EXECUTION COPY
================================================================================
9-3/4% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
dated May 16, 1997
among
XXXXX XXXX PET FOOD ACQUISITION CO.,
CHASE SECURITIES INC.
and
CREDIT SUISSE FIRST BOSTON CORPORATION
================================================================================
$120,000,000
9-3/4% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
May 16, 1997
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
c/o Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
XXXXX XXXX PET FOOD COMPANY, INC. (as more fully defined below, the
"Company") proposes to issue and sell to CHASE SECURITIES INC. and CREDIT SUISSE
FIRST BOSTON CORPORATION (the "Initial Purchasers") $120,000,000 aggregate
principal amount of its 9-3/4% Senior Subordinated Notes due 2007 (the "Notes").
The Notes will be issued pursuant to an Indenture to be dated as of May 21, 1997
(the "Indenture"), between the Company and Wilmington Trust Company, as trustee
(the "Trustee"). This is to confirm the agreement concerning the purchase of the
Notes from the Company by the Initial Purchasers. For all purposes of this
Agreement, the term "Company" shall mean, as the context requires and except as
noted below, (i) prior to the consummation of the Transaction (as defined in the
Offering Memorandum), Xxxxx Xxxx Pet Food Acquisition Co., a Minnesota
corporation ("Acquisition Co."), and (ii) upon consummation of the Transaction,
the surviving corporation (whose name shall be changed to Xxxxx Xxxx Pet Food
Company, Inc.) after the merger of Acquisition Co. and the pet food business of
Xxxxxxx Milling Company, a Minnesota corporation, and the contribution of the
assets and liabilities of Xxxxx Xxxx Pet Food Company, Inc., a Delaware
corporation, to the surviving entity, as described in the Offering Memorandum.
For purposes of Section 1 of this Agreement, the term "Company", used as of the
date hereof, shall include the pet food business of Xxxxxxx Milling Company and
Xxxxx Xxxx Pet Food Company, Inc., a Delaware corporation.
The Notes will be offered and sold to the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "Securities
Act"), in reliance on an exemption therefrom. The Company has prepared a
preliminary offering memorandum, dated May 2, 1997 (the "preliminary offering
memorandum"), and will prepare an offering memorandum dated the date hereof
(such offering memorandum, in the form furnished to the Initial Purchasers for
use in connection with the offering of the Notes, the "Offering Memorandum"),
setting forth information concerning the Company and the Notes. Copies of the
preliminary offering memorandum have been, and copies of the Offering Memorandum
will be delivered by the Company to the Initial Purchasers
2
pursuant to the terms of this Agreement. Any references herein to the
preliminary offering memorandum and the Offering Memorandum shall be deemed to
include all amendments and supplements thereto and all documents incorporated
therein by reference. The Company hereby confirms that it has authorized the use
of the preliminary offering memorandum and the Offering Memorandum in connection
with the offering and resale of the Notes by the Initial Purchasers in
accordance with Section 3 hereof.
The Initial Purchasers and their direct and indirect transferees
will be entitled to the benefits of the Exchange and Registration Rights
Agreement, substantially in the form attached hereto as Exhibit A (the
"Registration Rights Agreement"), pursuant to which the Company will agree to
use its best efforts to commence an offer to exchange the Notes for securities
which have been registered under the Securities Act (the "Exchange Notes" and,
together with the Notes, the "Securities"), and which are identical in all
material respects to the Notes (except with respect to transfer restrictions),
or to cause a shelf registration statement to become effective under the
Securities Act and to remain effective for the period designated in such
Registration Rights Agreement.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents and warrants to and agrees with the Initial Purchasers that:
(a) Each of the preliminary offering memorandum and the Offering
Memorandum, as of its respective date, contains all the information that, if
requested by a prospective purchaser, would be required to be provided pursuant
to Rule 144A(d)(4) under the Securities Act. Each of the preliminary offering
memorandum and the Offering Memorandum, as of its date did not, and the Offering
Memorandum as of the Closing Date (as defined below), will not, contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading; provided, however, that
the Company makes no representation or warranty as to information contained in
or omitted from the preliminary offering memorandum or the Offering Memorandum,
as amended or supplemented, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Initial Purchasers
specifically for use therein (the "Initial Purchasers' Information"). The
parties acknowledge and agree that the Initial Purchasers' Information consists
solely of the statements relating to the Initial Purchasers in the second
sentence of the third paragraph and the third sentence of the fourth paragraph
in its entirety under the heading "Plan of Distribution" in the Offering
Memorandum.
(b) It is not required by applicable law or regulation in connection
with the issuance and sale of the Notes to the Initial Purchasers and the offer,
resale and delivery of the Notes in the manner contemplated by this Agreement
and the Offering Memorandum, to register the Notes under the Securities Act or
to qualify the Indenture in respect of the Notes under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act").
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Minnesota, is
duly qualified to
3
do business and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to so qualify
would not have, singularly or in the aggregate, a material adverse effect on the
condition (financial or otherwise), results of operations, business or prospects
of the Company (a "Material Adverse Effect"), and has the corporate power and
authority necessary to own or hold its respective properties and to conduct the
businesses in which it is engaged as described in the Offering Memorandum. As of
the Closing Date, upon the consummation of the AF Sale (as defined in the
Offering Memorandum), the Company will not have any subsidiaries.
(d) On the Closing Date the Company will have an authorized
capitalization of 4,500 shares of common stock all of which are issued and
outstanding, and all of the issued shares of capital stock of the Company will
have been duly and validly authorized and issued, will be fully paid and
non-assessable.
(e) The Company has the corporate right, power and authority to
execute and deliver this Agreement, the Indenture, the Registration Rights
Agreement and the Notes (collectively, the "Transaction Documents") and to
perform its obligations hereunder and thereunder; and all corporate action
required to be taken for the due and proper authorization, execution and
delivery of the Transaction Documents and the consummation of the transactions
contemplated thereby have been duly and validly taken.
(f) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding agreement of the
Company.
(g) The Registration Rights Agreement has been duly authorized by
the Company, and when duly executed and delivered by the Company on the Closing
Date, will constitute a valid and legally binding agreement of the Company
enforceable against the Company in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) or an implied covenant of good faith and fair dealing.
