EXHIBIT 4.3
AMETEK, INC.
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$225,000,000
7.20% SENIOR NOTES DUE 2008
PURCHASE AGREEMENT
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New York, New York
July 14, 1998
XXXXXXX XXXXX XXXXXX
XXXXXXX BROTHERS INC
BANCAMERICA XXXXXXXXX XXXXXXXX
XX XXXX. XXXXX INCORPORATED
c/o Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
AMETEK, Inc., a Delaware corporation (the "Company"), proposes, upon
the terms and conditions set forth herein, to issue and sell to the parties
named in Schedule I hereto (the "Initial Purchasers"), $225,000,000 principal
amount of its 7.20% Senior Notes Due 2008 (the "Securities"). The Securities
are to be issued under an indenture (the "Indenture") dated as of July 17, 1998
between the Company and Chase Manhattan Trust Company, National Association, as
trustee.
The Company wishes to confirm as follows their agreement with the
Initial Purchasers in connection with the purchase and resale of the Securities.
1. Preliminary Offering Memorandum and Offering Memorandum. The
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Securities will be offered and sold to the Initial Purchasers without
registration under the Securities Act of 1933, as amended (the "Act"), in
reliance on an exemption pursuant to Section 4(2) under the Act and the rules
and regulations promulgated thereunder. The Company has prepared a preliminary
offering memorandum, dated July 2, 1998 (the "Preliminary Offering Memorandum"),
and an offering memorandum, dated July 14, 1998 (the "Offering Memorandum"),
setting forth information regarding the Company and the Securities. Unless
stated herein to the contrary, all references herein to the Offering Memorandum
are to the Offering Memorandum at the date thereof and are not meant to include
any supplement or amendment subsequent thereto. The Company hereby confirms
that it
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has authorized the use of the Preliminary Offering Memorandum and the Offering
Memorandum in connection with the offering and resale of the Securities by the
Initial Purchasers on the terms and subject to the conditions set forth herein.
The Company understands that the Initial Purchasers propose to make
offers and sales ("Exempt Resales") of the Securities purchased by the Initial
Purchasers hereunder only on the terms and in the manner set forth in the
Offering Memorandum and Section 2 hereof, as soon as the Initial Purchasers deem
advisable after this Agreement has been executed and delivered, (i) to persons
in the United States whom the Initial Purchasers reasonably believe to be
qualified institutional buyers ("Qualified Institutional Buyers") as defined in
Rule 144A under the Act, as such rule may be amended from time to time ("Rule
144A"), in transactions under Rule 144A and (ii) outside the United States to
persons other than U.S. persons in reliance upon and in compliance with
Regulation S under the Act, as such regulation may be amended from time to time
("Regulation S"). The persons specified in clauses (i) and (ii) are referred to
herein as the "Eligible Purchasers." As used herein, the terms "United States"
and "U.S. persons" have the respective meanings given them in Regulation S.
It is understood and acknowledged that upon original issuance thereof,
and until such time as the same is no longer required under the applicable
requirements of the Act, each of the Securities (and each security issued in
exchange therefor or in substitution thereof) shall bear the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT (AN "ACCREDITED INVESTOR")) OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2)
AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED
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STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D)
OUTSIDE THE UNITED STATES TO PERSONS OTHER THAN U.S. PERSONS IN OFFSHORE
TRANSACTIONS MEETING THE REQUIREMENTS OF RULE 904 UNDER REGULATION S UNDER
THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
It is also understood and acknowledged that holders (including
subsequent transferees) of the Securities will have the registration rights set
forth in the registration rights agreement (the "Registration Rights Agreement")
substantially in the form attached hereto as Exhibit A to be dated as of the
Closing Date (as defined) by and among the Company and the Initial Purchasers.
2. Agreements to Sell, Purchase and Resell.
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(a) The Company hereby agrees, upon the basis of the representations,
warranties and agreements of the Initial Purchasers herein contained and
subject to all the terms and conditions set forth herein, to issue and sell to
the Initial Purchasers and, upon the basis of the representations, warranties
and agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each Initial Purchaser, severally and not jointly,
agrees to purchase from the Company that principal amount of Securities set
forth opposite the name of such Initial Purchaser on Schedule I attached hereto
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at a purchase price of 98.813% of the principal amount thereof.
(b) Each Initial Purchaser represents and warrants to the Company that
it is a Qualified Institutional Buyer with such knowledge and experience in
financial and business matters as are necessary to evaluate the merits and risks
of an investment in the Securities, and has advised the Company that it proposes
to offer the Securities for resale upon the terms and
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conditions set forth in this Agreement and in the Offering Memorandum in Exempt
Resales. Each Initial Purchaser hereby represents and warrants to, and agrees
with, the Company that it (i) will not solicit offers for, or offer to sell, the
Securities by means of any form of general solicitation or general advertising
or in any manner involving a public offering within the meaning of Section 4(2)
of the Act (including, but not limited to, (A) any advertisement, article,
notice or other communication published in any newspaper, magazine or similar
media or broadcast over television or radio, or (B) any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising;
provided, however, that such limitation shall not preclude the Initial
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Purchasers from placing any tombstone announcement with respect to the resale by
the Initial Purchasers of the Securities, provided that such announcement is not
prohibited by (and is in compliance with) Regulation S), and (ii) will solicit
offers for the Securities only from, and will offer, sell or deliver the
Securities as part of its initial offering, only to (A) persons in the United
States whom such Initial Purchaser reasonably believes to be Qualified
Institutional Buyers, 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 such Initial Purchaser 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, in each case, in
transactions under Rule 144A and (B) outside the United States to persons other
than U.S. persons in reliance on Regulation S. Each Initial Purchaser has
advised the Company that it will offer the Securities to Eligible Purchasers at
a price initially equal to 99.713% of the principal amount thereof.
(c) Each Initial Purchaser represents and warrants that (i) it has not
offered or sold, and will not offer or sell, directly or indirectly, any of the
Securities in the United Kingdom by means of any document, other than to persons
whose ordinary business it is to buy or sell shares or debentures whether as
principal or agent (except in circumstances which do not constitute an offer to
the public within the meaning of the Public Offers of Securities Regulations
1995 of Great Britain), (ii) it has complied with and will comply with all
applicable provisions of the Financial Services Xxx 0000 with respect to
anything done by such Initial Purchaser in relation to the Securities in, from
or otherwise involving the United Kingdom and (iii) it has only issued or passed
on and will only issue or pass on in or from the United Kingdom to any persons
any document received by such Initial Purchaser in
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connection with the issue of the Securities if the recipient is of a kind
described in Article 11(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996, as amended.
(d) Each Initial Purchaser represents and warrants that, with respect
to Securities offered and sold or to be offered and sold pursuant to Regulation
S, it has offered and sold such Securities and agrees that it will offer and
sell such Securities (i) as part of its initial distribution at any time and
(ii) otherwise until 40 days after the later of the commencement of the offering
of the Securities and the Closing Date, only in accordance with Rule 903 of
Regulation S. Accordingly, each Initial Purchaser represents, warrants and
agrees that, with respect to Securities offered and sold or to be offered and
sold pursuant to Regulation S, none of it, its affiliates or any persons acting
on its behalf or on behalf of its affiliates have engaged or will engage in any
directed selling efforts in the United States with respect to such Securities,
and it and its affiliates have complied and will comply with the offering
restrictions requirements of Regulation S. Each Initial Purchaser agrees that,
at or prior to confirmation of any sale of Securities pursuant to Regulation S,
it will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases such 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 U.S.
