copy of
its amended certificate of incorporation (the "Certificate of
Incorporation" certified by the Secretary of State of the State of
Delaware, which Certificate of Incorporation shall have been duly
amended by the filing of (i) the amendment to the Certificate of
Incorporation, in the form of Exhibit C hereto, and (ii) the
Certificate of Designation on the Preference Stock (the "Certificate of
Designation" in the form of Exhibit D hereto.
(e) The Corporation shall deliver to the Investors a certified
copy of its by-laws (the "By-Laws".
2
10
(f) The Corporation shall deliver to the Investors a
certificate executed by its Secretary, substantially in the form of
Exhibit E hereto, certifying (i) resolutions authorizing the
transactions contemplated in the Documents and (ii) incumbency matters.
(g) The Corporation shall deliver to the Investor a
certificate executed by its duly authorized officer certifying as to
the matters set forth in Exhibit F hereto.
(h) The Investors shall receive from Debevoise & Xxxxxxxx,
special counsel for the Corporation, an opinion addressed to the
Investors, dated as of the Closing, satisfactory in form and substance
to the Investors, which shall include the opinions set forth in Exhibit
G hereto.
(i) Xxxxx Xxxxxxx shall have been elected to the board of
directors of the Corporation and shall hold such position as of the
Closing Date.
(j) The Corporation shall have reserved for issuance 8,848.7
shares of Common Stock issuable upon (i) conversion of the Preference
Stock under the circumstances provided in the Certificate of
Designation and (ii) exercise of warrants (the "Warrants") in the form
of Exhibit H hereto which will be issued when and as provided in the
Certificate of Designation, under the circumstances described therein
and in the Certificate of Designation.
(k) Each of the representations and warranties of the
Corporation in this Agreement and in each of the other Documents shall
be true and correct in all material respects when made and on or as of
the Closing Date as if made on and as of the Closing Date (unless
stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct as of such
earlier date).
(l) Each Day Entity shall have performed and complied with all
agreements and conditions contained in this Agreement and each of the
other Documents required to be performed or complied with by it prior
to or at the Closing and, after giving effect to the issue and sale of
the Preference Stock (and the application of the proceeds thereof as
contemplated by Section 1.2), no default shall have occurred under the
Documents and no default or event of default shall have occurred and be
continuing under any of the following: (i) Amended and Restated Senior
Secured Credit Agreement, dated as of the date hereof, among the
Corporation, several banks and other financial institutions or entities
from time to time parties thereto as lenders, Societe Generale, as
administrative agent and SG-Xxxxx Securities Corporation as arranger
(as amended or supplemented from time to time, the "Credit Agreement");
(ii) Indenture, dated as of June 6, 1995, among the Corporation, Day
International,
3
11
Inc., a Delaware corporation ("Day International"), as guarantor, and
American National Association, as trustee (as amended or supplemented
from time to time, the "1995 Indenture"); (iii) Indenture, dated March
18, 1998, between the Corporation, Day International and The Bank of
New York, as trustee (as amended or supplemented from time to time, the
"1998 Indenture"; and (iv) Certificate of Designation for the Senior
Preferred Stock (as amended or supplemented from time to time, the
"Senior Certificate of Designation," and together with the Credit
Agreement, the 1995 Indenture, the 1998 Indenture and the Exchange
Debenture Indenture, dated as of March 18, 1998, between the
Corporation, Day International and The Bank of New York, as trustee, as
amended or supplemented from time to time, the "Debt Documents").
(m) All consents, authorizations and filings, if any, required
in connection with the execution, delivery and performance by each Day
Entity, of the Documents to which it is a party (including any consents
under the Debt Documents) shall have been obtained or made and shall be
in full force and effect, except for such consents, authorizations and
filings the failure of which to obtain or make, individually or in the
aggregate, could not reasonably be expected to, have a Material Adverse
Effect.
(n) The Xxxx Acquisition shall have been consummated, or shall
be consummated contemporaneously with the Closing, in accordance with
the Xxxx Acquisition Agreement.
1.5. DELIVERIES AT THE CLOSING. At the Closing, the Corporation shall
deliver to each Investor a certificate or certificates representing the shares
of Preference Stock purchased by such Investor, registered in the name of such
Investor or its nominee, against receipt at the Closing by the Corporation from
the Investors of the Purchase Price, which shall be paid by wire transfer to an
account designated at least one business day prior to the Closing Date by the
Corporation.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION. The
Corporation hereby represents and warrants to the Investors as follows (each of
the Corporation, direct and indirect subsidiaries of the Corporation (excluding
those acquired in the Xxxx Acquisition and in the acquisition by the Corporation
of certain assets and a subsidiary (the "Xxxxxxxxx Subsidiary") of Xxxxxxxxx
World Industries, Inc., a Pennsylvania corporation, as set forth in the Purchase
Agreement, dated as of July 29, 1999, among the Corporation, Xxxxxxxxx World
Industries, Inc. and Xxxxxxxxx World Industries GmbH (the "Xxxxxxxxx
Acquisition")) and Day International, a "Day Entity" each and collectively, the
"Day Entities"):
4
12
2.1. ORGANIZATION AND GOOD STANDING; POWER AND AUTHORITY;
QUALIFICATIONS. Each Day Entity (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) has all requisite corporate power and authority to own,
lease and operate its properties, to carry on its business as presently
conducted and as proposed to be conducted. The Corporation has all requisite
corporate power and authority to enter into and carry out the transactions
contemplated by the Documents. Except as set forth on Schedule 2.1, each Day
Entity is qualified to transact business as a foreign corporation in, and is in
good standing under the laws of, those jurisdictions listed on Schedule 2.1
under its name, which jurisdictions constitute all of the jurisdictions wherein
the character of the property owned or leased or the nature of the activities
conducted by it makes such qualification necessary, except where the failure to
so qualify would not reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Effect.
2.2. AUTHORIZATION OF THE DOCUMENTS. The execution, delivery and
performance of each of the Documents has been duly authorized by all requisite
corporate action on the part of the Corporation, and each of the Documents
constitutes a legal, valid and binding obligation of the Corporation,
enforceable against the Corporation in accordance with its terms, except to the
extent that enforceability may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights generally and equitable principles
generally.
2.3. CAPITALIZATION. (a) As of the date hereof, the capitalization of
the Corporation consists of, and immediately prior to the Closing, will consist
of:
(i) PREFERRED STOCK. (A) 105,000 shares of 12 1/4% Senior
Exchangeable Preferred Stock, par value $.01 per share ("Senior
Preferred Stock"), of which 41,944.216 shares are outstanding and (B)
500,000 shares of Cumulative Preference Stock, par value $.01 per
share, to be designated prior to the Closing, of which no shares of
Preference Stock will be issued and outstanding prior to the issuance
of 38,500 shares of Preference Stock at the Closing.