(h) The Indenture has been duly authorized by the Company, and when
duly executed and delivered by the Company and the Trustee on the Closing Date,
will constitute a valid and legally binding agreement of the Company enforceable
against the Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law) or
an implied covenant of good faith and fair dealing. At the Closing Date, the
Indenture will conform in all material respects to the requirements of the Trust
Indenture Act and the rules and regulations of the Securities and Exchange
Commission (the "Commission") applicable to an indenture which is qualified
thereunder.
4
(i) The Notes have been duly authorized by the Company, and, when
duly executed, authenticated, issued and delivered as provided in the Indenture
and paid for as provided herein, will be duly and validly issued and
outstanding, and will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) or an
implied covenant of good faith and fair dealing.
(j) The Transaction Documents and each of the Stockholders Agreement
and Management Services Agreements (as defined in the Offering Memorandum)
conform in all material respects to the description thereof contained in the
Offering Memorandum.
(k) The execution, delivery and performance of the Transaction
Documents by the Company, the issuance, authentication, sale and delivery of the
Notes, and compliance with the terms thereof will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject, nor will such
actions result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or, assuming the accuracy of the
representations and warranties of the Initial Purchasers contained herein, any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its properties or assets;
and except for such consents, approvals, authorizations, registrations or
qualifications as may be required under the applicable state securities laws in
connection with the purchase and resale of the Notes by the Initial Purchasers,
no consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the execution,
delivery and performance of the Transaction Documents by the Company, the
issuance, authentication, sale and delivery of the Notes, and compliance with
the terms thereof, and the consummation by the Company of the transactions
contemplated thereby.
(l) KPMG Peat Marwick LLP are independent public accountants with
respect to the Company as required by the Securities Act and the rules and
regulations thereunder for financial statements included in a definitive
prospectus forming part of a registration statement on Form S-1 under the
Securities Act. The historical financial statements (including the related notes
and supporting schedules, if any) included in the Offering Memorandum comply in
all material respects with the requirements applicable to a Registration
Statement on Form S-1 and have been prepared, and fairly present the financial
position of the entity purported to be shown thereby at the respective dates
indicated and, as applicable, the results of its operations and its cash flows
for the respective periods indicated, in accordance with generally accepted
accounting principles consistently
5
applied throughout such periods; and the financial information and financial
data set forth in the Offering Memorandum under the captions "Summary Pro Forma
Financial Data", "Capitalization", "Selected Historical Financial Data" and "Pro
Forma Financial Information" are derived from the accounting records of the
Company and fairly present the data purported to be shown. The pro forma
financial statements contained in the Offering Memorandum have been prepared on
a basis consistent with such historical financial statements, except for the pro
forma adjustments specified therein, and include all material adjustments to the
historical financial data required to reflect the transactions described in the
Offering Memorandum, and give effect to assumptions made on a reasonable basis
and present fairly the historical and proposed transactions contemplated by the
Offering Memorandum and this Agreement.
(m) There are no pending actions or suits or judicial, arbitral,
rule-making or other administrative or other proceedings to which the Company is
a party or of which any property or assets of the Company is the subject which,
singularly or in the aggregate could reasonably be expected to have a Material
Adverse Effect; and to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(n) No action has been taken and no statute, rule or regulation or
order has been enacted, adopted or issued by any governmental agency or body
which prevents the issuance of the Notes or suspends the sale of the Notes in
any jurisdiction; no injunction, restraining order or order of any nature by a
federal or state court of competent jurisdiction has been issued with respect to
the Company which would prevent or suspend the issuance or sale of the Notes, or
the use of the preliminary offering memorandum or the Offering Memorandum in any
jurisdiction; no action, suit or proceeding is pending against or, to the best
of the Company's knowledge, threatened against or affecting the Company, before
any court or arbitrator or any governmental body, agency or official, domestic
or foreign, which could reasonably be expected to interfere with or adversely
affect the issuance of the Notes or in any manner draw into question the
validity thereof or in any manner draw into question the validity of the
Transaction Documents or any action taken or to be taken pursuant thereto.
(o) The Company (i) is not in violation of its certificate of
incorporation or by-laws, (ii) is not in default in any material respect, and no
event has occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which it
is bound or to which any of its properties or assets is subject and (iii) except
as provided in Sections 1(p) and 1(v), is not in violation in any material
respect of any law, ordinance, governmental rule, regulation or court decree to
which it or its property or assets may be subject.
(p) The Company possesses all material licenses, certificates,
authorizations or permits issued by, and has made all declarations and filings
with, the appropriate state,
6
federal or foreign regulatory agencies or bodies which are necessary for the
ownership of its properties or the conduct of its business as described in the
Offering Memorandum, except where the failure to possess or make the same would
not have, singularly or in the aggregate, a Material Adverse Effect, and the
Company has not received notification of any revocation or modification of any
such license, certificate, authorization or permit nor has any reason to believe
that any such license, certificate, authorization or permit will not be renewed.
(q) The Company is not (i) an "investment company" or a company
"controlled by" an investment company within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and the rules
and regulations of the Commission thereunder or (ii) a "holding company" or a
"subsidiary company" of a holding company, or an "affiliate" thereof within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(r) The Company owns or possesses adequate rights to use all
material patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service xxxx registrations, copyrights, licenses and
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) necessary for
the conduct of its business and has no reason to believe that the conduct of its
business will conflict with, and has not received any notice of any claim of
conflict with, any such rights of others.
(s) The Company has good and indefeasible title in fee simple to, or
has valid rights to lease or otherwise use, all items of real and personal
property which are material to the business of the Company, in each case free
and clear of all liens, encumbrances and defects except such as are described in
the Offering Memorandum or such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be
made of such property by the Company or such as would not reasonably be expected
to have a Material Adverse Effect.
(t) No labor disturbance by the employees of the Company exists or,
to the best knowledge of the Company, is imminent which might be expected to
have a Material Adverse Effect.