Securities Act of 1933, as amended (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 their initial distribution at any
time or (ii) otherwise until 40 days after the later of the commencement of
the offering and the Closing Date, except in either case in accordance with
Regulation S or Rule 144A under the Securities Act. Terms used above have
the respective meanings given to them in Regulation S under the Securities
Act.
Each Initial Purchaser understands that the Company and, for the
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 7(d) and 7(e) hereof, counsel to the Company and counsel to the Initial
Purchasers will rely upon the accuracy and truth of the foregoing
representations and agreements and each Initial Purchaser hereby consents to
such reliance.
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3. Delivery of the Securities and Payment Therefor. Delivery to the
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Initial Purchasers of and payment for the Securities shall be made at the office
of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 9:00 A.M., New
York City time, on July 17, 1998 (the "Closing Date"). The place of closing for
the Securities and the Closing Date may be varied by agreement between the
Initial Purchasers and the Company.
The Securities will be delivered to the Initial Purchasers against
payment of the purchase price therefor by wire transfer payable in same-day
funds, in accordance with written instructions from the Company. The Securities
will be evidenced by one or more global securities (each, a "Global Security"),
and will be registered, in the case of a Global Security, in the name of Cede &
Co. as nominee of The Depository Trust Company ("DTC"), and in the other cases,
in such names and in such denominations as the Initial Purchasers shall request
prior to 1:00 p.m., New York City time, on the business day preceding the
Closing Date. The Securities to be delivered to the Initial Purchasers shall be
made available to the Initial Purchasers in New York City for inspection and
packaging not later than 9:30 a.m., New York City time, on the business day next
preceding the Closing Date.
4. Agreements of the Company. The Company agrees with the Initial
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Purchasers as follows:
(a) Until the completion of the distribution of the Securities by the
Initial Purchasers to Eligible Purchasers, the Company will advise the
Initial Purchasers promptly and, if requested, will confirm such advice in
writing, of any material adverse change in the condition (financial or
other), business, prospects, properties, net worth or results of operations
of the Company and its Subsidiaries (as defined), taken as a whole, or of
the happening of any event or the existence of any condition which requires
any amendment or supplement to the Offering Memorandum (as then amended or
supplemented) so that the Offering Memorandum (x) will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or (y) will comply with applicable law.
(b) The Company will furnish to the Initial Purchasers, without
charge, such number of copies of the Offering
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Memorandum, as they may then be amended or supplemented, as they may
reasonably request.
(c) The Company will not make any amendment or supplement to the
Preliminary Offering Memorandum or to the Offering Memorandum of which the
Initial Purchasers shall not previously have been advised or to which they
shall object in writing after being so advised.
(d) Prior to the execution and delivery of this Agreement, the Company
has delivered or will deliver to the Initial Purchasers, without charge, in
such reasonable quantities as the Initial Purchasers shall have requested
or may hereafter request, copies of the Preliminary Offering Memorandum.
The Company consents to the use, in accordance with the securities or Blue
Sky laws of the jurisdictions in which the Securities are offered by the
Initial Purchasers and by dealers, prior to the date of the Offering
Memorandum, of each Preliminary Offering Memorandum so furnished by the
Company. The Company consents to the use of the Offering Memorandum (and
of any amendment or supplement thereto prepared in accordance with Section
4(c)) in accordance with the securities or Blue Sky laws of the
jurisdictions in which the Securities are offered by the Initial Purchasers
and by all dealers to whom Securities may be sold, in connection with the
offering and sale of the Securities.
(e) If, at any time prior to completion of the distribution of the
Securities by the Initial Purchasers to Eligible Purchasers, any event
shall occur or condition shall exist that in the judgment of the Company or
in the opinion of the Initial Purchasers based on advice of counsel
requires any amendment or supplement to the Offering Memorandum (as then
amended or supplemented) so that the Offering Memorandum (x) will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (y) will comply with applicable law, the Company will, in
each such case subject to Section 4(c), forthwith prepare an appropriate
supplement or amendment thereto, and will expeditiously furnish to the
Initial Purchasers that number of copies thereof as they shall reasonably
request.
(f) The Company will cooperate with the Initial Purchasers and with
their counsel in connection with the
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qualification of the Securities for offering and sale by the Initial
Purchasers and by dealers under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may designate and will file such
other documents necessary or appropriate in order to effect such
qualification; provided that in no event shall the Company be obligated to
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qualify to do business in any jurisdiction where it is not now so qualified
or to take any action which would subject it to general service of process
in any jurisdiction where it is not now so subject.
(g) So long as any of the Securities are outstanding, the Company will
furnish to the Initial Purchasers (i) as soon as available, a copy of each
report of the Company mailed to stockholders or filed with the Securities
and Exchange Commission (the "Commission") and (ii) from time to time such
other information concerning the Company as the Initial Purchasers may
reasonably request.
(h) The Company will apply the proceeds from the sale of the
Securities to be sold by it hereunder in accordance with the description
set forth under "Use of Proceeds" in the Offering Memorandum.
(i) The Company has not taken, nor will it 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
Securities to facilitate the sale or resale of the Securities. Except as
permitted by the Act, the Company will not distribute any offering material
in connection with the Exempt Resales. Except following the effectiveness
of the Exchange Offer Registration Statement or the Shelf Registration
Statement (each as defined in the Registration Rights Agreement), the
Company will not solicit any offers to buy and will not offer to sell the
Securities by means of any form of general solicitation or general
advertising (within the meaning of Regulation D under the Act) or by means
of any directed selling efforts (as defined under Regulation S and the
Commission's releases related thereto).
(j) The Company will assist the Initial Purchasers in causing the
Securities to be eligible for trading in DTC's Same-Day Funds Settlement
System.
(k) From and after the Closing Date, so long as any of the Securities
are outstanding and are "restricted
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securities" within the meaning of Rule 144(a)(3) under the Act or, if
earlier, until two years after the Closing Date, and during any period in
which the Company is not subject to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the Company will
furnish to holders of the Securities and prospective purchasers of
Securities 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 Act to permit compliance with Rule 144A in
connection with resales of the Securities.
(l) The Company agrees not to sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in
the Act) that would be integrated with the sale of the Securities in a
manner that would require the registration under the Act of the sale by the
Company to the Initial Purchasers or by the Initial Purchasers to the
Eligible Purchasers of the Securities.
(m) The Company agrees to comply with all of the terms and conditions
of the Registration Rights Agreement, and all agreements set forth in the
representation letters of the Company to DTC relating to the approval of
the Securities by DTC for "book entry" transfer.
(n) The Company agrees that not later than any registration of the
Securities pursuant to the Registration Rights Agreement, or at such
earlier time as may be so required, the Company shall use its best efforts
to cause the Indenture to be qualified under the Trust Indenture Act of
1939 (the "1939 Act") and will cause to be entered into any necessary
supplemental indentures in connection therewith.