(ii) COMMON STOCK. (A) 200,000 shares of Class A Voting Common
Stock of the Corporation, par value $.01 per share ("Class A Common
Stock"), of which (x) 19,520.5 shares of Class A Common Stock are
outstanding, and all such shares have been validly issued and are fully
paid and nonassessable, with no personal liability attaching to the
ownership thereof, (y) 9,167.5 shares of Class A Common Stock have been
duly reserved for issuance upon the exercise of certain options granted
to persons as set forth on Schedule 2.3(a) which options have the
exercise price as set forth on Schedule 2.3(a) ("Existing Options") and
(z) 1,564 shares of Class A Common Stock have been duly reserved for
issuance upon the exercise of certain options to be granted to certain
employees, which options have not yet been
5
13
granted ("Management Options"), and (B) 50,000 shares of Class B
Nonvoting Common Stock of the Corporation, par value $.01 per share
("Class B Common Stock," and together with Class A Common Stock,
"Common Stock"), of which (x) 3,777.5 shares of Class B Common Stock
are outstanding, and all such shares have been validly issued and are
fully paid and nonassessable, with no personal liability attaching to
the ownership thereof, (y) 0 shares of Class B Common Stock have been
duly reserved for issuance upon the exercise of Existing Options and
(z) 0 shares of Class B Common Stock have been duly reserved for
issuance upon the exercise of Management Options.
(b) Immediately after the Purchase, the capitalization of the
Corporation will be as set forth in Section 2.3(a), with (i) 38,500
shares of Preference Stock outstanding; (ii) 41,944.216 shares of the
Senior Preferred Stock outstanding; (iii) 19,520.5 shares of Class A
Common Stock and 3,777.5 shares of Class B Common Stock outstanding;
(iv) 10,657.5 shares of Class A Common Stock and 0 shares of Class B
Common Stock reserved for issuance upon exercise of Existing Options
and Management Options as set forth in Section 2.3(a)(ii); and (v)
7,348.7 shares of Class A Common Stock and 0 shares of Class B Common
Stock reserved for issuance upon the conversion of the Preference Stock
and Warrants (if and when issued) (the "Conversion Shares").
Except as set forth above, there will be no equity securities of the
Corporation outstanding immediately following the Closing. Schedule 2.3(a)
contains a list of all outstanding warrants, options, agreements, convertible
securities or other commitments pursuant to which the Corporation is or may
become obligated to issue any shares of the capital stock or other securities of
the Corporation, which names all persons entitled of record to receive such
shares or other securities, the shares of capital stock or other securities
required to be issued thereunder as of the date hereof and the price per share,
if any, payable with respect to the issuance of any share of capital stock
issuable thereunder. Except as set forth on Schedule 2.3(b) or as contemplated
by the Documents there are, and immediately after the Closing, there will be, no
rights, including preemptive or similar rights, to purchase or otherwise acquire
shares or sell or otherwise transfer shares of the capital stock of the
Corporation pursuant to any provision of law, the Certificate of Incorporation,
the By-Laws, any agreement to which the Corporation is a party, and, except as
set forth on Schedule 2.3(b) or as contemplated by the Documents, the
Corporation is not a party to, and to the best knowledge of the Corporation,
there are, and immediately after the Closing, there will be, no agreement,
restriction or encumbrance (such as a right of first refusal, right of first
offer, proxy, voting agreement, voting trust, registration rights agreement,
stockholders' agreement, etc., whether or not the Corporation is a party
thereto) with respect to the purchase, sale or voting of any shares of capital
stock of the Corporation (whether outstanding or issuable upon conversion or
6
14
exercise of outstanding securities). Except as set forth on Schedule 2.3(b) or
as contemplated by the Documents or except for the right to vote its shares of
Common Stock for the election of directors, no person has the right to nominate
or elect one or more directors of the Corporation.
2.4. AUTHORIZATION AND ISSUANCE OF CAPITAL STOCK. The authorization,
issuance, sale and delivery of the Preference Stock pursuant to this Agreement
and the authorization, reservation, issuance, sale and delivery of the Warrants
and the Conversion Shares have been or will be duly authorized by all requisite
corporate action on the part of the Corporation, and when and if issued, sold
and delivered in accordance with this Agreement, the Preference Stock will be,
and when issued and delivered in accordance with the Certificate of Designation,
the Warrants and the Conversion Shares will be, validly issued and outstanding,
fully paid and nonassessable with no personal liability attaching to the
ownership thereof, free of any Encumbrances and not subject to preemptive or
similar rights of the stockholders of the Corporation or others. The terms,
designations, powers, preferences and relative, participating, optional and
other special rights, and the qualifications, limitations and restrictions, of
Preference Stock are as stated in the Certificate of Designation and the
Certificate of Incorporation.
2.5. FINANCIAL STATEMENTS. The Corporation has furnished to the
Investors (a) the audited consolidated balance sheet at December 31, 1998, and
the related consolidated statements of income, retained earnings and cash flows
for the fiscal year ended December 31, 1998 of the Day Entities (the "AA Audited
Financial Statements") and an opinion of Xxxxxx Xxxxxxxx LLP to the Corporation
to the effect that such consolidated financial statements present fairly, in all
material respects, the financial position of the Day Entities at December 31,
1998, and the results of their operations and cash flows for the year then ended
in conformity with generally accepted accounting principles as in effect from
time to time in the United States of America ("GAAP"), consistently applied,
which opinion contained no qualification; (b) the audited consolidated balance
sheets at December 31, 1997 and the related consolidated statements of income,
retained earnings and cash flows of the Day Entities (the "DT Audited Financial
Statements"), together with the opinion of Deloitte & Touche LLP to the effect
that such consolidated financial statements present fairly, in all material
respects, the financial position of the Day Entities at December 31, 1997, and
the results of their operations and cash flows for the years then ended in
conformity with GAAP, consistently applied, which opinion contained no
qualification; and (c) the unaudited consolidated balance sheets at March 31,
1999 and June 30, 1999, and the related consolidated statements of income,
retained earnings and cash flows for the fiscal periods then ended of the Day
Entities (the "Unaudited Financial Statements"). The AA Audited Financial
Statements, the DT Audited Financial Statements and the Unaudited Financial
Statements (i) are in accordance with the books and records of the Day Entities;
(ii) have been prepared in accordance with
7
15
GAAP consistently applied except, in the case of the Unaudited Financial
Statements, as to year-end adjustments and the absence of footnotes; and (iii)
fairly present in all material respects the financial position of the Day
Entities at the fiscal periods referred to therein, and the results of their
operations and their cash flows for the fiscal periods then ended in conformity
with GAAP, consistently applied.
2.6. ABSENCE OF UNDISCLOSED LIABILITIES. Except as disclosed on
Schedule 2.6, no Day Entity has any liabilities or obligations (whether accrued,
absolute, contingent, unliquidated or otherwise, whether due or to become due)
other than (a) liabilities or obligations reserved against or otherwise
disclosed in the AA Audited Financial Statements and the Unaudited Financial
Statements and (b) liabilities or obligations arising since June 30, 1999 which
were incurred in the ordinary course of business consistent (in amount and kind)
with past practice (none of which is a liability resulting from breach of
contract, breach of warranty, tort, infringement claim or lawsuit) and which do
not, individually or in the aggregate, exceed $100,000.
2.7. ABSENCE OF CHANGES. Except as set forth on Schedule 2.7 and except
for the Xxxx Acquisition, the Xxxxxxxxx Acquisition and the execution and
delivery of the Credit Agreement and the execution and delivery of the Documents
and the transactions contemplated hereby and thereby, or referred to herein or
therein, since June 30, 1999, each Day Entity has conducted its business in the
ordinary course, consistent with past practice, and there has not been (a) any
material adverse change having, or any event or condition which, individually or
in the aggregate, has had, or would reasonably be expected to have, a material
adverse effect on the business, properties, assets, condition (financial or
other), prospects or results of operations of the Day Entities taken as a whole
(a "Material Adverse Effect"), (b) any indebtedness incurred for borrowed money
other than in the ordinary course of business or pursuant to any Debt Document,
(c) any amendment to or termination of any Debt Document, or (d) any agreement
or commitment (contingent or otherwise) to do any of the foregoing.