(u) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section 4975
of the Internal Revenue Code of 1986, as amended from time to time (the "Code"))
or "accumulated funding deficiency" (as defined in Section 302 of ERISA) or any
of the events set forth in Section 4043(b) of ERISA (other than events with
respect to which the 30-day notice requirement under Section 4043 of ERISA has
been waived) has occurred with respect to any employee benefit plan of the
Company which could have a Material Adverse Effect; each such employee benefit
plan is in compliance in all material respects with applicable law, including
ERISA and the Code; the Company has not incurred and does not expect to
7
incur liability under Title IV of ERISA with respect to the termination of, or
withdrawal from, any "pension plan"; and each "pension plan" (as defined in
ERISA) for which the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and to our knowledge, after due inquiry, nothing has occurred, whether
by action or by failure to act, which could cause the loss of such
qualification.
(v) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission, or other release of any kind of toxic
or other wastes or other hazardous substances by, due to, or caused by the
Company (or, to the best knowledge of the Company, any other entity, including
their predecessors, for whose acts or omissions the Company is or may be liable)
upon any of the property now or previously owned or leased by the Company, or
upon any other property, in violation of any statute or any ordinance, rule,
regulation, order, judgment, decree or permit or which would, under any statute
or any ordinance, rule (including rule of common law), regulation, order,
judgment, decree or permit, give rise to any liability, except for any violation
or liability which would not have, singularly or in the aggregate with all such
violations and liabilities, a Material Adverse Effect; there has been no
disposal, discharge, emission or other release of any kind onto such property or
into the environment surrounding such property of any toxic or other wastes or
other hazardous substances with respect to which the Company has knowledge,
except for any such disposal, discharge, emission, or other release of any kind
which would not have, singularly or in the aggregate with all such discharges
and other releases, a Material Adverse Effect.
(w) Since December 28, 1996 there has not been any change in the
capital stock or long-term debt of the Company (other than scheduled redemptions
or payments) or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the management, financial
position, stockholders' equity or results of operations of the Company, other
than as set forth or contemplated in the Offering Memorandum.
(x) The Company has filed all federal, state, local and foreign
income and franchise tax returns required to be filed through the date hereof
and has paid all material taxes due thereon, and no tax deficiency has been
determined adversely to the Company which has had (nor does the Company have any
knowledge of any tax deficiency which, if determined adversely to the Company,
might reasonably be expected to have) a Material Adverse Effect.
(y) Except as set forth in or contemplated by the Offering
Memorandum, since December 28, 1996, the Company has not (i) issued or granted
any securities (other than under plans, agreements and arrangements disclosed
in, and in effect on the date of, the Offering Memorandum), (ii) incurred any
liability or obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business, (iii)
entered into any transaction not in the ordinary course of business or (iv)
declared or paid any dividend on its capital stock.
8
(bb) There are no securities of the Company registered under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or listed on a
national securities exchange or quoted in a U.S. automated inter-dealer
quotation system.
(cc) Neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D under the Securities Act ("Regulation D")) of the Company
has directly, or through any agent (provided that no representation is made as
to the Initial Purchasers or any person acting on their behalf), (i) sold,
offered for sale, solicited offers to buy or otherwise negotiated in respect of,
any security (as defined in the Securities Act) which is or will be integrated
with the offering and sale of the Notes in a manner that would require the
registration of the Notes under the Securities Act or (ii) engaged in any form
of general solicitation or general advertising (within the meaning of Regulation
D) in connection with the offering of the Notes.
(dd) Neither the Company nor its affiliates has taken, and the
Company will not take, directly or indirectly, any action designed to, or that
might reasonably be expected to, cause or result in stabilization or
manipulation of the price of the Notes.
(ee) None of the proceeds of the sale of the Notes will be used,
directly or indirectly, for the purpose of purchasing or carrying any margin
security, for the purpose of reducing or retiring any indebtedness which was
originally incurred to purchase or carry any margin security or for any other
purpose which might cause any of the Notes to be considered a "purpose credit"
within the meanings of Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System.
(ff) On the Closing Date, the Company (after giving effect to the
issuance of the Notes) will be Solvent. As used in this paragraph (ff), the term
"Solvent" means, with respect to a particular date, that on such date (i) the
aggregate fair value (or present fair salable value) of the assets of the
Company is not less than its total existing debts and liabilities (including
contingent liabilities) as they become absolute and matured in the normal course
of business and (ii) the Company does not have an unreasonably small amount of
capital with which to conduct its business. In computing the amount of such
contingent liabilities at any time, it is intended that such liabilities will be
computed at the amount that, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
(gg) Neither the Company nor to the best of the Company's knowledge,
any director, officer, agent, employee or other person associated with or acting
on behalf of the Company, has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
9
(hh) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(ii) The Company has and will maintain insurance covering its
properties, operations, personnel and businesses, which insurance is in amounts
and insures against such losses and risks, in each case as is adequate in its
reasonable business judgment to protect the Company and its businesses. The
Company has not received notice from any insurer or agent of such insurer that
capital improvements or other expenditures will have to be made in order to
continue such insurance.
(jj) Except as described in "Certain Related Transactions" in the
Offering Memorandum, the Company is not a party to any contract, agreement or
understanding with any person that would give rise to a valid claim against the
Company or the Initial Purchasers for a brokerage commission, finder's fee or
like payment.
(kk) The Notes satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
2. PURCHASE OF THE NOTES BY THE INITIAL PURCHASERS. (a) On the basis
of the representations, warranties and agreements herein contained, and subject
to the terms and conditions set forth herein, the Company agrees to issue and
sell to the Initial Purchasers, and the Initial Purchasers agree to purchase
from the Company, the principal amount of the Notes as set forth opposite the
name of such Initial Purchaser on Schedule 1 hereto, at a purchase price equal
to 97% of the principal amount thereof by wire transfer of immediately available
funds.
(b) The Company shall not be obligated to deliver any of the Notes,
except upon payment for all of the Notes to be purchased as provided herein.
3. SALE AND RESALE OF THE NOTES BY THE INITIAL PURCHASERS. (a) The
Initial Purchasers have advised the Company that they propose to offer the Notes
for resale upon the terms and conditions set forth in this Agreement and in the
Offering Memorandum. Each of the Initial Purchasers hereby represents and
warrants to, and agrees with, the Company that it (i) is purchasing the Notes
pursuant to a private sale exempt from registration under the Securities Act,
(ii) will not solicit offers for, or offer or sell, the Notes by means of any
form of general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act, and (iii)
will solicit offers for the Notes only from, and will offer, sell or deliver the
Notes, as part of its initial
10
offering, only to persons in the United States whom the Initial Purchasers
reasonably believes to be qualified institutional buyers ("Qualified
Institutional Buyers") as defined in Rule 144A under the Securities Act, as such
rule may be amended from time to time ("Rule 144A") 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 it that each such
account is a Qualified Institutional Buyer 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.
