EXHIBIT 10.15
SECURITIES PURCHASE AGREEMENT
AGREEMENT dated as of July 22, 1991 among K&F Industries, Inc. ("K&F")
(successor to Opus Acquisition Corporation), a Delaware corporation (together
with its successors, the "Issuer"), Xxxxxxx X. Xxxxxxxx ("BLS"), Shearson Xxxxxx
Xxxxxx Capital Partners II, L.P., Shearson Xxxxxx Xxxxxx Merchant Banking
Portfolio Partnership L.P., Shearson Xxxxxx Xxxxxx Offshore Investment
Partnership L.P., Shearson Xxxxxx Xxxxxx Offshore Investment Partnership - Japan
L.P., and MH capital Partners, Inc. ("MHC")(each, other than the Issuer, a
"Purchaser").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1. Definitions. Unless otherwise defined herein, capitalized
terms shall have the same meaning and carry the same definitions as provided in
the Securities Purchase Agreement dated as of April 27, 1989 among the Issuer,
BLS and Shearson Xxxxxx Brothers Holdings Inc. (the "Purchase Agreement").
ARTICLE II
PURCHASE AND SALE OF SECURITIES
SECTION 2.1. Commitments to Purchase. Subject to the terms and
conditions herein, the Issuer agrees to issue and sell to each Purchaser and
each Purchaser agrees, severally but not jointly, to purchase from the Issuer
the shares of Voting Common Stock ("Common Shares") and shares of Series A
Convertible Preferred Stock, par value $.01 per share ("Series A Preferred
Shares" and, together with the Common Shares, the "Shares") of the Issuer in
such amounts as are set forth opposite such Purchaser's name on the signature
pages hereof.
SECTION 2.2. The Closing. (a) The purchases and sale of the Shares will
take place at a closing at the offices of K&F at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx on July 22, 1991 or such other date and location as the Issuer and the
Purchasers shall agree.
(b) At the closing:
(i) each Purchaser shall deliver in immediately available
funds an amount equal to the aggregate purchase price of the Common
Shares and Preferred Shares being purchased by such Purchaser from the
Issuer at the Closing; and
(ii) the Issuer shall deliver to each Purchaser, against
payment of the purchase price therefor, certificates for the Common
Shares and Preferred Shares being purchased by such Purchaser at such
closing in definitive form and registered in such names and in such
denominations (including fractional shares) as such Purchaser shall
request not later than one Business Day prior to the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Issuer hereby represents and warrants to each Purchaser as follows:
SECTION 3.1. Disclosure. There is no fact known to the Issuer which has
not been disclosed to the Company's board of directors at meetings of the board
of directors (other than facts related to general economic conditions of the
economy as a whole) which has resulted in a material adverse effect, or, insofar
as the Issuer can reasonably foresee, is likely to have a material adverse
effect on the properties, business, prospects, operations, earnings, assets,
liabilities or condition (financial or otherwise) of the Issuer and its
subsidiaries taken as a whole (a "Material Adverse Effect").
SECTION 3.2. Financial Statements. The audited consolidated balance
sheet of the Issuer as of March 31, 1991 and the related consolidated statements
of income, shareholder's equity and cash flow for the year ended March 31, 1991
fairly present, in conformity with generally accepted accounting principles
applied on a consistent basis (except as may be indicated in the notes thereto),
the consolidated financial position of the Issuer and its consolidated
subsidiaries as of the date thereof and their consolidated results of
operations, shareholders' equity and cash flows for the period then ended.
SECTION 3.3. Organization and Status. (a) The Issuer is a corporation
duly organized, validly existing and in good standing under Delaware law and is
duly qualified to transact business in each jurisdiction in which the character
of its business makes such qualification necessary, except where such failure to
qualify would not have a Material Adverse Effect and the Issuer has all
requisite corporate power and authority and all material governmental licenses,
authorizations, consents and approvals required to own, lease and operate its
property and assets and to transact the business in which it is engaged.
SECTION 3.4. Authorization. (a) The Issuer has the requisite corporate
power to execute, deliver and perform the terms and provisions of this Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it thereof. This Agreement constitutes a valid and binding
agreement of the Issuer.
(b) The Shares have been duly authorized and, when issued and delivered
in accordance with the terms of this Agreement, will have been validly issued
and will be fully paid and nonassessable, and free and clear of any Lien or
other right or claim, except to the extent set forth in the Stockholders
Agreement, and each Purchaser will acquire good and valid title to the Shares to
be purchased by it free of any Lien and free of any other limitation or
restriction (including any restriction on the right to vote, sell or otherwise
dispose of such Shares), except as provided in the Stockholders Agreement and
the Issuer's certificate of incorporation. The issuance of the Shares is not
subject to any preemptive or similar rights which have not been satisfied or
waived and holders of the Shares will not be entitled to any preemptive or
similar rights, except as set forth in the Issuer's certificate of
incorporation.