2.8. NO CONFLICT. The execution, delivery and performance by the
Corporation of the Documents and the consummation by the Corporation of the
transactions contemplated hereby and thereby, and the issuance, sale and
delivery by the Corporation of the Preference Stock, and the issuance and
delivery of the Warrants in accordance with the terms thereof and the
Certificate of Designation and the Conversion Shares in accordance with the
Certificate of Designation, by the Corporation will not (a) to the best
knowledge of the Corporation, violate any provision of law, statute, rule or
regulation, or any ruling, writ, injunction, order, judgment or decree of any
court, administrative agency or other governmental body ("Law") applicable to
any of the Day Entities, or any of their properties or assets, (b) except as set
forth on Schedule 2.17, conflict with or result in any breach of any of the
terms, conditions or provisions of, or constitute (with due notice or
8
16
lapse of time, or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, or result in the creation of any
Encumbrance upon any of the properties or assets of any of the Day Entities
under, any Debt Document or (c) violate the Certificate of Incorporation or the
By-Laws or a certificate of incorporation or by-laws of any of the Day Entities.
2.9. INTELLECTUAL PROPERTY MATTERS. Each Day Entity owns or has the
right to use, pursuant to license, sublicense, contract or permission, all of
the Intellectual Property Rights used in the operation of the business of such
Day Entity as currently conducted and as currently proposed to be conducted,
except for those the failure to own or have such legal right to use would not
reasonably be expected to have a Material Adverse Effect, and all such
Intellectual Property Rights will be owned or available for use by such Day
Entity on identical terms and conditions immediately subsequent to the Closing.
"Intellectual Property Rights" means, (a) all patent rights and all
right, title and interest in and to all letters patent and applications for
letters patent, industrial models, industrial designs, xxxxx patents, patents of
importation, utility models, certificates of invention and other government
issued or granted indicia of invention ownership including any reissue,
division, continuation or continuation-in-part applications throughout the
world; (b) all rights, title and interest in and to all trade secrets and trade
secret rights arising under any Law (including common law); (c) all copyright
rights, and all other author rights whether or not copyrightable; and all
rights, title and interest in and to all copyrights, copyright registrations,
certificates of copyright and copyrighted interests throughout the world; (d)
all rights, title and interest in and to all know-how and show-how whether or
not protectable by patent, copyright or trade secret law, or as a registered
mask work; and (e) all trademarks, trade names and service marks, whether
registered or arising under the common law or any other Law, and all
registrations thereof and interests therein throughout the world.
2.10. CORPORATE MINUTE BOOKS. The corporate records of each Day Entity
are true and complete and accurately reflect all meetings of and resolutions of,
or written consents by, the shareholders or board of directors (or committee
thereof) of such Day Entity since the day of corporate organization. The
Corporation has made available to the Investors true and correct copies of all
minutes of meetings or other actions by the directors, stockholders or
incorporators of each of the Day Entities since their respective inceptions.
2.11. ENVIRONMENTAL MATTERS. Except as set forth on Schedule 2.11, the
Day Entities are conducting, and have conducted, their business in material
compliance with all applicable Environmental Laws. Hazardous Substances have not
been transported or disposed of from any of the material real property presently
owned or leased by it (the
9
17
"Real Property") in violation of, or in a manner or to a location which could
give rise to liability under, applicable Environmental Law, nor have any
Hazardous Substances been generated, treated, stored or disposed of at, on or
under any of the Real Property in violation of, or in a manner that could give
rise to liability under, any applicable Environmental Law, except insofar as
any such violation or liability referred to in this paragraph, or any
aggregation thereof, would not reasonably be expected to result in a Material
Adverse Effect. The Corporation has received no notice of any past or present
conditions, events, circumstances, facts, activities, practices, incidents,
actions, omissions, or plans that can reasonably be expected to form the basis
of any claim, action, suit, proceeding, hearing, investigation, or inquiry
against or involving any Day Entity allegedly or actually based on or related
to any violation of any Environmental Law that would reasonably be expected to
result in a Material Adverse Effect. For purposes of this Agreement, the term
"Environmental Laws" shall mean any federal, state or local law, ordinance,
rule or regulation, in effect and as amended as of the date of this Agreement,
relating to human health, employee safety or the protection of the environment,
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. sec. 9601 ET SEQ., the
Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. sec.
11001, ET SEQ., the Resource Conversation and Recovery Act, 42 U.S.C. sec. 6901
ET SEQ., and the Occupational Health and Safety Act 29 U.S.C. sec. 641 ET SEQ.
For purposes of this Agreement, the term "Hazardous Substances" shall include
all substances, products or materials (including, without limitation,
asbestos-containing materials, petroleum or any by-products thereof) classified
as hazardous or toxic under any applicable Environmental Laws.
2.12. EMPLOYEE BENEFIT PLANS. (a) Schedule 2.12(a) hereto contains a
true and complete list of (i) each plan, program, policy, payroll practice,
contract, agreement or other arrangement providing for compensation, severance,
termination pay, performance awards, stock or stock-related awards, fringe
benefits or other material employee benefits of any kind, whether formal or
informal, funded or unfunded, written or oral and whether or not legally
binding, which is now or previously has been sponsored, maintained, contributed
to or required to be contributed to by any Day Entity or pursuant to which any
Day Entity has any liability, contingent or otherwise, including, but not
limited to, any "employee benefit plan" within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA") (each
a "Benefit Plan"); (ii) each management, bonus, option, equity (or equity
related), severance, non-compete, confidentiality or similar agreement or
contract between the Corporation and any current, former or retired employee,
officer, consultant, independent contractor, agent or director of any Day Entity
(an "Employee"); and (iii) each employment or consulting agreement or contract
between the Corporation and an Employee; PROVIDED, HOWEVER, that for scheduling
purposes only, the only Employee Agreements required to be listed pursuant to
clause (iii) shall be those Employee Agreements between the Corporation and an
10
18
Employee who earns annual compensation in excess of $100,000 (each agreement in
clauses (ii) and (iii), an "Employee Agreement"). None of the Day Entities
currently sponsors, maintains, contributes to, nor is required to contribute to,
nor has any Day Entity during the preceding six years sponsored, maintained,
contributed to or been required to contribute to, or incurred any liability to,
(i) any "defined benefit plan" (as defined in ERISA Section 3(35)); or (ii) any
"multiemployer plan" (as defined in ERISA Section 3(37)). Except as set forth on
Schedule 2.12(a), none of the Day Entities has any plan or commitment, whether
legally binding or not, (i) to establish any new Benefit Plan, or to modify or
terminate any Benefit Plan or (ii) to enter into, modify or terminate any
Employee Agreement with any Employee who earns more than $100,000 annually.
(b) None of the Day Entities is (i) a member of a "controlled group of
corporations," under "common control" or an "affiliated service group" within
the meaning of Sections 414(b), (c) or (m) of the Internal Revenue Code, as
amended (the "Code"), (ii) required to be aggregated under Section 414(o) of the
Code, or (iii) under "common control," within the meaning of Section 4001(a)(14)
of ERISA, or any regulations promulgated or proposed under any of the foregoing
Sections, in each case with any other entity other than the remaining Day
Entities.