(b) The Company acknowledges and agrees that the Initial Purchasers
may sell Securities to any of their respective affiliates which are Qualified
Institutional Buyers and that any such affiliates may sell Securities purchased
by it to the Initial Purchasers.
4. DELIVERY OF AND PAYMENT FOR THE NOTES. (a) Delivery of and
payment for the Notes shall be made at the offices of Xxxxxxxx & X'Xxxx, LLP,
New York, New York, or at such other place as shall be agreed upon by the
Initial Purchasers and the Company, at 10:00 A.M., New York City time, on May
21, 1997 or at such other time or date, not later than seven full business days
thereafter, as shall be agreed upon by the Initial Purchasers and the Company
(such date and time of payment and delivery being herein called the "Closing
Date").
(b) On the Closing Date, payment of the purchase price for the Notes
shall be made to the Company by wire transfer of same-day funds to such account
or accounts as the Company shall specify prior to the Closing Date or by such
other means as the parties hereto shall agree prior to the Closing Date against
delivery to the Initial Purchasers of the certificates evidencing the Notes.
Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligations of the
Initial Purchasers hereunder. Upon delivery, the Notes shall be in global form,
registered in such names and in such denominations as the Initial Purchasers
shall request in writing not less than two full business days prior to the
Closing Date. For the purpose of expediting the checking and packaging of
certificates evidencing the Notes, the Company agrees to make such certificates
available for inspection by the Initial Purchasers at least 24 hours prior to
the Closing Date.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the
Initial Purchasers:
(a) To furnish to the Initial Purchasers, without charge, as many
copies of the Offering Memorandum and any supplements and amendments thereto as
they may reasonably request.
(b) To advise the Initial Purchasers promptly and, if requested,
confirm such advice in writing, of the happening of any event which makes any
statement of a material fact made in the Offering Memorandum untrue or which
requires the making of
11
any additions to or changes in the Offering Memorandum (as amended or
supplemented from time to time) in order to make the statements therein, in
light of the circumstances under which they were made, not misleading and not to
effect such amendment or supplementation without the consent of the Initial
Purchasers; to advise the Initial Purchasers promptly of any order preventing or
suspending the use of the preliminary offering memorandum or the Offering
Memorandum, or the suspension of the qualification of the Securities for
offering or sale in any jurisdiction and of the initiation or threatening of any
proceeding for any such purpose; and to use reasonable best efforts to prevent
the issuance of any such order preventing or suspending the use of the
preliminary offering memorandum or the Offering Memorandum or suspending any
such qualification and, if any such suspension is issued, to obtain the lifting
thereof at the earliest possible time.
(c) Prior to making any amendment or supplement to the Offering
Memorandum, the Company shall furnish a copy thereof to each of the Initial
Purchasers and counsel to the Initial Purchasers and will not effect any such
amendment or supplement to which the Initial Purchasers shall reasonably object
by notice to the Company after a reasonable period to review, which shall not in
any case be longer than five business days after receipt of such copy.
(d) If, at any time prior to completion of the distribution of the
Notes by the Initial Purchasers to other purchasers, any event shall occur or
condition exist as a result of which it is necessary, in the opinion of counsel
for the Initial Purchasers or counsel for the Company, to amend or supplement
the Offering Memorandum in order that the Offering Memorandum will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in light of the
circumstances existing at the time it is delivered to a purchaser, or if it is
necessary to amend or supplement the Offering Memorandum to comply with
applicable law, to promptly prepare such amendment or supplement as may be
necessary to correct such untrue statement or omission or so that the Offering
Memorandum, as so amended or supplemented, will comply with applicable law and
to furnish to the Initial Purchasers such number of copies thereof as they may
reasonably request.
(e) So long as the Notes are outstanding and are "Restricted
Securities" within the meaning of Rule 144(a)(3) under the Securities Act, to
furnish to holders of the Notes and prospective purchasers of Notes designated
by such holders, upon request of such holders or such prospective purchasers,
the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act, unless the Company is then subject to and in compliance with
Section 13 or 15(d) of the Exchange Act.
(f) For a period of five years following the Closing Date, to
furnish to the Initial Purchasers copies of any annual reports, quarterly
reports and current reports filed with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar forms as may be designated by the Commission, and
such other documents, reports and information as shall be furnished by the
Company to the Trustee or to the holders of the Notes pursuant
12
to the Indenture or the Exchange Act or any rule or regulation of the Commission
thereunder.
(g) To use its reasonable best efforts to qualify the Notes for sale
under the securities or Blue Sky laws of such jurisdictions as the Initial
Purchasers may reasonably designate and to continue such qualifications in
effect so long as required for the distribution of the Notes. The Company will
also arrange for the determination of the eligibility for investment of the
Notes under the laws of such jurisdictions as the Initial Purchasers may
reasonably request. Notwithstanding the foregoing, the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which they
are not so qualified or to file a general consent to service of process in any
jurisdiction.
(h) To use its reasonable best efforts to permit the Notes to be
designated Private Offerings, Resales and Trading through Automated Linkages
Market ("PORTAL") securities in accordance with the rules and regulations
adopted by the National Association of Securities Dealers, Inc. ("NASD")
relating to trading in the PORTAL Market and to permit the Notes to be eligible
for clearance and settlement through the Depository Trust Company (the "DTC").
(i) Not to, and will cause its affiliates (as such term is defined
in Rule 501(B) under the Securities Act) not to, sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect (except as contemplated in the
Offering Memorandum or hereby) of any security (as defined in the Securities
Act) which could be integrated with the sale of the Notes in a manner which
would require the registration of the Notes under the Securities Act.
(j) Except following the effectiveness of the Exchange Offer or the
Shelf Registration Statement, as the case may be, not to, and will cause its
affiliates (as such term is defined in Rule 501(B) under the Securities Act) not
to, and will not authorize or knowingly permit any person acting on their behalf
to, solicit any offer to buy or offer to sell the Notes by means of any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act.