(o) The Company shall not resell any Securities that have been
acquired by it.
(p) Prior to the Closing Date, the Company will furnish to the Initial
Purchasers, as soon as reasonably practicable after they have been
prepared, a copy of any unaudited interim consolidated financial statements
of the Company for any period subsequent to the period covered by the most
recent consolidated financial statements of the Company appearing in the
Offering Memorandum.
(q) The Company will not, until 180 days following the Closing Date,
without the prior written consent of
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Salomon Brothers Inc, offer, sell or contract to sell, or otherwise dispose
of, directly or indirectly or announce the offering of, any debt securities
issued or guaranteed by the Company (other than the Securities).
5. Representations and Warranties of the Company. The Company
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represents and warrants to the Initial Purchasers that:
(a) No order or decree preventing the use of the Preliminary Offering
Memorandum or the Offering Memorandum or any amendment or supplement
thereto, or any order asserting that the transactions contemplated by this
Agreement are subject to the registration requirements of the Act, has been
issued and no proceeding for any such purpose has been commenced or is
pending or, to the knowledge of the Company, is threatened.
(b) The Preliminary Offering Memorandum and the Offering Memorandum,
as of their respective dates, and the Offering Memorandum, as of the
Closing Date, did not or will not contain an 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, except that this representation and warranty does not apply to
statements in the Preliminary Offering Memorandum and Offering Memorandum
made in reliance upon and in conformity with information relating to the
Initial Purchasers furnished to the Company in writing by the Initial
Purchasers through Salomon Brothers Inc expressly for use therein.
(c) As of the Closing Date, the Indenture will have been duly and
validly authorized by the Company and, upon its execution and delivery by
the Company, and assuming due authorization, execution and delivery by the
Trustee, will be a valid and binding agreement of the Company, enforceable
in accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency or other similar laws affecting the enforcement
of creditors' rights generally and subject to the applicability of general
principles of equity; the Indenture conforms in all material respects to
the description thereof in the Offering Memorandum; and no qualification of
the Indenture under the 1939 Act is required in connection with the offer
and sale of the Securities contemplated hereby or in connection with the
Exempt Resales.
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(d) As of the Closing Date, the Securities will have been duly
authorized by the Company, and, when executed by the Company, and
authenticated by the Trustee in accordance with the Indenture and delivered
to the Initial Purchasers against payment therefor in accordance with the
terms hereof, will have been validly issued and delivered, and will
constitute valid and binding obligations of the Company, entitled to the
benefits of the Indenture and enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights generally
and subject to the applicability of general principles of equity; and the
Securities conform in all material respects to the description thereof in
the Offering Memorandum.
(e) Each direct and indirect subsidiary of the Company is set forth on
Schedule II attached hereto (each, a "Subsidiary"). All the outstanding
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shares of capital stock of the Company and each Subsidiary have been duly
authorized and validly issued, are fully paid and nonassessable and are
free of any preemptive or similar rights.
(f) Each of the Company and the Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation with full corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Offering Memorandum, and is duly registered and qualified
to conduct its business and is in good standing in each jurisdiction where
the nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify would not reasonably be expected to have a material adverse effect
on the condition (financial or other), business, prospects, properties net
worth or results of operations of the Company and the Subsidiaries, taken
as a whole (a "Material Adverse Effect").
(g) There are no legal or governmental proceedings pending against the
Company or any Subsidiary or, to the knowledge of the Company, threatened
against any of them or to which the Company or any Subsidiary or to which
any of the respective properties of the Company or any Subsidiary is
subject which are not disclosed in the Offering Memorandum and which, if
adversely decided, would cause a Material Adverse Effect or materially
adversely affect the issuance of the Securities or the consummation of any
of
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the transactions contemplated by this Agreement, the Indenture, the
Securities, the Registration Rights Agreement or the Amended Credit
Facility (as defined in the Offering Memorandum (collectively, the
"Transaction Documents")). There are no agreements, contracts, indentures,
leases or other instruments of the Company or any Subsidiary that are
material to the Company and the Subsidiaries, taken as a whole, which are
not described in the Offering Memorandum. Except as disclosed in the
Offering Memorandum, neither the Company nor any Subsidiary is involved in
any strike, job action or labor dispute with any group of its employees
which would reasonably be expected to have a Material Adverse Effect, and,
to the knowledge of the Company, no such action or dispute is threatened.
(h) None of the Company or any Subsidiary is (x) in violation of its
certificate or articles of incorporation or by laws or other organizational
documents, or of any law, ordinance, administrative or governmental rule or
regulation applicable to it or of any decree of any court or governmental
agency or body having jurisdiction over it, except where any such violation
or violations in the aggregate could not reasonably be expected to have a
Material Adverse Effect, or (y) in default in the performance of any
obligation, agreement or condition contained in any bond, debenture, note
or any other evidence of indebtedness or in any agreement, indenture, lease
or other instrument to which the Company or any Subsidiary is a party or by
which any of them or any of their respective properties may be bound,
except as disclosed in the Offering Memorandum or where any such default
or defaults in the aggregate would not reasonably be expected to have a
Material Adverse Effect.
(i) None of (x) the issuance, offer, sale or delivery of the
Securities, (y) the execution, delivery or performance of the Transaction
Documents by the Company or any Subsidiary to the extent a party thereto,
or (z) the consummation by the Company or any Subsidiary of the
transactions contemplated hereby or thereby (i) requires any consent,
approval, authorization or other order of, or registration or filing with
(each, a "Consent"), any court, regulatory body, administrative agency or
other governmental body, agency or official (except such Consents as may
have been obtained or may be required in connection with the registration
under the Act of the Securities in accordance with the Registration Rights
Agreement, the qualification of the Indenture under the 1939 Act and
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except for compliance with the securities or Blue Sky laws of various
jurisdictions or the failure to obtain which could not reasonably be
expected to have a Material Adverse Effect or materially adversely affect
the consummation of the transactions contemplated by the Transaction
Documents) or conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the certificate or articles of
incorporation or bylaws, or other organizational documents, of the Company
or any Subsidiary, except any such conflicts and breaches that in the
aggregate could not reasonably be expected to have a Material Adverse
Effect, or (ii) conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, any agreement, indenture, lease
or other instrument to which the Company or any Subsidiary is a party or by
which any of them or any of their respective properties may be bound,
except as disclosed in the Offering Memorandum or any such conflicts,
breaches or defaults that in the aggregate could not reasonably be expected
to have a Material Adverse Effect, or (iii) violates or will violate any
statute, law, regulation or judgment, injunction, order or decree
applicable to the Company or any Subsidiary or any of their respective
properties, except any such violations that in the aggregate could not
reasonably be expected to have a Material Adverse Effect, or (iv) will
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any Subsidiary pursuant to
the terms of any agreement or instrument to which any of them is a party or
by which any of them may be bound or to which any of their property or
assets is subject, other than as disclosed in the Offering Memorandum or
which could not in the aggregate be expected to have a Material Adverse
Effect.
(j) Ernst & Young, LLP, who has certified the financial statements of
the Company, included as part of the Offering Memorandum, are independent
public accountants under Rule 101 of the AICPA's Code of Professional
Conduct and its interpretations and rulings.