(c) The Corporation has made available to the Investors current,
accurate and complete copies of all documents embodying or relating to each
Benefit Plan and each Employee Agreement, including all amendments thereto,
interpretations thereof, trust or funding agreements relating thereto (if any),
the two most recent annual reports (Series 5500 and related schedules) required
under ERISA (if any), the most recent determination letter received from the IRS
(if any), the most recent summary plan description (with all material
modifications) (if any), and all material communications to any Employee or
Employees relating to any Benefit Plan or Employee Agreement required to be
listed on Schedule 2.12(a).
(d) Except as set forth on Schedule 2.12(d), each Benefit Plan has been
established and maintained in accordance with its terms and in compliance in all
material respects with all applicable, laws, statutes, orders, rules and
regulations, including but not limited to ERISA and the Code, and each Benefit
Plan intended to qualify under Section 401 of the Code is, and since its
inception has been, so qualified.
(e) No "prohibited transaction," within the meaning of Section 4975 of
the Code or Section 406 of ERISA, has occurred with respect to any Benefit Plan.
Except as set forth on Schedule 2.12(e), there are no actions, proceedings,
suits or claims pending, or to the best knowledge of the Corporation, threatened
or anticipated (other than routine claims for benefits) with respect to any
Benefit Plan or Employee Agreement. No Employee has been hired by any of the Day
Entities in violation of any restrictive covenant
11
19
or any non-compete agreement with any other person. No liability under any
Benefit Plan has been funded nor has any such obligation been satisfied with the
purchase of a contract from an insurance company as to which the Corporation has
received notice that such insurance company is insolvent or is in rehabilitation
or any similar proceeding. No Benefit Plan is under audit or investigation by
the IRS, the Department of Labor or the Pension Benefit Guarantee Corporation,
and, to the knowledge of the Corporation, no such audit or investigation is
pending or has been threatened. With respect to each Benefit Plan which is an
employee welfare benefit plan (within the meaning of Section 3(1) of ERISA), all
claims incurred by the Corporation are (i) insured pursuant to a contract of
insurance whereby the insurance company bears any risk of loss with respect to
such claims; (ii) covered under a contract with a health maintenance
organization (an "HMO" ) pursuant to which the HMO bears the liability for
claims, or (iii) reflected as a liability or accrued for on the AA Audited
Financial Statements.
(f) The execution of, and performance of the transactions contemplated
in this Agreement will not (either alone or upon the occurrence of any
additional or subsequent events) (i) constitute an event under any Benefit Plan
or Employee Agreement that will or may result in any payment (whether of
severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting,
distribution, increase in benefits or obligations to fund benefits with respect
to any Employee or (ii) result in the triggering or imposition of any
restrictions or limitations on the right of any Day Entity to amend or terminate
any Benefit Plan and receive the full amount of any excess assets remaining or
resulting from such amendment or termination. No payment or benefit which will
or may be made by any Day Entity or any of their respective affiliates with
respect to any Employee may be characterized as an "excess parachute payment,"
within the meaning of Section 280G(b)(1) of the Code.
2.13. LITIGATION; ORDERS. Except as set forth on Schedule 2.13, there
is no civil, criminal or administrative action, suit, claim, notice, hearing,
examination, inquiry, proceeding or investigation at law or in equity or by or
before any court, arbitrator or similar panel, governmental instrumentality or
other agency ("Litigation") now in progress or pending or, to the best knowledge
of the Corporation, threatened against any Day Entity or the assets (including
the Intellectual Property Rights) or the business of any Day Entity that could
reasonably be expected to result, either individually or in the aggregate, in a
Material Adverse Effect.
2.14. COMPLIANCE WITH LAWS; PERMITS. To the best knowledge of the
Corporation, except as provided on Schedule 2.14, each Day Entity (a) has
complied in all material respects with all material federal, state, local and
foreign laws, rules, ordinances, codes, consents, authorizations, registrations,
regulations, decrees, directives, judgments and orders applicable to it and its
business and (b) has all federal, state, local and foreign
12
20
governmental licenses, permits and qualifications material to and necessary in
the conduct of its business as currently conducted, such licenses, permits and
qualifications are in full force and effect, and no violations have been
recorded in respect of any such licenses, permits and qualifications, and no
proceeding is pending or, to the best knowledge of the Corporation, currently
threatened to revoke or limit any such license, permit or qualification.
2.15. OFFERING EXEMPTION. Assuming the accuracy of the representations
and warranties made by the Investors in Section 3, the offer and sale of the
Preference Stock as contemplated hereby, the issuance and delivery of the
Warrants and the Conversion Shares to the Investors upon the conversion of the
Preference Stock in accordance with the terms of the Certificate of Designation,
and all prior issuances of securities of the Corporation are each exempt from
registration under the Securities Act of 1933, as amended (the "Securities Act")
and under applicable state securities and "blue sky" laws, as currently in
effect. The Corporation has not offered any of its capital stock, or any other
securities, for sale to, or solicited any offers to buy any of the foregoing
from the Investors, or otherwise approached or negotiated with any other person
in respect thereof, in such a manner as to require registration under the
Securities Act.
2.16. TAXES. (a) Except as set forth on Schedule 2.16(a): (i) each Day
Entity has timely filed in accordance with all applicable laws (taking into
account valid extensions) all material Tax Returns required to be filed by it,
and all such Tax Returns are true, correct and complete in all material
respects; (ii) each Day Entity has timely paid all Taxes shown as due and
payable on such Tax Returns and all other material Taxes due and owing by it
(whether or not shown on a Tax Return) on or prior to the date hereof,
including, without limitation, any Taxes levied upon any of its properties,
assets, income or franchises; (iii) all amounts required to be collected or
withheld by each Day Entity have been collected or withheld and any such amounts
that are required to be remitted to any taxing authority have been or will be
duly and timely remitted by each Day Entity; (iv) no examination, investigation,
audit, claim, assessment, deficiency or administrative or judicial proceeding is
in progress, pending or currently proposed in writing, in each case with regard
to any Taxes or Tax Returns of any Day Entity; (v) no taxing authority in a
jurisdiction where a Day Entity or any shareholder of such Day Entity does not
file Tax Returns has made a claim, assertion or threat that such non-filing
entity or shareholder is or may be subject to taxation by such jurisdiction;
(vi) none of the Day Entities is a party to or bound by any Tax sharing or Tax
allocation or similar agreement or arrangement; and (vii) all federal income Tax
Returns of any Day Entity with respect to taxable periods through the year ended
December 31, 1994 have been examined and closed or are Tax Returns with respect
to which the applicable statute of limitations has expired without extension or
waiver.
13
21
(b) Appropriate accruals and reserves for Taxes have been
established in accordance with GAAP on the balance sheets referenced in Section
2.5 for periods through the date of such balance sheets.
(c) Except as set forth on Schedule 2.16(c) or as contemplated by
Section 4.12 of this Agreement, there are no rulings, request for rulings,
closing agreements, adjustments pursuant to section 481(a) of the Code (or
analogous provisions of state or local law), or dispositions of property being
accounted for under the installment method pursuant to section 453 of the Code
(or analogous provisions of state or local law) related to any Day Entity which
could affect any Day Entity's liability for Taxes for any taxable period or
portion thereof beginning on or after the Closing Date.