(k) To apply the net proceeds from the sale of the Notes as set
forth in the Offering Memorandum.
(l) For a period of 90 days from the date of the Offering
Memorandum, not to offer for sale, sell, contract to sell or otherwise dispose
of, directly or indirectly, or file a registration statement for, or announce
any offer, sale, contract for sale of or other disposition of any debt
securities issued or guaranteed by the Company or any of its subsidiaries (other
than the Notes) without the prior written consent of the Initial Purchasers.
13
(m) In connection with the offering, until the Initial Purchasers
shall have notified the Company of the completion of the resale of the Notes,
neither the Company nor any of its affiliated purchasers (as defined in Rule
10b-6 under the Exchange Act), either alone or with one or more other persons,
will bid for or purchase, for any account in which it or any of its affiliated
purchasers has a beneficial interest, any Notes, or attempt to induce any person
to purchase any Notes; and neither it nor any of its affiliated purchasers will
make bids or purchase for the purpose of creating actual, or apparent, active
trading in or of raising the price of the Notes.
6. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The obligations of
the Initial Purchasers hereunder are subject to the accuracy, on the date hereof
and on the Closing Date, of the representations and warranties of the Company
contained herein, to the accuracy of the statements of the Company made in any
certificates delivered pursuant to provisions hereof, to the performance by the
Company of its obligations hereunder, and to each of the following additional
terms and conditions:
(a) The Initial Purchasers shall not have discovered and disclosed
to the Company on or prior to the Closing Date that the Offering Memorandum or
any amendment or supplement thereto contains an untrue statement of a fact
which, in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Initial
Purchasers, is material or omits to state a fact which, in the opinion of such
counsel is material and is required to be stated therein or is necessary to make
the statements therein not misleading; and no stop order suspending the sale of
the Securities in any jurisdiction shall have been issued and no proceeding for
that purpose shall have been commenced or shall be pending or threatened.
(b) All corporate proceedings and other legal matters incident to
the authorization, form and validity of each of the Transaction Documents, the
Notes and the Offering Memorandum, and all other legal matters relating to the
Transaction Documents and the transactions contemplated thereby shall be
reasonably satisfactory in all material respects to counsel for the Initial
Purchasers, and the Company shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass upon
such matters.
(c) (i) Xxxxxxxx & O'Neil, LLP shall have furnished to the Initial
Purchasers their written opinion, as special counsel to the Company, addressed
to the Initial Purchasers and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers, substantially to the effect
set forth in Exhibit B-1 hereto and (ii) Xxxxxxx, Street and Deinard shall have
furnished to the Initial Purchasers their written opinion as local counsel to
the Company, addressed to the Initial Purchasers and dated the Closing Date, in
form and substance reasonably satisfactory to the Initial Purchasers,
substantially to the effect set forth in Exhibit B-2 hereto.
(d) The Initial Purchasers shall have received from Xxxxxxx Xxxxxxx
& Xxxxxxxx, counsel for the Initial Purchasers, such opinion or opinions, dated
the Closing Date, with respect to such matters as the Initial Purchasers may
reasonably require, and the
14
Company shall have furnished to such counsel such documents and information as
they reasonably request for the purpose of enabling them to pass upon such
matters.
(e) With respect to the letter of KPMG Peat Marwick LLP ("KPMG")
delivered to the Initial Purchasers concurrently with the execution of this
Agreement (the "Initial Letter"), the Company shall have furnished to the
Initial Purchasers a letter (the "Bring-Down Letter") of KPMG addressed to the
Initial Purchasers and dated the Closing Date (i) confirming that they are
independent public accountants within the meaning of Rule 101 of the American
Institute of Certified Public Accountants' Code of Professional Conduct and its
rulings and interpretations; (ii) stating, as of the date of the Bring-Down
Letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Offering Memorandum, as of a date not more than five days prior to the date of
such Bring-Down Letter), that the conclusions and findings of the firm with
respect to the financial information and other matters covered by the Initial
Letter are accurate and (iii) confirming in all material respects the
conclusions and findings set forth in its Initial Letter.
(f) The Company shall have furnished to the Initial Purchasers a
certificate, dated the Closing Date, of its President or any Vice President and
its chief financial officer stating that (A) such officers have carefully
examined the Offering Memorandum, (B) in their opinion, as of the date hereof
the Offering Memorandum did not include any untrue statement of a material fact
and did not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and since the date
hereof, no event has occurred which should have been set forth in a supplement
or amendment to the Offering Memorandum and (C) to the best of their knowledge
after reasonable investigation, as of the Closing Date, the representations and
warranties of the Company in this Agreement are true and correct, the Company
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, and subsequent
to the date of the most recent financial statements in the Offering Memorandum,
there has been no material adverse change in the financial position or results
of operations of the Company, or any change, or any development including a
prospective change, in or affecting the condition (financial or otherwise),
results of operations, business or prospects of the Company, except as set forth
in the Offering Memorandum.
(g) The Initial Purchasers shall have received on the Closing Date
the Registration Rights Agreement executed and delivered by duly authorized
officers of the Company.
(h) The Notes shall have been approved by the NASD for trading in
the PORTAL Market.
(i) The Indenture shall have been duly executed and delivered by the
Company and the Trustee and the Notes shall have been duly executed and
delivered by the Company and duly authenticated by the Trustee.
15
(j) If any event shall have occurred that requires the Company under
Section 5(c) hereof to prepare an amendment or supplement to the Offering
Memorandum, such amendment or supplement shall have been prepared, the Initial
Purchasers shall have been given a reasonable opportunity to comment thereon,
and copies thereof shall have been delivered to the Initial Purchasers
reasonably in advance of the Closing Date.
(k) There shall not have occurred any invalidation of Rule 144A
under the Securities Act by any court or any withdrawal or proposed withdrawal
of any rule or regulation under the Securities Act or the Exchange Act by the
Commission or any amendment or proposed amendment thereof by the Commission
which in the reasonable judgment of the Initial Purchasers would materially
impair the ability of the Initial Purchasers to purchase, hold or effect resales
of the Notes as contemplated hereby.