(k) The financial statements of the Company included in the Offering
Memorandum, together with the related notes thereto, present fairly in all
material respects the financial position, results of operations and cash
flows of the Company at the dates and for the periods to which they relate,
and have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis ("GAAP").
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(l) The Company has all the requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and the
Registration Rights Agreement; the execution and delivery of, and the
performance by the Company of its obligations under, this Agreement and the
Registration Rights Agreement have been duly and validly authorized by the
Company and each of this Agreement and, as of the Closing Date, the
Registration Rights Agreement will have been duly executed and delivered by
the Company and will constitute the valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except as the enforcement hereof and thereof may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of creditors'
rights generally and subject to the applicability of general principles of
equity, and except as rights to indemnity and contribution hereunder and
thereunder may be limited by Federal or state securities laws or principles
of public policy.
(m) The Company has all the requisite corporate power and authority to
execute, deliver and perform its obligations under the Amended Credit
Facility; the execution and delivery of, and performance by the Company of
its obligations under, the Amended Credit Facility has been duly and
validly authorized by the Company and, assuming due authorization,
execution, delivery and performance by the other parties thereto, the
Amended Credit Facility, when executed and delivered by the Company, will
constitute the valid and legally binding agreement of each of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the applicability of general principles of equity.
(n) Except as disclosed in the Offering Memorandum, subsequent to the
date as of which such information is given in the Offering Memorandum,
neither the Company nor any Subsidiary has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in
the ordinary course of business, that is material to the Company and the
Subsidiaries, taken as a whole, and there has not been any material change
in the capital stock, or material increase in the short-term or long-term
debt of the Company or any Subsidiary.
-15-
(o) Each of the Company and the Subsidiaries has good and marketable
title to all property (real and personal) described in the Offering
Memorandum as being owned by it, free and clear of all liens, claims,
security interests or other encumbrances, except such as are described in
the Offering Memorandum or could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect, and all the property described
in the Offering Memorandum as being held under lease by each of the Company
and the Subsidiaries is held by it under valid, subsisting and enforceable
leases, except as the enforcement thereof may be limited by bankruptcy,
insolvency, or similar laws affecting the enforcement of creditors' rights
generally and subject to the applicability of general principles of equity.
(p) Except as permitted by the Act, the Company has not distributed
and, prior to the later to occur of the Closing Date and completion of the
distribution of the Securities, will not distribute any offering material
in connection with the offering and sale of the Securities other than the
Preliminary Offering Memorandum and Offering Memorandum (and any amendment
or supplement thereto in accordance with Section 4(c) hereof).
(q) Each of the Company and the Subsidiaries has such permits,
licenses, franchises, certificates of need and other approvals or
authorizations of governmental or regulatory authorities ("Permits") as are
necessary under applicable law to own their respective properties and to
conduct their respective businesses in the manner described in the Offering
Memorandum, except to the extent that the failure to have such Permits
could not reasonably be expected to have a Material Adverse Effect; each of
the Company and the Subsidiaries has fulfilled and performed in all
material respects all its obligations with respect to the Permits, and, to
the knowledge of the Company, no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the holder of any
such Permit, subject in each case to such qualification as may be set forth
in the Offering Memorandum and except to the extent that any such
revocation or termination, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
-16-
(r) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions of the
Company and the Subsidiaries are executed in accordance with management's
general or specific authorization; (ii) transactions of the Company and the
Subsidiaries are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for
assets; (iii) access to assets of the Company and the Subsidiaries is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets of the
Company and the Subsidiaries is compared with existing assets of the
Company and the Subsidiaries at reasonable intervals and appropriate action
is taken with respect to any differences.
(s) Neither the Company nor any Subsidiary nor, to the knowledge of
the Company, any employee or agent of the Company or any Subsidiary has
made any payment of funds or received or retained any funds in violation of
any law, rule or regulation, which violation could reasonably be expected
to have a Material Adverse Effect.
(t) Except as disclosed in the Offering Memorandum, the Company and
the Subsidiaries have filed all tax returns required to be filed (other
than filings being contested in good faith), which returns are true and
correct in all material respects, and neither of the Company nor any
Subsidiary is in default in the payment of any taxes which were payable
pursuant to said returns or any assessments with respect thereto (other
than taxes being contested in good faith), except where the failure to file
such returns and make such payments (whether or not being contested in good
faith) would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(u) No holder of any security of the Company (other than holders of
the Securities) has any right to request or demand registration of any
security of the Company because of the consummation of the transactions
contemplated by the Transaction Documents.
(v) Each of the Company and the Subsidiaries owns, possesses or
possesses adequate rights to use all patents, trademarks, trademark
registrations, service marks, service xxxx registrations, trade names,
copyrights, licenses, inventions, trade secrets and rights described in the
-17-
Offering Memorandum as being owned by it or necessary for the conduct of
its business, and the Company has not received notice of any claim to the
contrary (a "Claim") or any challenge (a "Challenge") by any other person
to the rights of each of the Company and the Subsidiaries with respect to
the foregoing, except for such Claims and Challenges which could not
reasonably be expected to have a Material Adverse Effect.
(w) The Company is not and, upon sale of the Securities to be issued
and sold hereby in accordance herewith and the application of the net
proceeds to the Company of such sale as described in the Offering
Memorandum under the caption "Use of Proceeds," will not be an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(x) When the Securities are issued and delivered pursuant to this
Agreement, such Securities will not be of the same class (within the
meaning of Rule 144A(d)(3) under the Act) as any security of the Company
that is listed on a national securities exchange registered under Section 6
of the Exchange Act or that is quoted in a United States automated
interdealer quotation system.
(y) None of the Company nor any of its affiliates (as defined in Rule
501(b) of Regulation D under the Act) 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 Act) which is or will be integrated with the offering and
sale of the Securities in a manner that would require the registration of
the Securities under the Act or (ii) engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D
under the Act) in connection with the offering of the Securities.
(z) Assuming (i) the representations and warranties of the Initial
Purchasers in Section 2 hereof are true and correct in all material
respects, (ii) each Initial Purchaser complies with the covenants set forth
in Section 2 hereof (iii) compliance by each Initial Purchaser with the
offering and transfer procedures and restrictions described in the Offering
Memorandum, (iv) the accuracy of the representations and warranties deemed
to be made in the Offering Memorandum by purchasers to whom the Initial
-18-
Purchasers initially resell Securities and (v) purchasers to whom the
Initial Purchasers initially resell Securities receive a copy of the
Offering Memorandum prior to such sale, the purchase and sale of the
Securities pursuant hereto (including the Initial Purchasers' proposed
offering of the Securities on the terms and in the manner set forth in the
Offering Memorandum and Section 2 hereof) do not require registration under
the Act.
(aa) None of the Company or the Subsidiaries has any liability for any
prohibited transaction or funding deficiency or any complete or partial
withdrawal liability with respect to any pension, profit sharing or other
plan which is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), to which the Company or any of the Subsidiaries
-----
makes or ever has made a contribution and in which any employee of the
Company or of any Subsidiary is or has ever been a participant. With
respect to such plans, the Company and each Subsidiary is in compliance in
all material respects with all applicable provisions of ERISA.
