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EXHIBIT 10.33
BWAY CORPORATION
$100,000,000
10 1/4% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
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April 8, 1997
BT SECURITIES CORPORATION
BEAR, XXXXXXX & CO. INC.
NATIONSBANC CAPITAL MARKETS, INC.
BANKERS TRUST INTERNATIONAL PLC
c/o BT Securities Corporation
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
BWAY CORPORATION, a Delaware corporation (the "Issuer"), 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 Issuer proposes to issue and sell to the Initial Purchasers
$100,000,000 aggregate principal amount of its 10 1/4% Senior Subordinated Notes
due 2007 (the "Notes"). The Notes will be guaranteed (collectively, the
"Guarantees") on a senior subordinated basis by each of the Issuer's
Subsidiaries listed on the signature pages hereof (collectively, and together
with any subsidiary that in the future executes a supplemental indenture
pursuant to which such subsidiary agrees to guarantee the Notes, the "Subsidiary
Guarantors"). The Notes and the Guarantees are collectively referred to herein
as the "Securities". The Securities are to be issued under an indenture (the
"Indenture") to be dated as of April 11, 1997 by and among the Issuer, the
Subsidiary Guarantors and Xxxxxx Trust and Savings Bank, as Trustee (the
"Trustee").
The Securities are being offered in connection with the Issuer's
refinancing of existing indebtedness primarily incurred under its senior
revolving credit facility dated June 17, 1996 (the "Credit Agreement").
The Securities 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.
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In connection with the sale of the Securities, the Issuer has prepared
a preliminary offering memorandum dated March 21, 1997 (the "Preliminary
Memorandum"), and a final offering memorandum dated April 8, 1997 (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 Securities, the terms of the offering of the Securities, a
description of the Credit Agreement, a description of the Issuer and the
Subsidiary Guarantors and any material development relating to the Issuer and
the Subsidiary Guarantors occurring after the date of the most recent historical
financial statements included therein.
The Initial Purchasers and their direct and indirect transferees of
the Securities will be entitled to the benefits of the Registration Rights
Agreement to be dated as of the Closing Date (as defined) (the "Registration
Rights Agreement"), pursuant to which the Issuer and the Subsidiary Guarantors
will agree, among other things, to file with the Securities and Exchange
Commission (the "Commission"), under the circumstances set forth therein, (i) a
registration statement under the Act (the "Exchange Offer Registration
Statement"), relating to Senior Subordinated Notes due 2007 of the Issuer (the
"Exchange Notes") to be offered in exchange (the "Exchange Offer") for the
Notes, and (ii) as and only to the extent required by the Registration Rights
Agreement, a shelf registration statement pursuant to Rule 415 under the Act
(the "Shelf Registration Statement" and, together with the Exchange Offer
Registration Statement, the "Registration Statements"), relating to the resale
by certain holders of the Notes, and to use its best efforts to cause (A) the
Exchange Offer Registration Statement to be declared effective and (B) as and
only to the extent required, the Shelf Registration Statement to be declared
effective. This Purchase Agreement (this "Agreement"), the Notes, the
Guarantees, the Exchange Notes, the Indenture and the Registration Rights
Agreement are hereinafter referred to collectively as the "Operative Documents."
2. Representations and Warranties. The Issuer and each of the
Subsidiary Guarantors, jointly and severally, represents and warrants to and
agrees with each of the Initial Purchasers that:
(a) Neither the Preliminary Memorandum as of its date 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
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with information relating to any of the Initial Purchasers furnished to the
Issuer 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 dates set forth therein, the Company had the authorized,
issued and outstanding capitalization as set forth in the Final Memorandum; all
of the shares of capital stock of each of the Company and each of its
subsidiaries (each, a "Subsidiary" and collectively, 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; and except as set forth in the Final Memorandum or
in the Company's publicly filed documents (and employee or director stock
options granted in the ordinary course of business since the dates of such
documents), there were no material (i) options, warrants or other rights to
purchase, (ii) agreements or other obligations of the Issuer 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 Issuer or any of the
Subsidiaries outstanding. Except for the Issuer's interests in its
Subsidiaries, certain Subsidiaries' interests in other Subsidiaries and as
disclosed in the Final Memorandum, neither the Issuer nor any of the
Subsidiaries owns, directly or indirectly, any material amount 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 (other than Material
Management, Inc.'s joint venture interest in Tinplate Alliance, L.L.C.).
(c) Each of the Issuer and the Subsidiaries is duly incorporated,
validly existing and in good standing under the laws of its respective
jurisdiction of incorporation and has all requisite corporate power and
authority to own its properties and conduct its business as now conducted and
as described in the Final Memorandum; each of the Issuer and the Subsidiaries is
duly qualified to do business as a foreign corporation 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), prospects or
results of operations of the Issuer and the Subsidiaries taken as a whole (any
such event, a "Material Adverse Effect").
(d) Each of the Issuer and the Subsidiary Guarantors has all requisite
corporate power and authority to execute, deliver and perform its respective
obligations under the Operative Documents to which it is a party and to
consummate the transactions contemplated hereby and thereby, including, without
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limitation, the power and authority to issue, sell and deliver the Securities as
contemplated by this Agreement.
(e) This Agreement has been duly and validly authorized, executed and
delivered by the Issuer and each of the Subsidiary Guarantors.
(f) The Indenture has been duly and validly authorized by the Issuer
and the Subsidiary Guarantors and, when duly executed and delivered in
accordance with its terms (assuming the due execution and delivery thereof by
the Trustee), will be the legally valid and binding agreement of each of the
Issuer and the Subsidiary Guarantors, enforceable against each of them in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws now or hereinafter in effect relating to or affecting
creditors' rights generally, by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
or by the discretion of the court before which any proceeding therefor may be
brought.