(l) At the Closing Date, there shall exist no default or event of
default under the Indenture or the Senior Bank Facilities (as defined in the
Offering Memorandum).
(m) Since December 28, 1996, except for the transactions
contemplated by the Offering Memorandum, there shall not have been any change in
the capital stock or long-term debt of the Company or any change, or any
development involving a prospective change, in or affecting the condition
(financial or otherwise), results of operations, business or prospects of the
Company, the effect of which, in any such case described above, is, in the
reasonable judgment of the Initial Purchasers, so material and adverse as to
make it impracticable or inadvisable to proceed with the sale or delivery of the
Notes on the terms and in the manner contemplated in the Offering Memorandum
(exclusive of any supplement).
(n) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the Notes by any
"nationally recognized statistical rating organization," as that term is defined
by the Commission for purposes of Rule 436(g)(2) of the rules and regulations of
the Commission under the Securities Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review (other than an
announcement with positive implications of a positive upgrading) its rating of
the Notes.
(o) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or limited, or minimum prices
shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, or trading in any securities of the Company on
any exchange or in the over-the-counter market shall have been suspended or,
(ii) a general moratorium on commercial banking activities shall have been
declared by Federal or New York State authorities, or (iii) an outbreak or
escalation of hostilities or a declaration by the United States of a national
emergency or war, or (iv) a material adverse change in general economic,
political or financial conditions (or the effect of international
16
conditions on the financial markets in the United States shall be such) the
effect of which, in the case of this clause (iv), is, in the reasonable judgment
of the Initial Purchasers, so material and adverse as to make it impracticable
or inadvisable to proceed with the sale or delivery of the Notes on the terms
and in the manner contemplated by this Agreement and the Offering Memorandum
(exclusive of any supplement).
(p) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental agency
which would, as of the Closing Date, prevent the issuance or sale of the Notes;
and no injunction, restraining order or order of any other nature by a federal
or state court of competent jurisdiction shall have been issued as of the
Closing Date which would prevent the issuance or sale of the Notes.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
7. TERMINATION. The obligations of the Initial Purchasers hereunder
may be terminated by the Initial Purchasers, in their absolute discretion, by
notice given to and received by the Company prior to delivery of and payment for
the Notes if, prior to that time, any of the events described in Sections 6(k),
(m), (n), (o) or (p) shall have occurred and be continuing.
8. REIMBURSEMENT OF INITIAL PURCHASERS' EXPENSES. If (a) this
Agreement shall have been terminated pursuant to Section 7, (b) the Company
shall fail to tender the Notes for delivery to the Initial Purchasers for any
reason permitted under this Agreement or (c) the Initial Purchasers shall
decline to purchase the Notes for any reason permitted under this Agreement, the
Company shall reimburse the Initial Purchasers for the reasonable fees and
expenses of their counsel and for such other reasonable out-of-pocket expenses
as shall have been reasonably incurred by the Initial Purchasers in connection
with this Agreement and the proposed purchase of the Notes.
9. INDEMNIFICATION. (a) The Company shall indemnify and hold
harmless the Initial Purchasers, their respective affiliates, and their
respective officers, directors, employees, representatives and agents, and each
person, if any, who controls an Initial Purchaser within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 9 and Section 10 as the Initial Purchasers) from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Notes), to which that Initial
Purchasers may become subject, under the Securities Act, the Exchange Act or any
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any preliminary offering memorandum or the Offering Memorandum
or in any amendment or supplement thereto or any information provided
17
by the Company pursuant to Section 5(e) hereof or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse the
Initial Purchasers promptly upon demand for any legal or other expenses
reasonably incurred by the Initial Purchasers in connection with investigating
or defending or preparing to defend against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with any Initial Purchasers'
Information; and provided further that with respect to any such untrue statement
or omission made in the preliminary offering memorandum, the indemnity agreement
contained in this Section 9(a) shall not inure to the benefit of the Initial
Purchasers, to the extent that the sale to the person asserting any such loss,
claim, damage, liability or action was an initial resale by the Initial
Purchasers and any such loss, claim, damage, liability or action is a result of
the fact that both (i) to the extent required by applicable law, a copy of the
Offering Memorandum was not sent or given to such person at or prior to the
written confirmation of the sale of such Notes to such person, and (ii) the
untrue statement or omission in the preliminary offering memorandum was
corrected in the Offering Memorandum unless, in either case, such failure to
deliver the Offering Memorandum was a result of non-compliance by the Company
with Section 5(c).
(b) The Initial Purchasers shall, severally and not jointly,
indemnify and hold harmless the Company, its affiliates, and its officers,
directors, employees, representatives and agents, and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act (collectively referred to for purposes of this Section 9 and Section 10 as
the Company), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company may become
subject, under the Securities Act, the Exchange Act or any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in
any preliminary offering memorandum or the Offering Memorandum or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with the Initial Purchasers'
Information, and shall reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9,
18
notify the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 9 except to the extent that such indemnifying party has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 9. If any such claim or
action shall be brought against an indemnified party, it shall notify the
indemnifying party thereof, and the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
each indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel will be at
the expense of such indemnified party unless (1) the employment of counsel by
the indemnified party has been authorized in writing by the indemnifying party,
(2) the indemnified party has reasonably concluded (based on advice of counsel)
that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying
party, (3) a conflict or potential conflict exists (based on advice of counsel
to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct
the defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the commencement
of the action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm of attorneys (in addition to any local counsel) at any one
time for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 9(a) and 9(b), shall
use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
The obligations of the Company and the Initial Purchasers in this
Section 9 and in Section 10 are in addition to any other liability which the
Company or the Initial Purchasers, as the case may be, may otherwise have.