(bb) Except as disclosed in the Company's filings with the Securities
and Exchange Commission, none of the properties owned, operated or used by
the Company has suffered a release of any Hazardous Materials that, under
any Environmental Law, (i) would impose liability on the Company that is
likely to have a Material Adverse Effect or (ii) is likely to result in the
imposition of a lien on any assets owned, directly or indirectly, by the
Company. To the Company's knowledge, it is in compliance with, and is not
subject to any existing, pending threatened investigation, proceeding,
claim or demand by any governmental agency or authority or other person
with respect or pursuant to any Environmental Law, except any which, if
adversely determined, would not have a Material Adverse Effect. As used
herein, "Environmental Laws" means the common law and all federal, state,
local and foreign laws, codes and ordinances relating to the environment,
health and safety and all rules and regulations promulgated thereunder,
including, without limitation laws relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes into the environment
(including, without limitation, air, surface water, ground water, land
surface or subsurface strata) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of
-19-
pollutants, contaminants, chemicals, or industrial, solid, toxic or
hazardous substances or wastes; and "Hazardous Material" includes, without
limitation, (i) all substances which are designated pursuant to Section
311(b)(2)(A) of the Federal Water Pollution Control Act ("FWPCA"), 33
U.S.C. (S) 1251 et. seq.; (ii) any element, compound, mixture, solution, or
-- ---
substance which is designated pursuant to Section 102 of the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), 42
U.S.C. (S) 9601 et. seq.; (iii) any hazardous waste having the
-- ---
characteristics which are identified under or listed pursuant to Section
3001 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. (S)
6901 et. seq.; (iv) any toxic pollutant listed under Section 307(a) of the
-- ---
FWPCA; (v) any hazardous air pollutant which is listed under Section 112 of
the Clean Air Act, 42 U.S.C. (S) 7401 et. seq.; (vi) any imminently
-- ---
hazardous chemical substance or mixture with respect to which action has
been taken pursuant to Section 7 of the Toxic Substances Control Act, 15
U.S.C. (S) 2601 et. seq.; and (vii) petroleum, petroleum products,
-- ---
petroleum by-products, petroleum decomposition by-products, and waste oil,
and any other substances or wastes subject to regulation under
Environmental Laws.
(cc) In the ordinary course of its business, the Company and its
Subsidiaries periodically reviews the effect of Environmental Laws on the
business, operations and properties of it and its subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or
in the aggregate, have a Material Adverse Effect.
(dd) None of the Company, the Subsidiaries or any agent acting on
their behalf has taken or will take any action that might cause this
Agreement or the sale of the Securities to violate Regulation T, U or X of
the Board of Governors of the Federal Reserve System, in each case as in
effect, or as the same may hereafter be in effect, on the Closing Date.
-20-
(ee) The Company has the authorized equity capitalization set forth in
the Offering Memorandum.
6. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each 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 from and
against any and all losses, claims, damages, liabilities and out-of-pocket
expenses (including reasonable costs of investigation) incurred by any such
persons arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Offering Memorandum or
Offering Memorandum or in any amendment or supplement thereto, or arising out of
or based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with the information relating to an Initial
Purchaser furnished in writing to the Company by an Initial Purchaser, through
Salomon Brothers Inc, expressly for use in connection therewith; provided,
--------
however, that the indemnification contained in this paragraph (a) with respect
-------
to the Preliminary Offering Memorandum shall not inure to the benefit of an
Initial Purchaser on account of any such loss, claim, damage, liability or
expense arising from the sale of the Securities by such Initial Purchaser to any
person if the untrue statement or alleged untrue statement or omission or
alleged omission of a material fact contained in the Preliminary Offering
Memorandum was corrected in the Offering Memorandum and such Initial Purchaser
sold Securities to that person without sending or giving, at or prior to the
written confirmation of such sale, a copy of the Offering Memorandum (as then
amended or supplemented). The foregoing indemnity agreement shall be in
addition to any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against an
Initial Purchaser or any person who controls an Initial Purchaser in respect of
which indemnity may be sought against the Company in accordance with this
Section 6, such Initial Purchaser or any such person who controls such Initial
Purchaser shall promptly notify in writing the Company, and the Company shall
assume the defense thereof, including
-21-
the employment of counsel reasonably acceptable to such Initial Purchaser or
such person who controls such Initial Purchaser and payment of all fees and
expenses relating to the assumption of the defense by the Company. An Initial
Purchaser or any person who controls an Initial Purchaser shall have the right
to employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Initial Purchaser or any such person who
controls an Initial Purchaser unless (i) the Company has agreed in writing to
pay such fees and expenses, (ii) the Company has failed to assume the defense
and employ counsel on a timely basis or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both such
Initial Purchaser or any such person who controls an Initial Purchaser and the
Company and such Initial Purchaser or any such person who controls an Initial
Purchaser shall have been advised by its counsel that representation of such
indemnified party and the Company by the same counsel would be inappropriate
under applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or potential
differing interests between them (in which case the Company shall not have the
right to assume the defense of such action, suit or proceeding (a "Conflicted
Action") on behalf of such Initial Purchaser or any such person who controls an
Initial Purchaser). It is understood, however, that the Company shall, in
connection with any such Conflicted Action, be liable for the reasonable fees
and expenses of a single counsel (in addition to any local counsel) for the
Initial Purchasers and each such person who controls an Initial Purchaser, which
firm shall be designated in writing by Salomon Brothers Inc, and that all such
reasonable fees and expenses shall be reimbursed as incurred as provided in
paragraph (a) hereof. The Company shall not be liable for any settlement of any
such action, suit or proceeding effected without the written consent of the
Company, but if settled with such written consent, or if there be a final
judgment for the plaintiff in any such action, suit or proceeding, the Company
agrees to indemnify and hold harmless the Initial Purchasers, to the extent
provided in paragraph (a), and any person who controls an Initial Purchaser from
and against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
(c) Each Initial Purchaser, severally and not jointly, agrees to
indemnify and hold harmless the Company, its directors and officers and any
person who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act to the same extent as the indemnity from the
-22-
Company to the Initial Purchasers set forth in paragraph (a) hereof, but only
with respect to information relating to such Initial Purchaser furnished in
writing by such Initial Purchaser expressly for use in the Preliminary Offering
Memorandum or Offering Memorandum or any amendment or supplement thereto. If
any action, suit or proceeding shall be brought against the Company, any of its
directors or officers or any such controlling person based on the Preliminary
Offering Memorandum or Offering Memorandum, or any amendment or supplement
thereto, and in respect of which indemnity may be sought against an Initial
Purchaser pursuant to this paragraph (c), such Initial Purchaser shall have the
rights and duties given to the Company by paragraph (b) above (except that if
the Company shall have assumed the defense thereof, such Initial Purchaser shall
not be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at such Initial Purchaser's expense), and the Company, its directors
and officers and any such controlling person shall have the rights and duties
given to the Initial Purchasers by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which an Initial Purchaser may
otherwise have.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and an Initial Purchaser on the other hand from the
offering of the Securities 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 an Initial Purchaser
on the other in connection with the statements or omissions that resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and an Initial Purchaser on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total discounts and
commissions received by such Initial Purchaser. The relative fault of the
Company on the one hand and an Initial Purchaser on the other hand shall
-23-
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or by such Initial Purchaser on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 6 were determined by
a pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other out-of-pocket expenses reasonably incurred by such indemnified
party in connection with investigating any claim or defending any such action,
suit or proceeding. Notwithstanding the provisions of this Section 6, no
Initial Purchaser shall be required to contribute any amount in excess of the
amount by which the total price of the Securities purchased by it exceeds the
amount of any damages which such Initial Purchaser has otherwise been required
to pay by reason of such 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 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 6 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 6 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of an Initial Purchaser or any person who
controls an Initial Purchaser, the Company, their respective directors or
officers or any person controlling the Company, (ii) acceptance of any
Securities and payment therefor hereunder and (iii) any termination of this
Agreement. A successor to an Initial Purchaser or any person who controls an
Initial Purchaser, or to the Company, their respective directors or officers or
any person controlling the Company, shall be entitled to the benefits
-24-
of the indemnity, contribution and reimbursement agreements contained in this
Section 6.