(d) For purposes of this Agreement, "Tax" or "Taxes" means any
taxes, assessment, duties, fees, levies, imposts, deductions, or withholdings
including, without limitation, income, gross receipts, ad valorem, value added,
excise, real or personal property, asset, sales, use, license, payroll,
transaction, capital, net worth and franchise taxes, estimated taxes,
withholding, employment, social security, workers compensation, utility,
severance, production, unemployment compensation, occupation, premium, windfall
profits, transfer and gains taxes, or other governmental charges of any nature
whatsoever, imposed by any taxing authority of any government or country or
political subdivision of any country, and any liabilities with respect thereto,
including any penalties, additions to tax, fines or interest thereon, and "Tax
Return" means any report, return, statement, estimate, declaration, notice, form
or other information required to be supplied to a taxing authority in connection
with Taxes. For purposes of this Section 2.16, the term Day Entities shall
include any corporation or similar entity of which any of the Day Entities is a
successor by merger, liquidation or otherwise.
(e) Based on the provisions of the Code and the Treasury
regulations promulgated thereunder, and administrative and judicial
interpretations of each, all as in effect as of the Closing Date, the
Corporation does not intend to withhold any U.S. federal Tax on any payment to
or on behalf of a holder or beneficial owner of shares of Preference Stock in
connection with any redemption of such shares.
2.17. CONSENTS. Subject to compliance with the Securities Act and
any applicable state securities laws, the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the filing of the amendment to the
Corporation's Certificate of Incorporation and the Certificate of Designation
with the Secretary of State of the State of Delaware, except as set forth on
Schedule 2.17, no permit, authorization, consent or approval of or by, or any
notification of or filing with any person (governmental or private) is required
in connection with the execution, delivery and performance by the Corporation of
the Documents or any documentation relating thereto, the consummation
14
22
by the Corporation of the transactions contemplated hereby or thereby, or the
issuance, sale or delivery of the Preference Stock, the Warrants and the
Conversion Shares.
2.18. INSURANCE. All of the material assets of each Day Entity
that are of insurable character are covered by insurance with reputable insurers
against risks of liability, casualty and fire and other losses and liabilities
customarily obtained to cover comparable businesses and assets in amounts, scope
and coverage which are consistent with prudent industry practice.
2.19. BROKERS. No Day Entity nor any of their respective officers,
directors, employees or stockholders has employed any broker or finder in
connection with the transactions with the Investors contemplated by this
Agreement.
2.20. DISCLOSURE. Neither this Agreement nor any certificate,
instrument or written statement furnished or made to any of the Investors by or
on behalf of any Day Entity pursuant to this Agreement for use in connection
with the transactions contemplated by this Agreement, contains as of the Closing
Date any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained herein and therein not
misleading in light of the circumstances in which such statements were made. The
projections and PRO FORMA financial information contained in the materials
referenced above are based upon good faith estimates and assumptions believed by
management of the Corporation to be reasonable at the time made, it being
recognized by each Investor that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount.
2.21. REPRESENTATIONS IN XXXX ACQUISITION AGREEMENT. To the best
knowledge of the Corporation, all representations by or on behalf of the Xxxx
Group Companies set forth in the Xxxx Acquisition Agreement are true and correct
in all material respects; PROVIDED, HOWEVER, that Xxxx Products Co. GmbH is a
party to a lease agreement for a site at Willich-Munchelde, Germany which was
reflected as an operating lease in the financial statements of Xxxx Group
Companies and should properly have been reflected as a capital lease obligation;
the capital lease should have been reflected as a lien and encumbrance on
Schedule 4.7 of the Xxxx Acquisition Agreement and should also have been
appropriately reflected on Schedules 4.8(a) (Owned Real Property) and 4.8(b)
(Real Property Leases) of the Xxxx Acquisition Agreement.
2.22. CLOSING ACTIONS. Subject to the execution and delivery of
the Documents, the Closing Actions have been completed.
15
23
Section 3. REPRESENTATIONS AND WARRANTIES OF EACH INVESTOR. Each
Investor represents and warrants to the Corporation as of the date hereof as
follows:
(a) Such Investor is acquiring the Preference Stock to be
purchased by it under this Agreement for its own account, for
investment and not with a view to the distribution thereof within the
meaning of the Securities Act.
(b) Such Investor understands that (i) the Preference Stock
have not been, and the Conversion Shares will not be, registered under
the Securities Act or any state securities laws, by reason of their
issuance by the Corporation in a transaction exempt from the
registration requirements thereof and (ii) the Preference Stock and the
Conversion Shares may not be sold unless such disposition is registered
under the Securities Act and applicable state securities laws or is
exempt from regulation thereunder.
(c) Such Investor has substantial experience in evaluating and
investing in private placement transactions of securities in companies
similar to the Corporation so that it is capable of evaluating the
merits and risks of its investment in the Corporation and has the
capacity to protect its own interests. Such Investor must bear the
economic risk of this investment indefinitely unless the Preference
Stock is registered pursuant to the Securities Act or an exemption from
registration is available. Such Investor also understands that there is
no assurance that any exemption from registration under the Securities
Act will be available and that, even if available, such exemption may
not allow such Investor to transfer all or any portion of the
Preference Stock under the circumstances, in the amounts or at the
times such Investor might propose.
(d) Such Investor represents that, by reason of its, or its
management's, business or financial experience, such Investor has the
capacity to protect its interests in connection with the transactions
contemplated in this Agreement.
(e) Such Investor further understands that the exemption from
registration afforded by Rule 144 (the provisions of which are known to
the Investor) promulgated under the Securities Act depends on the
satisfaction of various conditions, and that, if applicable, Rule 144
may afford the basis for sales only in limited amounts.
(f) Such Investor has not employed any broker or finder in
connection with the transactions contemplated by this Agreement.
16
24
(g) Such Investor is an "Accredited Investor" (as defined in
Rule 501(a) under the Securities Act).
(h) Such Investor has had an opportunity to discuss the
Corporation's business, management and financial affairs with
directors, officers and management of the Corporation and has had the
opportunity to review the Corporation's operations and facilities. Such
Investor has also had the opportunity to ask questions of, and receive
answers from, the Corporation and its management regarding the terms
and conditions of this investment.
(i) Such Investor is duly organized and validly existing under
the laws of the state of its organization and has all power and
authority to enter into and perform the Documents. Each of the
Documents has been duly authorized by all necessary action on the part
of such Investor. Each of the Documents constitutes a valid and binding
agreement of such Investor enforceable against such Investor in
accordance with its terms except to the extent that enforceability may
be limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights generally.