(g) The Notes have been duly and validly authorized for issuance and
sale to the Initial Purchasers by the Issuer pursuant to this Agreement and,
when issued and authenticated in accordance with the terms of the Indenture and
delivered against payment therefor in accordance with the terms hereof, will be
the legally valid and binding obligations of the Issuer, enforceable against the
Issuer in accordance with its terms and entitled to the benefits of the
Indenture, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws now or hereinafter
in effect relating to or affecting creditors' rights generally, by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law) or by the discretion of the court before which
any proceeding therefor may be brought.
(h) The Exchange Notes have been duly and validly authorized for
issuance by the Issuer and, when issued and authenticated in accordance with the
terms of the Indenture, the Registration Rights Agreement and the Exchange
Offer, will be the legally valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their terms and entitled to
the benefits of the Indenture, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws now or
hereinafter in effect relating to or affecting creditors' rights generally, by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) or by the discretion of the
court before which any proceeding therefor may be brought.
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(i) The Guarantees have been duly and validly authorized for issuance
and sale to the Initial Purchasers by the Subsidiary Guarantors and, when the
Notes are duly and validly authorized, executed, issued and authenticated in
accordance with the terms of the Indenture and delivered against payment
therefor in accordance with the terms hereof, will be the legally valid and
binding obligations of each of the Subsidiary Guarantors, enforceable against
each of the Subsidiary Guarantors in accordance with their terms and entitled to
the benefits of the Indenture, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws now or hereinafter in effect relating to or affecting
creditors' rights generally, by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
or by the discretion of the court before which any proceeding therefor may be
brought.
(j) The Registration Rights Agreement has been duly authorized by the
Issuer and the Subsidiary Guarantors and, when duly executed and delivered by
the Issuer and the Subsidiary Guarantors (assuming the due execution and
delivery thereof by you), will be the legally valid and binding obligation of
the Issuer and the Subsidiary Guarantors, enforceable against each of them in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws now or hereinafter in effect relating to or affecting
creditors' rights generally, by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
or by the discretion of the court before which any proceeding therefor may be
brought and, as to rights of indemnification and contribution, by principles of
public policy or federal or state securities laws relating thereto.
(k) No consent, waiver, approval, authorization or order of or filing,
registration, qualification, license or permit of or with any court or
governmental agency or body, or third party is required to be obtained (i) by
the Issuer for the issuance and sale by the Issuer of the Notes to the Initial
Purchasers or the consummation by the Issuer of each of the other transactions
contemplated hereby or by any of the other Operative Documents and (ii) by the
Subsidiary Guarantors for the issuance by the Subsidiary Guarantors of the
Guarantees or the consummation by the Subsidiary Guarantors of the other
transactions contemplated hereby or by any of the Operative Documents, except,
in each case, such as have been or, prior to the Closing Date, will be obtained
and such as may be required under applicable state securities or "Blue Sky" laws
in connection with the purchase and resale of the Securities by the Initial
Purchasers and as may be required in connection with the Exchange Offer and the
other transactions contemplated by the Registration Rights Agreement under the
Act, the Exchange Act, the TIA and the
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Securities or Blue Sky laws of the various states (and the rules and regulations
thereunder). None of the Issuer or any of the Subsidiaries is (A) in violation
of its charter or bylaws (or similar organizational document), (B) 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 which would not, individually or in the aggregate, have
a Material Adverse Effect, or (C) in breach of or default under (nor has any
event occurred which, 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,
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 which would not, individually or in the aggregate,
have a Material Adverse Effect.
(l) The execution, delivery and performance by the Issuer and the
Subsidiary Guarantors of this Agreement and each of the other Operative
Documents (to the extent a party thereto) and the consummation of the
transactions contemplated hereby and thereby (including, without limitation, the
issuance and sale of the Securities to the Initial Purchasers and the issuance
of the Exchange Notes in the Exchange Offer) do not and will not (A) conflict
with or constitute or result in a breach of or a default under (or constitute an
event which with notice or passage of time or both would constitute a default
under) or cause an acceleration of any obligation under, or result in the
imposition or creation of (or the obligation to create or impose) a Lien (as
defined) on any properties or assets of the Issuer or any Subsidiary with
respect to the terms or provisions of any Contract, except for any such
conflict, breach, violation, default or event which would not, individually or
in the aggregate, have a Material Adverse Effect, (B) violate or conflict with
the charter or bylaws (or similar organizational document) of the Issuer or any
of the Subsidiaries, or (C) conflict with (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
Issuer or any of the Subsidiaries or any of their respective properties or
assets, except for any such conflict, breach or violation which would not,
individually or in the aggregate, have a Material Adverse Effect.
(m) Xxxxxxxx & Touche LLP, Independent Auditors, who are reporting on
the audited financial statements of the Issuer in the Final Memorandum, are
independent public accountants within the meaning of the Act. The audited
financial statements of the Issuer and related notes thereto included in the
Final Memorandum (or, if the Final Memorandum is not in existence, the
Preliminary Memorandum) present fairly in all material respects the financial
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position of the Issuer as of the dates indicated and the results of its
respective operations and the changes in the financial position for the periods
specified, in accordance with United States generally accepted accounting
principles ("GAAP") consistently applied throughout such periods, except as
otherwise stated therein. The summary and selected financial and statistical
data included 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
stated therein.
(n) The pro forma financial statements (including the notes thereto)
and the other pro forma financial information included in the Final Memorandum
(or, if the Final Memorandum is not in existence, the Preliminary 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") and (ii) have been prepared in all material
respects in accordance with the Commission's rules and guidelines with respect
to pro forma financial statements; the assumptions used in the preparation of
the pro forma financial data and other pro forma financial information included
in the Final Memorandum (or, if the Final Memorandum is not in existence, the
Preliminary Memorandum) are reasonable.