(g) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
7. Conditions of the Initial Purchasers' Obligations. The
-------------------------------------------------
obligations of each Initial Purchaser to purchase and pay for the Securities to
be purchased by it on the Closing Date hereunder are subject to the fulfillment,
in such Initial Purchaser's sole discretion, of the following conditions:
(a) At the time of execution of this Agreement and on the Closing
Date, no order or decree preventing the use of the Offering Memorandum or
any amendment or supplement thereto, or any order asserting that the
transactions contemplated by this Agreement are subject to the registration
requirements of the Act shall have been issued and no proceedings for those
purposes shall have been commenced or shall be pending or, to the knowledge
of the Company, threatened. No order suspending the sale of the Securities
in any jurisdiction shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending or, to the knowledge
of the Company, threatened.
(b) On the Closing Date, the Company shall have delivered to the
Initial Purchasers a true, correct and complete copy of the Amended Credit
Facility; on and as of the Closing Date (after giving effect to the
consummation of the transactions contemplated by this Agreement), there
shall not exist any condition which would constitute a Default or an Event
of Default (as defined in the Amended Credit Facility).
(c) Subsequent to the date hereof, (i) except as disclosed or
contemplated in the Offering Memorandum, there shall not have occurred any
material adverse change in the condition (financial or other), business,
prospects, properties, assets, net worth or results of operations of the
Company and the Subsidiaries, taken as a
-25-
whole, which, in the opinion of the Initial Purchasers, would materially
adversely affect the market for the Securities, or (ii) the Offering
Memorandum shall not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, if amending or supplementing
the Offering Memorandum to correct any such misstatement or omission could,
in the sole judgment of the Initial Purchasers, materially adversely affect
the marketability of the Securities.
(d) The Initial Purchasers shall have received on the Closing Date an
opinion of Stroock & Stroock & Xxxxx LLP, counsel for the Company, and
Xxxxx Xxxxxxxx, Corporate Counsel for the Company, each dated the Closing
Date and addressed to the Initial Purchasers, in the forms of Exhibits B
and C hereto.
(e) The Initial Purchasers shall have received on the Closing Date an
opinion of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers,
dated the Closing Date, and addressed to the Initial Purchasers, with
respect to such matters as the Initial Purchasers may request.
(f) The Initial Purchasers shall have received "cold comfort" letters
addressed to the Initial Purchasers, and dated the date hereof and the
Closing Date, from Ernst & Young, substantially in the forms heretofore
approved by the Initial Purchasers.
(g) (i) There shall not have been any change in the capital stock of
the Company or any Subsidiary nor any material increase in the short-term
or long-term debt of the Company or any Subsidiary from that set forth or
contemplated in the Offering Memorandum; (ii) except as disclosed or
contemplated by the Offering Memorandum, the Company and the Subsidiaries
shall not have any liabilities or obligations, direct or contingent
(whether or not in the ordinary course of business), that are material to
the Company and the Subsidiaries, taken as a whole; (iii) all the
representations and warranties of the Company 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; and (iv) the Initial Purchasers shall have received a
certificate, dated the Closing Date and signed
-26-
by the chief executive officer or president and the chief financial or
accounting officer of the Company, to the effect set forth in this Section
7(g) and in Section 7(h) hereof.
(h) The Company shall not have failed at or prior to the Closing Date
to have performed or complied with any of its respective agreements herein
contained and required to be performed or complied with by them hereunder
at or prior to the Closing Date.
(i) There shall not have been any announcement by any "nationally
recognized statistical rating organization," as defined for purposes of
Rule 436(g) under the Act, that (i) it is downgrading its rating assigned
to any class of securities of the Company (including the Securities), or
(ii) it is reviewing its ratings assigned to any class of securities of the
Company (including the Securities) with a view to possible downgrading,
with negative implications or direction not determined.
(j) The Securities shall have been approved for trading in DTC's Same-
Day Funds Settlement System.
(k) The Company shall have consummated the Tender Offer and Consent
Solicitation (as described in the Offering Memorandum).
(l) The Company shall have furnished or caused to be furnished to the
Initial Purchasers such further certificates and customary closing
documents as the Initial Purchasers shall have reasonably requested.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Initial Purchasers.
Any certificate or document signed by any officer of the Company and
delivered to the Initial Purchasers, or to counsel for the Initial Purchasers,
shall be deemed a representation and warranty by the Company to the Initial
Purchasers as to the statements made therein.
8. Expenses.
--------
(a) Whether or not the purchase and sale of the Securities hereunder
is consummated or this Agreement is
-27-
terminated pursuant to Section 9 hereof, the Company agrees to pay the following
costs and expenses and all other costs and expenses incident to the performance
by it of its obligations hereunder: (i) the printing or reproduction of the
Preliminary Offering Memorandum and the Offering Memorandum (including financial
statements thereto), and each amendment or supplement to any of them; (ii) the
delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the Offering Memorandum, the Preliminary Offering
Memorandum and all amendments or supplements thereto as may be reasonably
requested for use in connection with the offering and sale of the Securities;
(iii) the printing, authentication, issuance and delivery of certificates for
the Securities, including any stamp taxes in connection with the original
issuance and sale of the Securities; (iv) the printing (or reproduction) and
delivery of the preliminary and supplemental Blue Sky Memoranda and all other
agreements and documents printed (or reproduced) and delivered in connection
with the offering of the Securities; (v) the application for quotation of the
Securities in DTC's Same-Day Funds Settlement System; (vi) the qualification of
the Securities for offer and sale under the securities or Blue Sky laws of the
several states as provided in Section 4(f) hereof (including the reasonable
fees, expenses and disbursements of counsel for the Initial Purchasers relating
to the preparation, printing or reproduction, and delivery of the preliminary
and supplemental Blue Sky Memoranda and such qualification); and (vii) the fees
and expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company.
(b) If the purchase and sale of the Securities hereunder 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 pursuant to Section 9(a) hereof or because of any failure, refusal or
inability on the part of the Company to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder other than by
reason of a default by any Initial Purchasers in payment for the Securities on
the Closing Date, the Company shall reimburse the Initial Purchasers promptly
upon demand for all reasonable out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by it in connection
with the proposed purchase and sale of the Securities and the other transactions
contemplated hereby.