19
10. CONTRIBUTION. If the indemnification provided for in Section 9
is unavailable or insufficient to hold harmless an indemnified party under
Section 9(a) or 9(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Initial Purchasers on the other from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Initial Purchasers on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Initial Purchasers on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Notes purchased under this Agreement (before deducting expenses) received
by the Company, on the one hand, and the total discounts and commissions
received by the Initial Purchasers with respect to the Notes purchased under
this Agreement, on the other hand, bear to the total gross proceeds from the
offering of the Notes under this Agreement, in each case as set forth in the
table on the cover page of the Offering Memorandum. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
the Initial Purchasers' Information on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Initial
Purchasers agree that it would not be just and equitable if contributions
pursuant to this Section 10 were to be determined by pro rata allocation or by
any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 10 shall be deemed to include, for
purposes of this Section 10, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 10, Initial
Purchasers shall not be required to contribute any amount in excess of the
amount by which the total price at which the Notes sold and distributed by it
was offered to purchasers exceeds the amount of any damages which the Initial
Purchasers have otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
11. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the Company
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except as provided in
Sections 9 and 10 with respect to
20
affiliates, officers, directors, employees, representatives, agents and
controlling persons of the Company and the Initial Purchasers and in Section
5(f) with respect to holders and prospective purchasers of the Notes. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 11, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
12. EXPENSES. The Company agrees with the Initial Purchasers to pay
(a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Notes and any taxes payable in that connection, (b) the costs
incident to the preparation and printing of the preliminary offering memorandum
and the Offering Memorandum and any amendments or supplements thereto, (c) the
costs of distributing the preliminary offering memorandum and the Offering
Memorandum and any amendments or supplements thereto, (d) the costs of printing,
reproducing and distributing the Transaction Documents, (e) the costs incident
to the preparation, printing and delivery of the certificates representing the
Notes, including stamp duties and stock transfer taxes, if any, payable upon
issuance of any of the Notes, (f) the fees and disbursements of the Company's
counsel and accountants, (g) the fees and disbursements of accountants for the
Company, (h) any fees charged by rating agencies for rating the Notes, (i) the
fees and expenses of qualifying the Notes under securities laws of the several
jurisdictions as provided in Section 5(g) and of preparing, printing and
distributing a Blue Sky memorandum (including related reasonable fees and
expenses of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the Initial Purchasers), (j)
the fees and expenses of the Trustee and any paying agent, (including related
fees and expenses of any counsel for such parties), (k) all expenses and listing
fees incurred in connection with the application for quotation of the Notes on
the PORTAL Market and the approval of the Notes for book-entry transfer by The
Depository Trust Company, and (l) all other reasonable costs and expenses
incident to the performance of the Company's obligations hereunder which are not
otherwise specifically provided for in this Section; provided, however, that
except as provided in this Section 12 and Section 8, the Initial Purchasers
shall pay their own costs and expenses, including the costs and expenses of
their counsel.
13. SURVIVAL. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Initial
Purchasers contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Notes and shall remain in full force and effect, regardless of
any termination or cancellation of this Agreement or any investigation made by
or on behalf of any of them or any person controlling any of them.
14. NOTICES. All statements, requests, notices and agreements
hereunder shall be in writing, and:
21
(a) if to the Initial Purchasers, shall be delivered or sent
by mail or facsimile transmission to c/o Chase Securities Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxx
(Fax: 212-270- 0994); or
(b) if to the Company, shall be delivered or sent by mail or
facsimile transmission to the address of the Company: Xxx Xxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, Attn: Xxxxxx X. Xxxx,
with a copy to Xxxxx Xxxxx, Esq., Xxxxxxxx & O'Neil, LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
provided, however, that any notice to the Initial Purchasers pursuant to Section
9(c) shall be delivered or sent by mail to the Initial Purchasers at c/o Chase
Securities Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Legal Department. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
15. DEFINITION OF TERMS. For purposes of this Agreement, "business
day" means any day on which the New York Stock Exchange, Inc. is open for
trading.
16. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York but without giving effect
to applicable principles of conflicts of law to the extent that the application
of the laws of another jurisdiction would be required thereby.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. AMENDMENTS. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
19. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument will become a binding agreement among the Company and the
Initial Purchasers in accordance with its terms.
Very truly yours,
XXXXX XXXX PET FOOD ACQUISITION CO.
By: /s/ Xxx Xxxxx
----------------------------------
Name: Xxx Xxxxx
Title: Executive Vice President
Accepted:
CHASE SECURITIES INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Authorized Signatory
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ X.X. Xxxxxxxx
----------------------------------
Authorized Signatory
EXHIBIT B-1
FORM OF OPINION OF
XXXXXXXX & X'XXXX LLP
Xxxxxxxx & O'Neil LLP shall furnish to the Initial Purchasers their
written opinion, as special counsel to Xxxxx Xxxx Pet Food Acquisition Co.
(the "MergerSub") and the Company, addressed to the Initial Purchasers and
dated the Closing Date, in form and substance reasonably satisfactory to
the Initial Purchasers, to the effect that:
1. Assuming that each of the Purchase Agreement and the
Registration Rights Agreement has been duly authorized and executed,
the Purchase Agreement has been duly delivered by the MergerSub and
the Registration Rights Agreement has been duly delivered by the
Company, and each of the Purchase Agreement and the Registration
Rights Agreement constitutes a valid and legally binding agreement,
enforceable against such party in accordance with its terms, except
as the enforcement thereof may be limited by applicable bankruptcy,
reorganization, insolvency, or other similar laws affecting
creditors' rights generally or by general principles of equity
(regardless of whether enforcement is sought in a proceeding in
equity or at law).
2. Assuming that the Indenture has been duly authorized
and executed by the Company and, assuming due authorization,
execution and delivery thereof by the Trustee, the Indenture has
been duly delivered by the Company, and constitutes a valid and
legally binding agreement of the Company enforceable in accordance
with its terms, except as the enforcement thereof may be limited by
applicable bankruptcy, reorganization, insolvency, or other similar
laws affecting creditors' rights generally or by general principles
of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
3. Assuming that the Notes have been duly authorized,
executed and issued by the Company and, assuming due authentication
thereof by the Trustee and upon payment and delivery in accordance
with the Purchase Agreement, the Notes will constitute valid and
legally binding obligations of the Company enforceable in accordance
with their respective terms, except as the enforcement thereof may
be limited by applicable bankruptcy, reorganization, insolvency, or
other similar laws affecting creditors' rights generally or by
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law). The statements made in
the Offering Memorandum under the caption "Description of Notes" and
"Exchange and Registration Rights Agreement," insofar as they
purport to constitute summaries of certain terms of the Indenture,
the Notes
2
and the Registration Rights Agreement, constitute accurate summaries
of the terms of such documents in all material respects.