(j) For the purposes of this Section 3(j), "Confidential
Information" means information delivered to any Investor by or on
behalf of the Corporation, any Day Entity, the Xxxxxxxxx Subsidiary or
any Xxxx Group Company in connection with the transactions contemplated
by or otherwise pursuant to this Agreement that is proprietary in
nature and that was clearly marked or labeled or otherwise adequately
identified when received by such Investor as being confidential
information of the Corporation, such Day Entity, the Xxxxxxxxx
Subsidiary or any Xxxx Group Company; PROVIDED that such term does not
include information that (i) was publicly known or otherwise known to
such Investor prior to the time of such disclosure, (ii) subsequently
becomes publicly known through no act or omission by such Investor or
any person acting on its behalf, (iii) otherwise becomes known to such
Investor other than through disclosure by the Corporation, any Day
Entity, the Xxxxxxxxx Subsidiary or any Xxxx Group Company or (iv)
constitutes financial statements delivered to such Investor under this
Agreement that are otherwise publicly available. Each Investor will
maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by such Investor in good faith to
protect confidential information of third parties delivered to such
Investor; PROVIDED that each Investor may deliver or disclose
Confidential Information to (A) its directors, officers, employees,
agents, attorneys and affiliates (to the extent such disclosure
reasonably relates to the administration of the investment represented
by the Preference Stock), (B) its financial advisors and other
professional advisors who agree to hold confidential the Confidential
Information substantially in accordance with the terms of this Section
3(j), (C) any other holder of any Preference Stock, (D) any Person from
17
25
which it offers to purchase any security of the Corporation (if such
Person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 3(j)), (E)
any federal or state regulatory authority having jurisdiction over it,
(F) any nationally recognized rating agency that requires access to
information about its investment portfolio, (G) any lender of such
Investor or (H) any other Person to which such delivery or disclosure
may be necessary or appropriate (w) to effect compliance with any law,
rule, regulation or order applicable to it, (x) in response to any
subpoena or other legal process, (y) in connection with any litigation
to which such Investor is a party or (z) if a Board Triggering Event
(as defined in the Certificate of Designation) has occurred and is
continuing, to the extent such Investor may reasonably determine such
delivery and disclosure to be necessary or appropriate in the
enforcement or for the protection of such Investor's rights and
remedies under the Certificate of Designation or this Agreement. Each
holder of Preference Stock, by its acceptance of such stock, will be
deemed to have agreed to be bound by and to be entitled to the benefits
of this Section 3(j) as though it were a party to this Agreement. On
reasonable request by the Corporation in connection with the delivery
to any holder of a Preference Stock of information required to be
delivered to such holder under this Agreement or requested by such
holder (other than a holder that is a party to this Agreement or its
nominee), such holder will enter into an agreement with the Corporation
embodying the provisions of this Section 3(j).
(k) To the best knowledge of such Investor's management, such
Investor is not a "fiduciary" as defined by Section 3(21) of ERISA and
each Investor hereby represents and warrants that the execution and
delivery of this Agreement is not being effected on behalf of a benefit
plan investor within the meaning of 29 C.F.R., section
2510.3-101(f)(2), or on behalf of an employee benefit plan subject to
Part 4 of Title I of ERISA, or a "plan" within the meaning of Section
4975(e)(1) of the Code (or any entity whose assets include assets of
such a plan).
Section 4. CERTAIN COVENANTS.
4.1. ACCESS TO RECORDS. From and after the Closing, the
Corporation shall afford to each Investor and its employees, counsel,
accountants and other authorized representatives full access, during normal
business hours, upon reasonable advance notice, with due regard to the
Corporation's ongoing operations, to all of the books, records, accounts and
properties of or relating to (including, without limitation, all work papers of
the Corporation's accountants) the Corporation and to all officers and employees
of the Corporation, for any reasonable purpose whatsoever.
4.2. FINANCIAL REPORTS. From and after the Closing, the
Corporation agrees to furnish to each Investor the following:
18
26
(a) As soon as available, but in any event within 90 days after the end
of each fiscal year of the Corporation, a copy of the audited consolidated
balance sheet of the Corporation and its consolidated subsidiaries as at the end
of such year and the related audited consolidated statements of income and of
cash flows for such year, setting forth in each case in comparative form the
figures for the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of the
audit, by Xxxxxx Xxxxxxxx LLP, Deloitte & Touche LLP or other independent
certified public accountants of nationally recognized standing;
(b) As soon as available, but in any event not later than 45 days after
the end of each of the first three quarterly periods of each fiscal year of the
Corporation, the unaudited consolidated balance sheet of the Corporation and its
consolidated subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year through the end of such quarter, setting
forth in each case in comparative form the figures for the previous year,
certified by the chief executive officer, president or chief financial officer
of the Corporation as being fairly stated in all material respects (subject to
normal year-end audit and other adjustments);
(c) As soon as available, but in any event not later than 45 days after
the end of each month occurring during each fiscal year of the Corporation
(other than the third, sixth, ninth and twelfth such month), the unaudited
consolidated balance sheets of the Corporation and its subsidiaries as at the
end of such month and the related unaudited consolidated statements of income
and of cash flows for such month and the portion of the fiscal year through the
end of such month, setting forth in each case in comparative form the figures
for the previous year, certified by the chief executive officer, president or
chief financial officer of the Corporation as being fairly stated in all
material respects (subject to normal year-end audit adjustments);
(d) Promptly (but in any event within seven business days) after the
discovery or receipt of notice by the Corporation of (i) any default under any
Debt Document or (ii) any other event or circumstance which, individually or in
the aggregate, has or would reasonably be expected to have a Material Adverse
Effect, a statement certified by the chief executive officer, president or chief
financial officer of the Corporation specifying the nature and period of
existence thereof and what actions the Corporation has taken and proposes to
take with respect thereto; and
(e) With reasonable promptness, such other information and financial
data concerning the Corporation, to the extent available, as any of the
Investors may reasonably request.
19
27
4.3. MAINTENANCE OF CORPORATE EXISTENCE, ETC. At all times the
Corporation shall, and shall cause each other Day Entity, the Xxxxxxxxx
Subsidiary and each Xxxx Group Company to, maintain in full force and effect its
corporate existence, rights, governmental approvals and franchises and all
licenses, permits and qualifications necessary or appropriate in the conduct of
business as proposed to be conducted, except where failure to do so,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
4.4. COMPLIANCE WITH LAWS. At all times the Corporation shall, and
shall cause each other Day Entity, the Xxxxxxxxx Subsidiary and each Xxxx Group
Company to, comply with all applicable laws, rules, regulations and orders,
noncompliance with which, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
4.5. DISCLOSURE OF INVESTMENT. From and after the date hereof, the
Corporation agrees that it will not, (i) except as may be necessary or desirable
(x) in connection with a request by a governmental agency, regulatory or
supervisory authority or court or as required by law and other than to
affiliates of the Investors, and employees of the Investors or their affiliates,
and potential investors in the Corporation or (y) in connection with a request
by any lender to the Corporation, the Day Entities, the Xxxxxxxxx Subsidiary or
the Xxxx Group Companies, disclose the transactions contemplated by the
Documents, or (ii) use in advertising or publicity the name of the other party
hereto, or any partner or employee of such party hereto or any of its respective
affiliates, or any trade name, trademark, trade device, service xxxx, symbol or
any abbreviation, contraction or simulation thereof owned by the other party
hereto or any of its respective affiliates, in either case without the prior
written consent of such party, such consent not to be unreasonably withheld or
delayed. In addition, the Corporation agrees that, prior to making any filing
with the Securities and Exchange Commission or distributing any private offering
materials which disclose the names of the Investors or the transactions
contemplated by the Documents, it will furnish to the Investors and their
counsel all such filings or such materials, which filings and materials will be
subject to the reasonable review and reasonable comment of the Investors and
their counsel, and no such filing shall be made or such materials shall be
distributed if any Investor or the Investors' counsel reasonably objects in
writing to such filings or such materials. From and after the date hereof,
neither the Corporation nor any of its subsidiaries will represent, directly or
indirectly, that any product or any service provided by, the Corporation or any
of its subsidiaries has been approved or endorsed by any Investor without the
prior written consent of the Investors.