9. Termination of Agreement. (a) This Agreement shall be subject to
------------------------
termination in the absolute discretion of
-28-
the Initial Purchasers, without liability on the part of the Initial Purchasers
to the Company, by notice to the Company, if prior to the Closing Date, (i)
trading in securities generally on the New York Stock Exchange, American Stock
Exchange or the Nasdaq National Market shall have been suspended or materially
limited, (ii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York state authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities or
other international or domestic calamity, crisis or change in political,
financial or economic conditions, the effect of which on the financial markets
of the United States or the market for the Securities is such as to make it, in
the sole judgment of the Initial Purchasers, impracticable or inadvisable to
commence or continue the offering of the Securities on the terms set forth on
the cover page of the Offering Memorandum or to enforce contracts for the resale
of the Securities by the Initial Purchasers. Notice of such termination may be
given to the Company by telegram, telecopy or telephone and shall be
subsequently confirmed by letter.
(b) If any Initial Purchaser shall fail to purchase and pay for any
of the Securities agreed to be purchased by such Initial Purchaser hereunder and
such failure to purchase shall constitute a default in the performance of its
obligations under this Agreement, the remaining Initial Purchaser shall be
obligated to take up and pay for the Securities which the defaulting Initial
Purchaser agreed but failed to purchase; provided, however, that in the event
-------- -------
that the aggregate principal amount of Securities which the defaulting Initial
Purchaser agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Securities set forth in Schedule I hereto, the remaining
Initial Purchasers shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the Securities, and if such non-defaulting
Initial Purchasers do not purchase all the Securities, this Agreement will
terminate without liability to the non-defaulting Initial Purchaser or the
Company. In the event of a default by any Initial Purchaser as set forth in
this Section 9(b), the Closing Date shall be postponed for such period, not
exceeding seven days, as the non-defaulting Initial Purchasers shall determine
in order that the required changes in the Offering Memorandum or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Initial Purchaser of its liability, if any, to the
Company or the non-defaulting Initial Purchaser for damages occasioned by its
default hereunder.
-29-
10. Information Furnished by the Initial Purchasers. The statements
-----------------------------------------------
set forth in the stabilization legend on page i, the last paragraph on the cover
page and in the fourth paragraph (to the extent it relates to the Initial
Purchasers) under the caption "Plan of Distribution" in the Preliminary Offering
Memorandum and Offering Memorandum, constitute the only information furnished by
the Initial Purchaser as such information is referred to in Sections 5(b) and 6
hereof.
11. Miscellaneous. Except as otherwise provided herein, notice given
-------------
pursuant to any provision of this Agreement shall be in writing and shall be
delivered (i) if to the Company at AMETEK, Inc., Xxxxxxx Xxxxxx, Xxxxx, XX 00000
attention Xxxx X. Xxxxxxxxx, or (ii) if to the Initial Purchasers, to Salomon
Brothers Inc, Seven Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Manager,
Investment Banking Division.
This Agreement has been and is made solely for the benefit of the
Initial Purchasers, the Company, and their respective directors, officers and
the controlling persons referred to in Section 6 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the
term "successor" nor the terms "successors and assigns" as used in this
Agreement shall include a purchaser from an Initial Purchaser of any of the
Securities in its status as such purchaser.
12. Applicable Law; Counterparts. This Agreement 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 within the State of New York.
-30-
This Agreement may be signed in various counterparts which together
constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the Initial Purchasers.
Very truly yours,
AMETEK, INC.
By:
---------------------------
Name:
Title:
-31-
Confirmed as of the date first above mentioned.
XXXXXXX XXXXX XXXXXX
XXXXXXX BROTHERS INC
By: SALOMON BROTHERS INC
By:
---------------------------
Name:
Title:
BANCAMERICA XXXXXXXXX XXXXXXXX
By:
---------------------------
Name:
Title:
BT ALEX. XXXXX INCORPORATED
By:
---------------------------
Name:
Title:
SCHEDULE I
----------
Principal Amount
of Notes
Initial Purchasers to be Purchased
------------------ ---------------
Salomon Brothers Inc............................................ $157,500,000
BancAmerica Xxxxxxxxx Xxxxxxxx.................................. 45,000,000
BT Alex. Xxxxx Incorporated..................................... 22,500,000
------------
Total $225,000,000
SCHEDULE II
-----------
SUBSIDIARIES
------------
JURISDICTION OF
OWNED BY AND INCORPORATION/
NAME PERCENTAGE OWNED ORGANIZATION
------ ---------------- ---------------
-2-
EXHIBIT A TO
PURCHASE AGREEMENT
[Form of Registration Rights Agreement]
EXHIBIT B TO
PURCHASE AGREEMENT
Form of Opinion of
Stroock Stroock & Xxxxx LLP
1. The Company has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Indenture; the execution
and delivery of, and the performance by the Company of its obligations under the
Indenture have been duly and validly authorized by the Company; and the
Indenture has been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, constitutes the valid and
legally binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally and subject to the applicability of general
principles of equity.
2 No qualification of the Indenture under the 1939 Act is required in
connection with the offer and sale of the Securities as contemplated by the
Purchase Agreement.
3 The Securities have been duly authorized by the Company and, when
authenticated by the Trustee in accordance with the Indenture and delivered to
the Initial Purchasers against payment therefor in accordance with the terms of
the Purchase Agreement, will have been validly issued and delivered, and will
constitute valid and binding obligations of the Company entitled to the benefits
of the Indenture and enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other similar
laws affecting the enforcement of creditors' rights generally and subject to the
applicability of general principles of equity.
4. All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable, and
to our knowledge, are free of any preemptive or similar rights. To our
knowledge, all of the outstanding interests in the subsidiaries have been
validly issued, are fully paid and nonassessable and, except as otherwise set
forth in the Offering Memorandum, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company
-2-
either directly or through wholly owned subsidiaries free and clear of any
security interest and, to the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or encumbrances; the Company has the
authorized equity capitalization set forth in the Offering Memorandum.
5. Each of the Company and its subsidiaries is validly existing and
in good standing under the laws of its jurisdiction of incorporation or
organization with requisite power and authority to own, lease and operate its
properties and to conduct its business as described in the Offering Memorandum,
and is duly registered and qualified to conduct its business and is in good
standing in each jurisdiction where the nature of its properties or the conduct
of its business requires such registration or qualification, except where the
failure so to register or qualify could not reasonably be expected to have a
Material Adverse Effect.
6. To our knowledge, (i) none of the Company or the Subsidiaries is
in violation of its certificates or articles of incorporation or by-laws or
other organizational documents, or of any law, ordinance, administrative or
governmental rule or regulation known to us to be applicable to it or of any
decree of any court or governmental agency or body known to us as having
jurisdiction over the Company or any Subsidiary, except where any such violation
or violations in the aggregate could not reasonably be expected to have a
Material Adverse Effect and (ii) none of the Company or any Subsidiary is in
default in the performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of indebtedness or in any
material agreement, indenture, lease or other instrument known to us to which
the Company or any Subsidiary is a party or by which any of them or any of their
respective properties may be bound, except as disclosed in the Offering
Memorandum or where any such default or defaults in the aggregate could not
reasonably be expected to have a Material Adverse Effect.