(o) Other than as described in the Final Memorandum (or, if the Final
Memorandum is not in existence, the Preliminary Memorandum), there is not
pending or, to the knowledge of the Issuer, threatened any action, suit,
proceeding, inquiry or investigation to which the Issuer or any of the
Subsidiaries is a party, or to which the property or assets of the Issuer or any
of the Subsidiaries is subject, before or brought by any court, arbitrator or
governmental agency or body which, if determined adversely to the Issuer or any
such Subsidiary, as the case may be, would, individually or in the aggregate,
have a Material Adverse Effect or which seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of the Securities to
be sold hereunder or the consummation of the other transactions described in the
Operative Documents.
(p) Each of the Issuer and the Subsidiaries possesses all licenses,
permits, certificates, consents, orders, approvals and other authorizations
from, and has made or will have 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 or proposed to be
conducted as set forth in the Final Memorandum (or, if the Final Memorandum is
not in existence, the Preliminary 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; and neither the Issuer
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nor any of 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, have a Material Adverse Effect.
(q) Since the respective dates as of which information is given in the
Final Memorandum (or, if the Final Memorandum is not in existence, the
Preliminary Memorandum), except as described therein there has been no material
adverse change, or any fact known to the Issuer which could reasonably be
expected to result in a material adverse change, in the business, condition
(financial or other), prospects or results of operations of the Issuer and its
Subsidiaries taken as a whole, whether or not arising from transactions in the
ordinary course of business or any loss of, or damage to, properties (whether or
not insured) which could reasonably be expected to affect materially and
adversely the business, prospects, properties, assets, earnings, operations,
condition (financial or other) or results of operations of the Issuer and its
Subsidiaries taken as a whole. Since the date of the latest balance sheet
presented in the Final Memorandum (or, if the Final Memorandum is not in
existence, the Preliminary Memorandum), except as expressly disclosed therein,
neither the Issuer nor any of its Subsidiaries has (i) incurred or undertaken
any liabilities or obligations, direct or contingent, that are material to the
Issuer and its Subsidiaries taken as a whole, (ii) entered into any material
transaction not in the ordinary course of business and consistent with past
practice or (iii) declared or paid any dividend or made any distribution on any
shares of its capital stock or redeemed, purchased or otherwise acquired or
agreed to redeem, purchase or otherwise acquire any shares in excess of 25,000
shares of its capital stock.
(r) Each of the Issuer 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,
have a Material Adverse Effect, and has paid all taxes shown as due thereon
except as to taxes being contested in good faith, or where the failure to pay
any such taxes would not, individually or in the aggregate, have a Material
Adverse Effect; and other than tax deficiencies which the Issuer or any of the
Subsidiaries is contesting in good faith and for which the Issuer or such
Subsidiary has provided adequate reserves in accordance with generally accepted
accounting principles, there is no tax deficiency that has been asserted against
the Issuer or any Subsidiary that would have, individually or in the aggregate,
a Material Adverse Effect.
(s) The statistical and market-related data included in the Final
Memorandum are based on or derived from sources which the Issuer believes to be
reliable and accurate.
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(t) Neither the Issuer nor any of 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 Securities to violate Regulation G, 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.
(u) Each of the Issuer and each of its Subsidiaries has good and
marketable title to all the properties and good title to all the assets
reflected as owned in the financial statements (or elsewhere) in the Final
Memorandum subject to no lien, mortgage, pledge, charge or encumbrance of any
kind except (i) those, if any, reflected in the financial statement or (ii)
those which would not, individually or in the aggregate, have a Material Adverse
Effect. Each of the Issuer and its Subsidiaries holds its leased properties
under valid, subsisting and enforceable leases, with such exceptions as would
not, individually or in the aggregate, have a Material Adverse Effect. Except as
disclosed in the Final Memorandum, the Issuer and each of its Subsidiaries owns
or leases all such properties as are necessary to its operations as now
conducted or as proposed to be conducted. The Issuer 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 or proposed to be operated by them as described in the Final
Memorandum, and neither the Issuer nor any of the Subsidiaries has received any
notice of infringement of or conflict with (or knows of any such infringement of
or conflict with) asserted rights of others with respect to any patents,
trademarks, service marks, trade names, copyrights or know-how which, if such
assertion of infringement or conflict were sustained, would have a Material
Adverse Effect.
(v) There are no legal or governmental proceedings involving or
affecting the Issuer or any Subsidiary or any of their respective properties or
assets which would be required to be described in a prospectus pursuant to the
Act that are not so described in the Final Memorandum, nor are there any
material contracts or other documents which would be required to be described in
a prospectus pursuant to the Act that are not so described in the Final
Memorandum.
(w) Except as described in the Final Memorandum or as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, each of the Issuer and the Subsidiaries is in compliance with
and not subject to any known liability under applicable Environmental Laws (as
defined below).
For purposes of this Agreement, "Environmental Laws" means the common
law and all applicable federal, provincial, state and local laws or regulations,
codes, orders, decrees, judgments or injunctions issued, promulgated, approved
or entered
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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.
(x) Except as described in the Final Memorandum, there is no strike,
slowdown or work stoppage with the employees of the Issuer or the Subsidiaries
which is pending or, to the knowledge of the Issuer and the Subsidiaries, as the
case may be, threatened that, individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect.
(y) Each of the Issuer and the Subsidiaries carries insurance
including self-insurance in such amounts and covering such risks as in its
reasonable determination is adequate for the conduct of its business and the
value of its properties.
(z) Each of the Issuer and the Subsidiaries maintains internal
accounting controls which provide reasonable assurance that (A) transactions are
executed in accordance with management's 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 authorization and (D) the reported
accountability for its assets is compared with existing assets at reasonable
intervals.
(aa) Neither the Issuer nor any of the Subsidiaries is or will be upon
consummation of the transactions contemplated hereby 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 Guarantees, the Indenture and the Registration
Rights Agreement conform in all material respects to the descriptions thereof
contained in the Final Memorandum.
(cc) No holder of securities of the Issuer or any Subsidiary Guarantor
will be entitled to have such securities registered under the Registration
Statements required to be filed by the Issuer and the Subsidiary Guarantors
pursuant to the Registration Rights Agreement, other than as expressly permitted
thereby.