4. The execution, delivery and performance by the Company
of each of the Transaction Documents, the issuance, authentication,
sale and delivery of the Notes and compliance by the Company with
the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents will not result in any
violation of the provisions of the charter or by-laws of the Company
or any statute or any judgment, order, decree, rule or regulation of
any court or governmental agency or body having jurisdiction over
the Company or any of its properties or assets except for such as
would not have a Material Adverse Effect; and to our knowledge no
consent, approval, authorization or order of, or filing or
registration with, any such court or arbitrator or governmental
agency or body under any such statute, judgment, order, decree, rule
or regulation is required for the execution, delivery and
performance by the Company of each of the Transaction Documents, the
issuance, authentication, sale and delivery of the Notes and
compliance by the Company with the terms thereof and the
consummation of the transactions contemplated by the Transaction
Documents, except for such consents, approvals, authorizations,
filings, registrations or qualifications (i) which have been
obtained or made prior to the Closing Date and (ii) as may be
required to be obtained or made under the Securities Act and
applicable state securities laws as provided in the Registration
Rights Agreement.
5. Neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution or
delivery of the Notes will violate Regulation G, T, U or X of the
Federal Reserve Board.
6. To the knowledge of such counsel, there is no
litigation or other proceedings to which the Company is a party
which questions the validity or enforceability of any of the
Transaction Documents or any action taken or to be taken pursuant
thereto.
7. The Company is not an "investment company" or a
company "controlled" by an investment company within the meaning of
the Investment Company Act.
8. Assuming (i) the accuracy of the representations,
warranties and agreements of the Company and of the Initial
Purchasers contained in the Purchase Agreement and (ii) that the
persons who buy the Notes in the initial resale thereof are
Qualified Institutional Buyers, the issuance and sale of the Notes
and the offer, resale and delivery of the Notes in the manner
contemplated in the Offering Memorandum and the Purchase Agreement,
are
3
exempt from the registration requirements of the Securities Act and
it is not necessary to qualify the Indenture under the Trust
Indenture Act.
Such counsel shall state that they have participated in conferences
with representatives of the Company and with representatives of its
independent accountants, and you and your counsel at which conferences the
contents of the Offering Memorandum, any amendment thereof and supplement
thereto and related matters were discussed, and, although such counsel
assume no responsibility for the factual accuracy or completeness of the
Offering Memorandum, any amendment thereof or supplement thereto (except
as expressly provided above), such counsel believes that the Offering
Memorandum or any amendment thereof or supplement thereto (other than the
financial statements and other financial and statistical information
contained therein, as to which such counsel need express no belief)
contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (i) as to matters
of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials which are
furnished to the Initial Purchasers and (ii) with respect to the due
authorization, execution and delivery of the Transaction Documents by the
Company, on the opinion of Xxxxxxx, Street and Deinard.
EXHIBIT X-0
XXXX XX XXXXXXX XX
XXXXXXX, XXXXXX AND XXXXXXX
Xxxxxxx, Street and Deinard shall furnish to the Initial Purchasers
their written opinion, as local counsel to Xxxxx Xxxx Pet Food Acquisition
Co. ("MergerSub") and the Company, addressed to the Initial Purchasers and
dated the Closing Date, in form and substance reasonably satisfactory to
the Initial Purchasers, to the effect that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Minnesota, and has all power and authority necessary to own
or hold its properties and to conduct the businesses in which it is
engaged as described in the Offering Memorandum. To such counsel's
knowledge, upon consummation of the AF Sale (as defined in the
Offering Memorandum), the Company has no subsidiaries except for
certain dormant subsidiaries listed on Annex A.
2. The Company's authorized capitalization is 4,500
shares of common stock all of which are issued and outstanding, and,
to such counsel's knowledge all of the issued shares of capital
stock of the Company have been duly authorized and validly issued
and are fully paid and nonassessable.
3. The Company has the corporate right, power and
authority to execute and deliver the Transaction Documents and to
perform its obligations thereunder; and all corporate action
required to be taken for the due and proper authorization, execution
and delivery of the Transaction Documents and the consummation of
the transactions contemplated thereby have been duly and validly
taken.
4. The Purchase Agreement has been duly authorized,
executed and delivered by MergerSub.
5. Each of the Registration Rights Agreement and the
Indenture has been duly authorized, executed and delivered by the
Company.
6. The Notes have been duly authorized, executed and
issued by the Company.
7. The execution, delivery and performance by MergerSub
of the Purchase Agreement and by the Company of each of the
Transaction Documents, the issuance, authentication, sale and
delivery of the Notes and compliance by the Company with the terms
thereof and the consummation of the transactions contemplated by the
Transaction Documents will not
2
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the MergerSub or the Company pursuant to, any
material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument set forth on Schedule A to which
the Company is a party or by which the MergerSub or the Company is
bound or to which any of the property or assets of the MergerSub or
the Company is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of the Company
or any Minnesota statute or any judgment, order, decree, rule or
regulation of any court or governmental agency or body having
jurisdiction over the MergerSub or the Company or any of its
properties or assets except for such conflicts, breaches,
violations, defaults, liens, charges or encumbrances as would not
have a Material Adverse Effect; and to our knowledge no consent,
approval, authorization or order of, or filing or registration with,
any such court or arbitrator or governmental agency or body under
any such statute, judgment, order, decree, rule or regulation is
required for the execution, delivery and performance by the
MergerSub of the Purchase Agreement and by the Company of each of
the Transaction Documents, the issuance, authentication, sale and
delivery of the Securities and compliance by the MergerSub or the
Company with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for
such consents, approvals, authorizations, filings, registrations or
qualifications (i) which have been obtained or made prior to the
Closing Date and (ii) as may be required to be obtained or made
under the Securities Act and applicable state securities laws as
provided in the Registration Rights Agreement.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the MergerSub or the Company and public officials
which are furnished to the Initial Purchasers.
Schedule 1
Principal Amount
of Notes to
Initial Purchaser Be Purchased
----------------- ----------------
Chase Securities Inc. $ 60,000,000
Credit Suisse First Boston Corporation 60,000,000
$ 120,000,000
=============