7. To our knowledge none of, (x) the issuance, offer, sale or
delivery of the Securities, (y) the execution, delivery or performance of the
Transaction Documents by the Company or any Subsidiary, to the extent a party
thereto, or (z) the consummation by the Company or any Subsidiary of any of the
transactions contemplated by the Transaction Documents, (i) requires any
consent, approval, authorization or other order of, or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official (except such as may have been obtained or may be
-3-
required in connection with the registration under the Act of the Securities in
accordance with the Registration Rights Agreement, the qualification of the
Indenture under the 1939 Act and except for compliance with the securities or
Blue Sky laws of various jurisdictions), (ii) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the certificate
or articles of incorporation or by-laws, or other organizational documents, of
the Company or any Subsidiary, except any such conflicts, breaches and defaults
that in the aggregate could not reasonably be expected to have a Material
Adverse Effect, (iii) conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, any material agreement, indenture,
lease or other instrument known to us to which the Company or any Subsidiary is
a party or by which any of them or any of their respective properties may be
bound, except as disclosed in the Offering Memorandum or any such conflicts,
breaches and defaults that in the aggregate could not reasonably be expected to
have a Material Adverse Effect, (iv) violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or decree known to us to be
applicable to the Company or any Subsidiary or any of their respective
properties, except any such violations that in the aggregate could not
reasonably be expected to have a Material Adverse Effect, or (v) will result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any Subsidiary pursuant to the terms of any
agreement or instrument to which any of them is a party or by which any of them
may be bound or to which any of their property or assets is subject, other than
as disclosed in the Offering Memorandum.
8. The Company has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Purchase Agreement and
the Registration Rights Agreement; the execution and delivery of, and the
performance by the Company of its obligations under, the Purchase Agreement and
the Registration Rights Agreement have been duly and validly authorized by the
Company, and each of the Purchase Agreement and the Registration Rights
Agreement has been duly executed and delivered by the Company. The Registration
Rights Agreement constitutes the valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the applicability of general principles of equity, and except as
rights to indemnity and contribution thereunder may be limited
-4-
by Federal or state securities laws or principles of public policy.
9. Assuming (i) the representations and warranties of the Company in
Section 5 of the Purchase Agreement are true and correct, (ii) the
representations and warranties of the Initial Purchasers in Section 2 of the
Purchase Agreement are true and correct, (iii) the Company complies with the
covenants set forth in Section 4 of the Purchase Agreement, (iv) the Initial
Purchasers comply with the covenants set forth in Section 2 of the Purchase
Agreement, (v) the Initial Purchasers comply with the offering and transfer
procedures and restrictions described in the Offering Memorandum, (vi) the
representations and warranties deemed to be made in the Offering Memorandum by
purchasers to whom the Initial Purchasers initially resell Securities are true
and correct and (vii) purchasers to whom the Initial Purchasers initially resell
Securities receive a copy of the Offering Memorandum prior to such sale, the
purchase and sale of the Securities pursuant to the Purchase Agreement
(including the Initial Purchasers' offering and sale of the Securities on the
terms and in the manner set forth in the Offering Memorandum and Section 2 of
the Purchase Agreement) do not require registration under the Act.
10. The Indenture, the Securities, the Registration Rights Agreement
and the Amended Credit Facility conform in all material respects to the
descriptions thereof contained in the Offering Memorandum.
11. To our knowledge, there are no legal governmental proceedings
involving or affecting the Company 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 described in the Offering 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 described in the
Offering Memorandum.
12. The Company is not, nor immediately after the sale of the
Securities to be sold under the Purchase Agreement and the application of the
proceeds from such sale (as described in the Offering Memorandum under the
caption "Use of Proceeds") will it be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
13. Neither the consummation of the transactions contemplated by the
Purchase Agreement nor the sale, issuance, execution or delivery of the
Securities will violate
-5-
Regulation T, U or X of the Board of Governors of the Federal Reserve system.
We have participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company, representatives of the Initial Purchasers and
counsel for the Initial Purchasers at which conferences the contents of the
Offering Memorandum and related matters were discussed, and, although we have
not independently verified and are not passing upon and assume no responsibility
for the accuracy, completeness or fairness of the statements contained in the
Offering Memorandum (except to the extent specified in paragraph 10), and that
our judgment as to materiality is, to the extent we deem proper, based in part
upon the views of appropriate officers and other representatives of the Company,
nothing has come to our attention that leads us to believe that the Offering
Memorandum, as of its date or as of the date hereof, contained or contains an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading (it being
understood that we express no opinion with respect to the financial statements
and related notes thereto and the other financial, statistical and accounting
data included in the Offering Memorandum).
EXHIBIT C TO
PURCHASE AGREEMENT
[Form of Opinion of Corporate Counsel]
1. Each of the Company and the Subsidiaries owns, possesses or
possesses adequate rights to use all patents, trademarks, trademark
registrations, service marks, service xxxx registrations, trade names,
copyrights, licenses, inventions, trade secrets and rights described in the
Offering Memorandum as being owned by it or necessary for the conduct of its
business, and the Company has not received notice of any claim to the contrary
(a "Claim") or any challenge (a "Challenge") by any other person to the rights
of each of the Company and the Subsidiaries with respect to the foregoing,
except for such Claims and Challenges which could not reasonably be expected to
have a Material Adverse Effect.
2. Except as would not, individually or in the aggregate, have a
Material Adverse Effect (A) each of the Company and the Subsidiaries is in
compliance with and not subject to liability under applicable Environmental Laws
(as defined below), (B) each of the Company and the Subsidiaries has made all
filings and provided all notices required under any applicable Environmental
Law, and has and is in compliance with all Permits required under any applicable
Environmental Laws and each of them is in full force and effect, (C) there is no
civil, criminal or administrative action, suit, demand, claim, hearing, notice
of violation, investigation, proceeding, notice or demand letter or request for
information pending or, to the knowledge of the Company or any of the
Subsidiaries, threatened against the Company or any of the Subsidiaries under
any Environmental Law, (D) no lien, charge, encumbrance or restriction has been
recorded under any Environmental Law with respect to any assets, facility or
property owned, operated, leased or controlled by the Company or any of the
Subsidiaries, (E) none of the Company or the Subsidiaries has received notice
that it has been identified as a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA") or any comparable state law, (F) no property or facility of
------
the Company or any of the Subsidiaries is (i) listed or proposed for listing on
the National Priorities List under CERCLA or is (ii) listed in the Comprehensive
Environmental Response, Compensation, Liability Information System List
promulgated pursuant to CERCLA, or on
-2-
any comparable list maintained by any state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means the common
law and all applicable federal, state and local laws or regulations, codes,
orders, decrees, judgments or injunctions issued, promulgated, approved or
entered thereunder, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials into the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata), (ii) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of hazardous materials, and (iii) underground
and above ground storage tanks and related piping, and emissions, discharges,
releases or threatened releases therefrom.