(dd) Immediately after the consummation of the transactions
contemplated by this Agreement and the Indenture, the present fair value of the
assets of each of the Issuer and its
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"significant subsidiaries" (as defined in Rule 1.02(v) of Regulation S-X under
the Securities Act) will exceed the sum of its stated liabilities and identified
contingent liabilities (after giving effect, in the case of each of the
Subsidiary Guarantors, to the limitations contained in such Subsidiary
Guarantor's Guarantee); neither the Issuer nor any of the Subsidiary Guarantors
(each on a consolidated basis) is, or will be, after giving effect to the
execution, delivery and performance of the Notes, the Guarantees, this Agreement
and the Indenture, and the consummation of the transactions contemplated hereby
and thereby, (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) Neither the Issuer nor 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) which is or could be integrated with the sale of the Securities in a manner
that would require the registration under the Act of the Securities 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 Securities or in any manner involving a public offering within the meaning
of Section 4(2) of the Act.
(ff) When the Securities are delivered pursuant to this Agreement,
none of the Securities will be of the same class (within the meaning of Rule
144A under the Act) as securities of the Issuer or any Subsidiary Guarantor that
are listed on a national securities exchange registered under Section 6 of the
Exchange Act or that are quoted in a United States automated inter-dealer
quotation system.
(gg) Neither the Issuer nor the Subsidiaries, any of their respective
Affiliates (as defined in Rule 501(b) of Regulation D under the Act) or any
person acting on any of their behalf (other than the Initial Purchasers as to
which the Issuer and the Subsidiaries make no representation) has engaged in any
directed selling efforts (as that term is defined in Regulation S under the Act
("Regulation S")) with respect to the Securities; the Issuer and its respective
Affiliates and any person acting on any of their behalf (other than the Initial
Purchasers as to which the Issuer and the Subsidiaries make no representation)
have complied with the offering restrictions requirement of Regulation S.
(hh) Assuming that the representations and warranties of the Initial
Purchasers contained in Section 8 are true and correct, it is not necessary in
connection with the offer, sale and delivery of the Securities to the Initial
Purchasers or the
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reoffer and resale by the Initial Purchasers in the manner contemplated by
Section 8 of this Agreement to register the Securities under the Act or to
qualify the Indenture in respect of the Securities under the Trust Indenture Act
of 1939, as amended (the "TIA").
Any certificate signed by any officer of the Issuer or any Subsidiary
Guarantor and delivered to any Initial Purchaser or to counsel for the Initial
Purchasers pursuant to Section 7 of this Agreement shall be deemed a
representation and warranty by the Issuer or such Subsidiary Guarantor, as the
case may be, to each Initial Purchaser as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Securities. On the basis of
the representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Issuer and the
Subsidiary Guarantors agree to issue and sell to the Initial Purchasers, and the
Initial Purchasers, acting severally and not jointly, agree to purchase the
Notes (including the related Guarantees) in the respective amounts set forth
opposite their respective names on Schedule I attached hereto at 97.0% of their
principal amount. One or more certificates in definitive form for the Notes and
Guarantees 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 Issuer at least 36 hours prior to
the Closing Date, shall be delivered by or on behalf of the Issuer 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 Issuer 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 Securities shall be made at the offices of Xxxxxxxx & Xxxxx,
000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 at 9:00 A.M., Chicago time, on
April 11, 1997, or at such other place, time or date as the Initial Purchasers,
on the one hand, and the Issuer, on the other hand, may agree upon, such time
and date of delivery against payment being herein referred to as the "Closing
Date." The Issuer will make such certificate or certificates for the Securities
available for checking and packaging by the Initial Purchasers at the offices of
BT Securities Corporation in New York, New York, or at such other place as BT
Securities Corporation 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 Securities 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.
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5. Covenants of the Issuer and the Subsidiary Guarantors. The
Issuer and the Subsidiary Guarantors covenant and agree with each of the Initial
Purchasers that:
(a) The Issuer 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, which consent shall not
unreasonably be withheld. The Issuer will promptly, upon the reasonable request
of the Initial Purchasers or counsel for the Initial Purchasers, make any
reasonable amendments or supplements to the Preliminary Memorandum or the Final
Memorandum that may be necessary or advisable in connection with the resale of
the Securities by the Initial Purchasers.
(b) The Issuer and the Subsidiary Guarantors will cooperate with the
Initial Purchasers in arranging for the qualification of the Securities for
offering and sale under the securities or "Blue Sky" laws of such jurisdictions
as the Initial Purchasers may designate and will continue such qualifications in
effect for as long as may be necessary to complete the resale of the Securities;
provided, however, that in connection therewith, the Issuer and the Subsidiary
Guarantors shall not be required to qualify as a foreign corporation 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.
(c) If, at any time prior to the initial resale by the Initial
Purchasers of the Securities or the 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 Issuer will promptly notify
the Initial Purchasers thereof and will prepare, at the expense of the Issuer,
an amendment or supplement to the Final Memorandum that corrects such statement
or omission or effects such compliance.
(d) The Issuer 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 Issuer will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Final Memorandum.
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(f) For so long as any of the Securities remain outstanding, the
Issuer will furnish pursuant to the Indenture copies of all reports and other
communications (financial or otherwise) 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 Issuer with the Commission or any national
securities exchange on which any class of securities of the Issuer may be
listed.
(g) None of the Issuer, the Subsidiary Guarantors or any of their
Affiliates will sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any "security" (as defined in the Act) which could be
integrated with the sale of the Securities in a manner which would require the
registration under the Act of the Securities.
(h) Neither the Issuer nor any Subsidiary Guarantor will, nor will the
Issuer 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 Securities or in any
manner involving a public offering within the meaning of Section 4(2) of the
Act.