4.6. COMPLIANCE WITH THE CERTIFICATE OF DESIGNATION. From and after the
Closing Date, the Corporation agrees that it shall, and shall cause each other
Day Entity, the
20
28
Xxxxxxxxx Subsidiary and each Xxxx Group Company to, comply with all covenants
of the Corporation set forth in paragraph (l) of the Certificate of Designation,
which paragraph (l) is hereby incorporated in this Agreement in its entirety, as
if fully set forth herein; PROVIDED, HOWEVER, that the Investors' remedies for
breach of this Section 4.6 shall be limited to an action for injunctive relief.
Section 5. SURVIVAL OF REPRESENTATIONS, WARRANTIES, AGREEMENTS AND
COVENANTS, ETC. All representations and warranties hereunder shall survive the
Closing for a period of two years and shall in no way be affected by any
knowledge possessed by, or investigation of the subject matter thereof made by
or on behalf of, the Investors; PROVIDED, HOWEVER, that (i) the representations
and warranties set forth in Sections 2.1, 2.2, 2.3 and 2.4 shall survive
indefinitely, (ii) the representations made in Section 2.6, as they relate to
Taxes, and in Section 2.16 (other than Section 2.16(e)), shall survive until 60
days after the expiration of the applicable statute of limitations (including
extensions thereof) and (iii) the representation made in Section 2.16(e) shall
survive for so long as any shares of Preference Stock remain outstanding. All
statements contained in any Schedule to this Agreement or in any certificate or
other instrument delivered by the Corporation pursuant to Section 1.4 shall
constitute representations and warranties by the Corporation under this
Agreement. All agreements contained herein shall survive indefinitely until, by
their respective terms, they are no longer operative; PROVIDED, HOWEVER, that
the rights of an Investor and the obligations of the Corporation to such
Investor under Section 4 of this Agreement shall, unless otherwise specified
therein, terminate at such time as such Investor and its Investor Affiliates do
not beneficially own any shares of the capital stock of the Corporation.
Section 6. EXPENSES. Whether or not the transactions contemplated
hereby are consummated, the Corporation shall pay and shall reimburse to the
Investors, promptly after receipt of the xxxx therefor, (a) all reasonable fees,
expenses and disbursements of the Investors' special counsel in connection with
the transactions contemplated by this Agreement; (b) all other reasonable
expenses in connection with the transactions contemplated by this Agreement; (c)
all reasonable costs and expenses incurred by the Investors relating to any
future amendment or supplement to this Agreement or the other Documents, whether
or not consummated; and (d) all costs and expenses incurred by the Investors
relating to the enforcement of this Agreement and the other Documents and the
transactions contemplated hereby and thereby, including reasonable printing and
reproduction expenses, inspection expenses and consultants' fees, costs and
expenses.
Section 7. INDEMNIFICATION.
7.1. GENERAL INDEMNIFICATION. The Corporation shall indemnify, defend
and hold each Investor and each of their respective officers, directors,
partners, managing directors,
21
29
affiliates, employees, agents, consultants, representatives, successors and
assigns (each an "Investor Indemnitee") harmless from and against all Losses
incurred or suffered by an Investor Indemnitee (whether incurred or suffered
directly or indirectly through ownership of Common Stock or Preference Stock)
arising out of, relating to or resulting from (i) any breach of any of the
representations or warranties made by the Corporation in this Agreement or in
any certificate or other instrument delivered pursuant hereto including, without
limitation, the Documents and (ii) any breach of any of the covenants or
agreements made by the Corporation in this Agreement (other than Section 4.6) or
in any certificate or other instrument delivered pursuant hereto including,
without limitation, the Documents; PROVIDED, HOWEVER, that the Corporation's
indemnification obligations hereunder shall not extend to any Losses to the
extent arising out of, relating to or resulting from the gross negligence or
willful misconduct of any Investor Indemnitee. The Investors shall indemnify,
defend and hold the Corporation, its affiliates, and each of their respective
officers, directors, employees, agents, consultants, representatives, successors
and assigns harmless against all Losses arising from the breach of any of the
covenants or agreements of the Investors in this Agreement or in any certificate
or other instrument delivered pursuant hereto including, without limitation, the
Documents; PROVIDED, HOWEVER, that the Investors' indemnification obligations
hereunder shall not extend to any Losses to the extent arising out of, relating
to or resulting from the gross negligence or willful misconduct of the
Corporation.
7.2. INDEMNIFICATION PRINCIPLES. For purposes of this Agreement,
"Losses" shall mean each and all of the following items: claims, losses
(including, without limitation, losses of earnings), liabilities, obligations,
payments, damages (actual, punitive or consequential), charges, judgments,
fines, penalties, amounts paid in settlement, costs and expenses (including,
without limitation, interest which may be imposed in connection therewith, costs
and expenses of investigation, actions, suits, proceedings, demands, assessments
and fees, expenses and disbursements of counsel, consultants and other experts)
actually incurred by the applicable indemnitee. Notwithstanding the foregoing
sentence, in no event shall any Investor Indemnitee's claim for indemnification
hereunder in respect of any loss of value of such Investor Indemnitee's
Preference Stock exceed the amount by which the cash Redemption Price (as
defined in the Certificate of Designation solely by reference to clauses (a) and
(b)(i) in the definition of the Base Redemption Amount) (including any
applicable Early Redemption Premium (as defined in the Certificate of
Designation)) which such Investor Indemnitee would have been entitled to receive
if Preference Stock held by such Investor Indemnitee were redeemed on the date
of calculation (including the Warrants component of the Base Redemption Amount
(as defined in the Certificate of Designation), calculated as if it had been
converted into cash in an amount equal to the Redemption Value (as defined in
the Certificate of Designation) of the shares of Common Stock issuable upon
exercise of the Warrants, less the applicable exercise price, but excluding any
component of value of either the Warrants component of
22
30
the Base Redemption Amount or the Warrants (when issued) based on any actual or
alleged loss of value of the Common Stock) exceeds the fair market value of such
Investor Indemnitee's Preference Stock. Any payment by the Corporation to any
Investor Indemnitee pursuant to this Section 7 or Section 6 shall be treated for
all income Tax purposes as an adjustment to the price paid by such Investor for
the Preference Stock pursuant to this Agreement.