(i) For so long as any of the Securities remain outstanding, the
Issuer will make available, upon request, to any holder of such Securities and
any prospective purchasers thereof, the information specified in Rule 144A(d)(4)
under the Act (at no cost to such holder), unless the Company is then subject to
Section 13 or 15(d) of the Exchange Act.
(j) The Issuer and the Subsidiary Guarantors will use their best
efforts to (i) assist the Initial Purchasers in permitting the Securities to be
designated for trading in the Private Offerings, Resales and Trading through
Automated Linkages market (the "PORTAL Market") of the NASD and (ii) permit the
Securities to be eligible for clearance and settlement through The Depository
Trust Company.
6. Expenses. The Issuer 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 Issuer, (iv) preparation
-15-
(including printing), issuance and delivery to the Initial Purchasers of the
Securities, (v) the qualification of the Securities under 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 any meetings with prospective investors in the Securities, (vii) fees and
expenses of the Trustee including reasonable fees and expenses of its counsel,
(viii) all expenses and listing fees incurred in connection with the application
for quotation of the Securities on the PORTAL Market and (ix) any fees charged
by investment rating agencies for the rating of the Securities. If the sale of
the Securities 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, because this Agreement is terminated or because of any failure,
refusal or inability on the part of the Issuer or the Subsidiary Guarantors to
perform all obligations and satisfy all conditions on their part to be performed
or satisfied hereunder (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 Issuer agrees to promptly reimburse
the Initial Purchasers upon demand for all reasonable out-of-pocket expenses
(including the 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
Securities.
7. Conditions of the Initial Purchasers' Obligations. The
obligations of the Initial Purchasers to purchase and pay for the Securities
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
the opinion, dated as of the Closing Date and addressed to the Initial
Purchasers, of Xxxxxxxx & Xxxxx, counsel for the Issuer and the Subsidiary
Guarantors, in form and substance satisfactory to counsel for the Initial
Purchasers, to the effect that:
(i) The Issuer is a corporation existing and in good standing under
the General Corporation Law of the State of Delaware. Each Subsidiary
Guarantor is a corporation existing and in good standing under the General
Corporation Law of the State of Delaware. Each of the Issuer and each
Subsidiary Guarantor is qualified as foreign corporation in good standing
in each of the jurisdictions set forth on a Schedule to such counsel's
opinion.
(ii) As of December 31, 1996, the Issuer had the authorized equity
capitalization set forth in the Final Memorandum under Capitalization. To
such counsel's actual
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knowledge, there are no (A) options, warrants or other rights to purchase,
(B) agreements or other obligations of the Issuer or any Subsidiary
Guarantor to issue or (C) other rights to convert any obligation into, or
exchange any securities for, shares of capital stock of or ownership
interests in any of the Subsidiaries outstanding.
(iii) Each of the Issuer and each Subsidiary Guarantor has the
corporate power to enter into and perform its obligations under the
Operative Agreements to which it is a party, including without limitation
the corporate power to issue, sell and deliver the Notes and the
Guarantees, respectively, as contemplated by the Purchase Agreement.
(iv) The Issuer's Board of Directors has adopted by requisite vote the
resolutions necessary to authorize the Issuer's execution, delivery and
performance of the Operative Agreements to which it is a party and the
Pricing Committee appointed by the Issuer's Board of Directors to act with
respect to this Agreement has approved by requisite vote the price and
interest rate set forth therein. Each Subsidiary Guarantor's Board of
Directors has adopted by requisite vote the resolutions necessary to
authorize such Subsidiary Guarantor's execution, delivery and performance
of the Operative Agreements to which it is a party.
(v) Each of the Issuer and each Subsidiary Guarantor has duly executed
and delivered this Agreement, the Indenture and the Registration Rights
Agreement.
(vi) Each of this Agreement, the Indenture and the Registration Rights
Agreement is a valid and binding obligation of each of the Issuer and each
Subsidiary Guarantor and (assuming the due authorization, execution and
delivery thereof by the other parties thereto) is enforceable against each
of the Issuer and each Subsidiary Guarantor in accordance with its terms.
(vii) The Notes have been duly executed and delivered by the Issuer
and, when paid for by the Initial Purchasers in accordance with the terms
of this Agreement (assuming the due authorization, execution and delivery
of the Indenture by the Trustee and due authentication and delivery of the
Notes by the Trustee in accordance with the Indenture), will constitute the
valid and binding obligations of the Issuer, entitled to the benefits of
the Indenture, and enforceable against the Issuer in accordance with their
terms.
(viii) The Guarantees have been duly executed and delivered by each
of the Subsidiary Guarantors and, when the Notes are duly and validly
authorized, executed, issued and authenticated in accordance with the terms
of the Indenture and delivered against payment therefor in accordance with
the terms hereof, will be the valid and binding obligations of
-17-
each of the Subsidiary Guarantors, enforceable against each of the
Subsidiary Guarantors in accordance with their terms and entitled to the
benefits of the Indenture.
(ix) When the Exchange Notes have been duly executed and delivered by
the Issuer in accordance with the terms of the Registration Rights
Agreement, the Exchange Offer and Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee and
due authentication and delivery of the Exchange Notes by the Trustee in
accordance with the Indenture), the Exchange Notes will constitute the
valid and binding obligations of the Issuer, entitled to the benefits of
the Indenture, and enforceable against the Issuer in accordance with their
terms.
(x) The statements in the Final Memorandum under the headings
"Description of Notes," "Description of Credit Agreement" and "Exchange
Offer and Registration Rights," insofar as such statements purport to
summarize certain provisions of the Indenture, the Notes, the Guarantees,
the Registration Rights Agreement and the Credit Agreement and subject to
the limitations contained in such statements, provide a fair and accurate
summary in all material respects of such provisions of such agreements.