7.3. CLAIM NOTICE. Any claim for indemnification pursuant to this
Section 7 must be made before the expiration of the survival periods set forth
in Section 5 of this Agreement. No party shall be entitled to indemnification
against a Loss arising from the breach of any representations or warranties of
any other party unless the party seeking indemnification shall have given to the
party from whom indemnification is being sought a claim notice relating to such
Loss (a "Claim Notice") prior to expiration of the representation or warranty
upon which the claim is based. The Claim Notice shall be given reasonably
promptly (but, in the case of a third party claim against the indemnified party,
within 15 days after the indemnified party has received written notification of
such claim) after the party seeking indemnity becomes aware of the facts
indicating that a claim for indemnification may be warranted. Each Claim Notice
shall specify in reasonable detail (to the extent known) the nature of the
claim, the applicable provision(s) of this Agreement or other instrument under
which the claim for indemnity arises, and, if possible, the amount or the
estimated amount thereof. The failure of any indemnified party to give a Claim
Notice shall not relieve the indemnifying party of its obligations under this
Section 7, except to the extent that the indemnified party is actually
materially prejudiced by failure to give such Claim Notice. The indemnifying
party may, through counsel of its own choosing and reasonably satisfactory to
the indemnified party, assume the defense thereof or other indemnification
obligation with respect thereto; PROVIDED, HOWEVER, that (a) any indemnified
party shall be entitled to participate in any such claim with counsel of its own
choice but at its own expense and (b) any indemnified party shall be entitled to
participate in any such claim with counsel of its own choice at the expense of
the indemnifying party if representation of both parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct. In
any event, if the indemnifying party fails to take reasonable steps necessary to
defend diligently the action or proceeding within twenty days after receiving
notice from such indemnified party that the indemnifying party believes it has
failed to do so, the indemnified party may assume such defense or other
indemnification obligation and the fees and expenses of its attorneys will be
covered by the indemnity provided for in this Section 7. Notwithstanding
anything in this Section 7 to the contrary, the indemnifying party shall not,
without the written consent of the indemnified party, settle or compromise any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) or consent to the entry of
any judgment (i) which does not, to the extent that an
23
31
indemnified party has any liability with respect to such action or claim,
include as an unconditional term thereof the delivery by the claimant or
plaintiff to the indemnified party of a written release from all liability in
respect of such action or claim, (ii) which includes any statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party, or (iii) in any manner that involves any injunctive relief
against the indemnified party or may materially and adversely affect the
indemnified party. Notwithstanding anything in this Section 7 to the contrary,
the indemnified party may not compromise or settle any claim without the prior
written consent of the indemnifying party (which consent shall not be
unreasonably withheld or delayed), unless the sole relief granted is equitable
relief for which the indemnifying party would have no liability or to which the
indemnifying party would not be subject.
Section 8. REMEDIES. In case any one or more of the covenants and/or
agreements set forth in this Agreement shall have been breached by the
Corporation, any Investor may proceed to protect and enforce its rights either
by suit in equity and/or by action at law, including, but not limited to, an
action for damages as a result of any such breach and/or an action for specific
performance of any such covenant or agreement contained in this Agreement.
Section 9. FURTHER ASSURANCES. At any time or from time to time after
each Closing, the Corporation, on the one hand, and the Investors, on the other
hand, agree to cooperate with each other, and at the request of the other party,
to execute and deliver any further instruments or documents and to take all such
further action as the other party may reasonably request in order to evidence or
effectuate the consummation of the transactions contemplated hereby relating to
the Purchase and to otherwise carry out the intent of the parties hereunder.
Section 10. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure
to the benefit of the Corporation and each of the Investors and the respective
successors, assigns, heirs and personal representatives of the Corporation and
each of the Investors. The Corporation acknowledges that, subject to compliance
with applicable securities laws, the provisions of the Certificate of
Designation and the Stockholders Agreement, any of the Investors may transfer,
all or part of, the securities acquired by it hereunder and assign, all or part
of, its rights and obligations under this Agreement.
Section 11. ENTIRE AGREEMENT. This Agreement and the other writings
expressly referred to herein which form a part hereof contain the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior and contemporaneous arrangements or understandings with
respect thereto.
24
32
Section 12. NOTICES. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy (with
a confirmatory copy sent by a different means within three business days of such
notice), nationally recognized overnight courier or first class registered or
certified mail, return receipt requested, postage prepaid, addressed to such
party at the address set forth below or such other address as may hereafter be
designated in writing by such party to the other parties:
(i) if to the Corporation, to:
Day International Group, Inc.
X.X. Xxx 000
000 Xxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Debevoise & Xxxxxxxx.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
and
Greenwich Street Capital Partners, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx X. Vanden Beukel
and
25
33
(ii) if to the Investors, to:
Quantum Industrial Partners LDC
Xxxx Xxxxxxxx 0
Xxxxxxx, Xxxxxxxxxxx
Xxxxxxxxxxx Antilles
Telecopy: (000) 0-000-0000
Attention: Quantum Group Administrator
SFM Domestic Investments LLC
000 0xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxxx
and
Greenwich Street Capital Partners, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx X. Vanden Beukel
with copies to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
and
Xxxxx Fund Management LLC
000 0xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
All such notices, requests, consents and other communications shall be
deemed to have been given when received.
26
34
Section 13. AMENDMENTS; ENFORCEMENT. The terms and provisions of this
Agreement may be modified or amended, or any of the provisions hereof waived,
temporarily or permanently, pursuant to the written consent of the Corporation
and a majority in interest of the Investors.
Section 14. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute but one
agreement.
Section 15. HEADINGS. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
Section 16. NOUNS AND PRONOUNS. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice versa.
Section 17. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the principles of conflicts of law. Each of the parties hereto hereby
irrevocably and unconditionally consents to submit to the jurisdiction of the
courts of the State of New York and of the United States of America, in each
case located in the County of New York, for any Litigation arising out of or
relating to this Agreement and the transactions contemplated hereby (and agrees
not to commence any Litigation relating thereto except in such courts), and
further agrees that service of any process, summons, notice or document by U.S.
registered mail to its respective address set forth in this Agreement, or such
other address as may be given by one or more parties to the other parties in
accordance with the notice provisions of Section 12, shall be effective service
of process for any Litigation brought against it in any such court. Each of the
parties hereto hereby irrevocably and unconditionally waives any objection to
the laying of venue of any Litigation arising out of this Agreement or the
transactions contemplated hereby in the courts of the State of New York or the
United States of America, in each case located in the County of New York, and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such Litigation brought in any such court has
been brought in an inconvenient forum.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
27
35
Section 18. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid, but
if any provision of this Agreement is held to be invalid or unenforceable in any
respect, such invalidity or unenforceability shall not render invalid or
unenforceable any other provision of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
28
36
IN WITNESS WHEREOF, the parties hereto have duly executed this
agreement as of the date first above written.
CORPORATION:
DAY INTERNATIONAL GROUP, INC.
By:
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
INVESTORS:
QUANTUM INDUSTRIAL PARTNERS LDC
By:
/s/ Xxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Attorney-in-Fact
SFM DOMESTIC INVESTMENTS LLC
By:
/s/ Xxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Attorney-in-Fact
SGC PARTNERS I LLC
By:
/s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
29
00
XXXXXXXXX XXXXXX XXXXXXX
XXXXXXXX L.P.
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
TRV EMPLOYEES FUND, L.P.
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
GREENWICH STREET CAPITAL OFFSHORE
FUND, LTD.
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/ X. Xxxxxx Xxxx
-----------------------------------
Name: X. Xxxxxx Xxxx
Title: Senior Vice President
THE TRAVELERS LIFE AND ANNUITY
COMPANY
By: /s/ X. Xxxxxx Xxxx
-----------------------------------
Name: X. Xxxxxx Xxxx
Title: Senior Vice President
30
38
UNIONE ITALIANA (U.K.) REINSURANCE
COMPANY LIMITED
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
31
39
Annex I
-------
Investors
---------
Number of Shares of
Investor Preference Stock Purchase Price, $
-------- ------------------- -----------------
Quantum Industrial Partners LDC 24625 24625000
SFM Domestic Investments LLC 375 375000
SGC Partners I LLC 2248 2248000
Greenwich Street Capital Partners L.P. 4537.5 4537500
TRV Employees Fund, L.P. 1083.6 1083600
Greenwich Street Capital Offshore Fund, Ltd. 281.5 281500
The Travelers Insurance Company 234.1 234100
The Travelers Life and Annuity Company 115.3 115300
Unione Italiana (U.K.) Reinsurance Company Limited 5000 5000000