(xi) The execution and delivery of this Agreement, the Registration
Rights Agreement and the Indenture, and the consummation of the
transactions contemplated thereby (including, without limitation, the
issuance and sale of the Securities to the Initial Purchasers) do not and
will not conflict with or constitute or result in a breach or default under
(or an event which with notice or the passage of time or both would
constitute a default under) or violation of any of, (i) the certificate of
incorporation or bylaws of the Issuer or any Subsidiary Guarantor, (ii) any
statute or governmental rule or regulation which, in the experience of such
counsel, is normally applicable both to general business corporations that
are not engaged in regulated business activities and to transactions of the
type contemplated by the Final Memorandum (but without such counsel having
made any special investigation as to other laws and provided that such
counsel need express no opinion with respect to (a) any laws, rules or
regulations to which the Issuer or any Subsidiary Guarantor may be subject
as a result of any of the Initial Purchasers' legal or regulatory status or
the involvement of any of the Initial Purchasers in such transactions or
(b) any laws, rules or regulations relating to disclosure,
misrepresentations or fraud), (iii) the terms or provisions of any contract
set forth on a Schedule to such counsel's opinion attached hereto, except
(in the case of clauses (ii) and (iii) above) for any such conflict,
breach, violation, default or event which would not, individually or
-18-
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(xii) To the actual knowledge of such counsel, no consent, waiver,
approval, authorization or order of any court or governmental authority is
required for the issuance and sale by the Issuer and the Subsidiary
Guarantors of the Securities to the Initial Purchasers or the consummation
by the Issuer and the Subsidiary Guarantors of the other transactions
contemplated by the Operative Agreements, except such as may be required
under the Act, the Exchange Act, the TIA and the security or Blue Sky laws
of the various states (and the rules and regulations thereunder), as to
which such counsel need express no opinion in this paragraph.
(xiii) To the actual knowledge of such counsel, no legal or
governmental proceedings are pending to which the Issuer or the Subsidiary
Guarantors is a party or to which the property or assets of the Issuer or
the Subsidiary Guarantors is subject which seek to restrain, enjoin or
prevent the consummation of or otherwise challenge the issuance or sale of
the Securities to be sold to the Initial Purchasers or the consummation of
the other transactions contemplated by the Operative Documents.
(xiv) Neither the Issuer nor any Subsidiary Guarantor is, or
immediately after the sale of the Notes to the Initial Purchasers and
application of the net proceeds therefrom as described in the Offering
Memorandum under the caption "Use of Proceeds" will be, an "investment
company" as such term is defined in the Investment Issuer Act of 1940, as
amended.
(xv) No registration under the Act of the Securities is required in
connection with the sale of the Securities to the Initial Purchasers in the
manner contemplated by this Agreement and the Offering Memorandum or in
connection with the initial resale of the Securities by the Initial
Purchasers in accordance with Section 8 hereof, and prior to the
commencement of the Exchange Offer or the effectiveness of the Shelf
Registration Statement, the Indenture is not required to be qualified under
the TIA, in each case assuming (i) that the purchasers who buy such
Securities in the initial resale thereof are qualified institutional buyers
as defined in Rule 144A promulgated under the Act or accredited investors
as defined in Rule 501(a)(1), (2), (3) or (7) promulgated under the Act,
(ii) the accuracy and completeness of the Initial Purchasers'
representations in Section 8 hereof and those of the Issuer contained in
the Purchase Agreement regarding the absence of a general solicitation in
connection with the sale of such Securities to the Initial Purchasers and
the initial resale thereof, (iii) the due performance by the Initial
Purchasers of the agreements set forth in Section 8 hereof and (iv) the
accuracy of the representations made by each Accredited Investor who
-19-
purchased Securities in the initial resale as set forth in the Offering
Memorandum.
(xvi) As of the date hereof, none of the Securities are of the same
class (within the meaning of Rule 144A under the Act) as securities of the
Issuer or any Subsidiary Guarantor that are listed on a national securities
exchange registered under Section 6 of the Exchange Act or that are quoted
in a United States automated inter-dealer quotation system.
(xvii) Neither the sale, issuance, execution or delivery of the Notes
nor the application of the net proceeds therefrom as described in the Final
Memorandum under the caption "Use of Proceeds" will contravene Regulation G
(12 C.F.R. Part 207), Regulation T (12 C.F.R. Part 220), Regulation U (12
C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of
Governors of the Federal Reserve System.
At the time the foregoing opinion is delivered, Xxxxxxxx & Xxxxx shall
additionally state that it has participated in conferences with officers and
other representatives of the Issuer, representatives of the independent public
accountants for the Issuer, representatives of the Initial Purchasers and
counsel for the Initial Purchasers, at which conferences the contents of the
Final Memorandum and related matters were discussed, and, although it has not
independently verified and is not passing upon and assumes no responsibility for
the accuracy, completeness or fairness of the statements contained in the Final
Memorandum (except to the extent specified in subsection (x), no facts have come
to its attention which lead it to believe that the Final Memorandum, on the date
thereof or on the Closing Date, contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading (it being understood that such firm need express no opinion with
respect to the financial statements and related notes thereto and the other
financial, statistical and accounting data included in the Final Memorandum).
In rendering the foregoing opinions, Xxxxxxxx & Xxxxx may (i) rely, to the
extent such counsel deems proper, upon the representations and certifications of
officers of the Issuer and the Subsidiaries or of public officials and (ii) rely
as to matters involving the application of laws of any jurisdiction other than
the federal laws of the United States of America, the laws of the State of New
York and the General Corporation law of the State of Delaware, to the extent
such counsel deems proper and specifies in such opinion, upon the opinion of
other counsel who are reasonably satisfactory to counsel for the Initial
Purchasers.
References to the Final Memorandum in this subsection (a) shall include any
amendment or supplement thereto prepared in accordance with the provisions of
this Agreement at the Closing Date.
-20-
(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 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 Deloitte & Touche LLP,
Independent Auditors, a comfort letter or letters dated the date hereof and the
Closing Date, in form and substance satisfactory to counsel for the Initial
Purchasers.
(d) The representations and warranties of the Issuer and the Subsidiary
Guarantors contained in this Agreement shall be true and correct in all material
respects 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 Issuer shall have performed 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 the 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 Securities 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), neither the Issuer nor any Subsidiary 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, 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 Issuer
dated the Closing Date, signed on behalf of the Issuer by its Chairman of the
Board, President or Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Issuer and the
Subsidiary Guarantors contained in this Agreement were, on the date of the
Purchase Agreement, and are, as of the date hereof, true and correct in all
material respects,
-21-
and the Issuer and the Subsidiary Guarantors have performed all covenants
and agreements and satisfied all conditions on their 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 Securities hereunder has not been enjoined
(temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received a copy
of the Registration Rights Agreement, executed by the Issuer and the Subsidiary
Guarantors and (assuming the due execution and delivery by other parties
thereto) such agreement shall be in full force and effect at all times from and
after the Closing Date.
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 Issuer 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.
8. Offering of Securities; Restrictions on Transfer. (a) Each of the
Initial Purchasers represents and warrants (as to itself only) that it is a
"Qualified Institutional Buyer" (as defined in Rule 144A promulgated under the
Act) (a "QIB"). Each of the Initial Purchasers agrees with the Issuer (as to
itself only) that (i) it has not and will not solicit offers for, or offer or
sell, the Securities 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 Securities only from, and will offer
the Securities only to (A) in the case of offers inside the United States, (x)
persons whom the Initial Purchasers reasonably believe to be QIBs 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 is being made in reliance on Rule 144A, and, in
each case, in transactions under Rule 144A or (y) a limited number of other
institutional investors reasonably believed by the Initial Purchasers to be
Accredited
-22-
Investors that, prior to their purchase of the Securities, deliver to the
Initial Purchasers a letter containing the representations and agreements set
forth in Annex A to the Final Memorandum and (B) in the case of offers outside
the United States, to persons other than U.S. persons ("foreign purchasers,"
which term shall include dealers or other professional fiduciaries in the United
States acting on a discretionary basis for foreign beneficial owners (other than
an estate or trust)); in reliance upon Regulation S under the Act provided,
however, that, in the case of this clause (B), in purchasing such Securities
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 and warrants (as to itself
only) with respect to offers and sales outside the United States that (i) it has
complied and will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Securities or has
in its possession or distributes any Memorandum or any such other material, in
all cases at its own expense; (ii) the Securities 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; (iii) it
has offered the Securities and will offer and sell the Securities (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 Securities, and any such
persons have complied and will comply with the offering restrictions requirement
of Regulation S; and (iv) it agrees that, at or prior to confirmation of sales
of the Securities, it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
Securities from it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the United
States Securities Act of 1933 (the "Securities Act") and may not be offered
and sold within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of the distribution of the Securities at any time
or (ii) otherwise until 40 days after the later of the commencement of the
offering and the closing date of the offering, except in either case in
accordance with Regulation S (or Rule 144A if available) under the
Securities Act. Terms used above have the meaning given to them in
Regulation S."
-23-
Terms used in this Section 8(b) and not defined in this Agreement have the
meanings given to them in Regulation S.
(c) Each of the Initial Purchasers represents and warrants (as to
itself only) that the source of funds being used by it to acquire the Securities
does not include the assets of any "employee benefit plan" (within the meaning
of Section 3 of ERISA) or any "plan" (within the meaning of Section 4975 of the
Code).
9. Indemnification and Contribution. (a) The Issuer and the
Subsidiary Guarantors agree, jointly and severally, to indemnify and hold
harmless the Initial Purchasers, their directors, officers, agents and
affiliates and 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, 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 of any material
fact contained in any Memorandum or any amendment or supplement thereto or
any application or other document, or any amendment or supplement thereto,
executed by the Issuer or based upon written information furnished by or on
behalf of the Issuer or the Subsidiary Guarantors filed in any jurisdiction
in order to qualify the Securities under the securities or "Blue Sky" laws
thereof or filed with any securities association or securities exchange
(each an "Application"); or
(ii) the omission or alleged omission to state, in any Memorandum or
any amendment or supplement thereto or any Application, a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading,
and will reimburse, as incurred, the Initial Purchasers, each such director,
officer, agent and affiliate and each such controlling person for any reasonable
legal or other reasonable expenses incurred by the Initial Purchasers, such
director, officer, agent and affiliate 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 Issuer and the Subsidiary Guarantors will not be liable (i) 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 or any Application in reliance upon and in conformity with
written information concerning the Initial Purchasers furnished to the Issuer by
the Initial
-24-
Purchasers specifically for use therein or (ii) with respect to the Preliminary
Memorandum, to the extent that any such loss, claim, damage or liability arises
solely from the fact that the Initial Purchasers sold Securities to a person to
whom there was not sent or given, on or prior to the written confirmation of
such sale, a copy of the Final Memorandum, as amended and supplemented, if the
Issuer shall have previously furnished copies thereof to the Initial Purchasers
in accordance with this Agreement and the Final Memorandum, as amended and
supplemented, would have corrected any such untrue statement or omission. This
indemnity agreement will be in addition to any liability that the Issuer and the
Subsidiary Guarantors may otherwise have to the indemnified parties. The Issuer
and the Subsidiary Guarantors shall not be liable under this Section 9 for any
settlement of any claim or action effected without their prior written consent,
which shall not be unreasonably withheld.
The Initial Purchasers shall not, without the prior written consent of the
Issuer, effect any settlement or compromise of any pending or threatened
proceeding in respect of which the Issuer and the Subsidiary Guarantors are or
could have been a party, or indemnity could have been sought hereunder by the
Issuer and the Subsidiary Guarantors, unless such settlement (A) includes an
unconditional written release of the Issuer and the Subsidiary Guarantors, in
form and substance reasonably satisfactory to the Issuer, 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 the Issuer or the Subsidiary Guarantors.
(b) The Initial Purchasers agree, severally and not jointly, to indemnify
and hold harmless the Issuer and the Subsidiary Guarantors, their respective
directors, officers, agents, affiliates and each person, if any, who controls
the Issuer and the Subsidiary Guarantors 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 Issuer or any of the Subsidiary Guarantors 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 any Application, or
(ii) the omission or the alleged omission to state therein a material fact in
any Memorandum or any amendment or supplement thereto or any Application
necessary to make the statements therein, in the light of the circumstances
under which they were made, 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 in reliance upon and in conformity with
written information concerning such Initial Purchaser, furnished to the Issuer
by such Initial Purchaser specifically for use therein; and subject to the
limitation set forth immediately
-25-
preceding this clause, will reimburse, as incurred, any reasonable legal or
other expenses incurred by the Issuer or any of the Subsidiary Guarantors or any
such director, officer, agent, affiliate 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. This indemnity agreement 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 Issuer and the Subsidiary Guarantors 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, notify the indemnifying party of the commencement thereof in
writing; but the omission to so notify the indemnifying party will not relieve
the indemnifying party from any liability under paragraph (a) or (b) above
unless and to the extent the indemnifying party is materially prejudiced by such
failure. 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 different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after
-26-
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 Issuer 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. 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 or parties on the
other from the offering of the Securities 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 or parties on the other in
connection with the statements or omissions or alleged statements
-27-
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Issuer and
the Subsidiary Guarantors 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 Issuer 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
Issuer and the Subsidiary Guarantors 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 Issuer, the Subsidiary Guarantors and the Initial Purchasers
agree that it would not be just and 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. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this paragraph (d),
each director, officer and affiliate of an Initial Purchaser and 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 and officer of the Issuer or any
Subsidiary Guarantor, and each person, if any, who controls the Issuer or any
Subsidiary Guarantor 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 Issuer
and the Subsidiary Guarantors.
10. Survival Clause. The representations, warranties, agreements,
covenants, indemnities and other statements of the Issuer, the Subsidiary
Guarantors, their officers 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 Issuer, the Subsidiary Guarantors, any of their officers or
directors, the Initial Purchasers or any controlling person
-28-
referred to in Section 9 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6, 9, 13 and 15 hereof shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement.
11. Termination. (a) This Agreement may be terminated in the sole
discretion of the Initial Purchasers by notice to the Issuer given prior to the
Closing Date in the event that the Issuer or any of the Subsidiary Guarantors
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 in all material respects or, if at or prior to the Closing Date:
(i) either (A) the Issuer or any of the Subsidiary Guarantors 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, labor dispute, 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 a
Material Adverse Effect, or (B) there shall have been, in the sole judgment
of the Initial Purchasers, any event or development that, individually or
in the aggregate, has had or could be reasonably likely to have a Material
Adverse Effect (including without limitation a change in control of the
Issuer or any Subsidiary Guarantor), except in each case as described in
the Final Memorandum (exclusive of any amendment or supplement thereto);
(ii) trading in securities generally on the New York Stock Exchange,
American Stock Exchange or the NASDAQ National Market shall have been
suspended or minimum or maximum prices shall have been established on any
such exchange or market;
(iii) a banking moratorium shall have been declared by New York or
United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between 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 change in the financial markets of 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 Securities as
contemplated by the Final Memorandum; or
-29-
(v) any securities of the Issuer 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 third, fifth,
sixth and seventh paragraphs 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
Issuer for the purposes of Sections 2(a) and 9 hereof and the Initial Purchasers
confirm that such statements are correct as of the date hereof and as of the
Closing Date.
13. Notices. All communications hereunder shall be in writing and,
if sent to the Initial Purchasers, shall be mailed or delivered to BT Securities
Corporation, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Finance Department, with a copy to Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx; if sent to the Issuer or
the Subsidiary Guarantors, shall be mailed or delivered to the Issuer at 0000
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx,
with a copy to Xxxxxxxx & Xxxxx, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Xxxxxxx X. Xxxxxx.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five 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 Issuer and the Subsidiary Guarantors,
if any, 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 Issuer and the Subsidiary
Guarantors, if any, contained in Section 9 of this Agreement shall
-30-
also be for the benefit of any person or persons who control an Initial
Purchaser 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 Issuer and the Subsidiary Guarantors, if any, their respective directors,
officers and any person or persons who control the Issuer within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act. No purchaser of
Securities 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.
[Remainder of Page Intentionally Left Blank]
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 Issuer and the
Initial Purchasers.
Very truly yours,
BWAY CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
XXXXXXXX STANDARD (NEW JERSEY), INC.,
as guarantor
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
XXXXXX CAN COMPANY, INC.,
as guarantor
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
XXXXXXXX STANDARD, INC.,
as guarantor
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
MATERIALS MANAGEMENT, INC.,
as guarantor
By: /s/ Xxxxx X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Secretary
XXXXXXXX STANDARD (CANADA), INC.,
as guarantor
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
PLATE MASTERS, INC.,
as guarantor
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXXXXX STANDARD (OHIO), INC.,
as guarantor
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
BT SECURITIES CORPORATION,
as Initial Purchaser
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
BEAR, XXXXXXX & CO. INC.,
as Initial Purchaser
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing Director
NATIONSBANC CAPITAL MARKETS, INC.,
as Initial Purchaser
By: /s/ X. Xxxxx Xxxxxx
-------------------------------
Name: X. Xxxxx Xxxxxx
Title: Director
BANKERS TRUST INTERNATIONAL PLC
By: /s/ X. Xxxxxxxx
------------------------------
Name: X. Xxxxxxxx
Title: Director
SCHEDULE I
----------
Principal
Amount of
Initial Purchaser Notes
----------------- ------------
BT Securities Corporation.................................... $ 50,000,000
Bear, Xxxxxxx & Co. Inc...................................... 25,000,000
NationsBanc Capital Markets, Inc............................. 25,000,000
------------
Total........................................................ $100,000,000
============