SECTION 3.5. No Violation; Consents. The execution, delivery and
performance by the Issuer of this Agreement will not (i) contravene any
applicable provision of any law, statute, rule, regulation, order, writ,
injunction or decree of any court or governmental instrumentality by which the
Issuer is bound, (ii) conflict with or constitute a default under, or give rise
to any right of termination or acceleration under any indenture, loan agreement,
contract, lease or other agreement to which the Issuer is a party or by which it
or any of its property or assets is bound or to which it may be subject, or
(iii) violate any provision of the certificate of incorporation or by-laws of
the Issuer. No consent,
authorization or order of, or filing or registration with, any court or
governmental department, agency or authority is required for the execution,
delivery and performance of this Agreement by the Issuer.
SECTION 3.6. Litigation. Except as set forth in Schedule A hereto,
there is no pending or, to the knowledge of the Issuer, threatened action, suit
or proceeding before any court, governmental or regulatory authority, agency,
commission or board of arbitration against the issuer or which relates to or
challenges the legality, validity or enforceability of this Agreement, or which,
if an adverse determination were made, could have a Material Adverse Effect.
SECTION 3.7. Offer of Sale of Securities. Neither the Issuer nor anyone
acting on its behalf has offered or sold or will offer or sell any securities or
has taken any other action that would subject the issuance and sale of the
Shares to the registration provisions of the Securities Act.
ARTICLE IV
CONDITIONS TO PURCHASERS' OBLIGATIONS
The obligation of each Purchaser to purchase the Shares to be purchased
by it hereunder is subject to the satisfaction of the following condition: the
Purchasers shall have received the opinion of Xxxxxxx X. Xxxxxxx, Esq., dated
the Closing Date, to the effect specified in Sections 3.3, 3.4, 3.5 and 3.7.
ARTICLE V
INDEMNIFICATION
SECTION 5.1 Indemnification. The Issuer agrees to indemnify and hold
harmless the Purchasers and their respective Affiliates, the respective
directors, officers, agents and employees of the Purchasers and their
Affiliates, and each other person controlling the Purchasers, any agent of the
Purchasers or any of their respective Affiliates within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act and any
partner of any of them from and against any losses, claims, damages, liabilities
or expenses (including counsel fees and disbursements) arising out of any
misrepresentation or breach of any warranty or covenant made or to be performed
by the Issuer pursuant to this Agreement.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Applicability of the Purchase Agreement. The parties hereto
acknowledge and agree that the Shares purchased hereunder shall be subject to
all the terms, conditions and provisions of Article VII and Article X of the
Purchase Agreement and to the provisions of the Stockholders' Agreement.
SECURITIES PURCHASE AGREEMENT
Section 3.6 - Litigation Letters
Schedule A
Xxxxxxx X. Xxxxxxx June 26, 1991
Shereff, Friedman, Xxxxxxx & Xxxxxxx May 20, 1991
Renner, Kenner, Greive, Bobak, Xxxxxx & Xxxxx May 6, 1991
Buckingham, Xxxxxxxxx & Xxxxxxxxx May 6, 1991
IN WITNESS WHEREOF, the undersigned have entered into this agreement as
of the 22nd day of July 1991.
K&F INDUSTRIES, INC.
By: /s/ X. XXXXXXXX
-----------------------------
Title:
XXXXXXX X. XXXXXXXX 1,346,154 shares of Common
By: /s/ XXXXXXX X. XXXXXXXX Stock for $3,646,153.85
-----------------------------
Title:
SHEARSON XXXXXX XXXXXX CAPITAL 78,384 shares of
PARTNERS II, L.P. Convertible Preferred
Stock for $6,632,571.86
By: /s/ [ILLEGIBLE]
-----------------------------
Title: PRESIDENT
SHEARSON XXXXXX XXXXXX MERCHANT 115,353 shares of
BANKING PORTFOLIO PARTNERSHIP Convertible Preferred
L.P. Stock for $9,760,607.00
By: /s/ [ILLEGIBLE]
-----------------------------
Title: VICE PRESIDENT
SHEARSON XXXXXX XXXXXX OFFSHORE 31,713 shares of
INVESTMENT PARTNERSHIP L.P. Convertible Preferred
Stock for $2,683,399.26
By: /s/ [ILLEGIBLE]
-----------------------------
Title: PRESIDENT
SHEARSON XXXXXX XXXXXX OFFSHORE 12,050 shares of
INVESTMENT PARTNERSHIP - Convertible Preferred
JAPAN L.P. Stock for $1,019,575.72
By: /s/ [ILLEGIBLE]
-----------------------------
Title: PRESIDENT
MH CAPITAL PARTNERS, INC. 12,500 shares of
Convertible Preferred
By: /s/ [ILLEGIBLE] Stock for $1,057,692.31
-----------------------------
Title:
[K&F INDUSTRIES LETTERHEAD]
June 26, 1991
Deloitte & Touche
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: K&F Industries, Inc.
Dear Sirs:
As General Counsel of K&F Industries, Inc. and subsidiaries (the "Company"), I
advise you as follows in connection with your examination of the accounts of the
Company as at March 31, 1991.
I call your attention to the fact that as General Counsel for the Company I have
general supervision of the Company's legal affairs. In such capacity, I review
litigation and claims threatened or asserted involving the Company and consult
with outside legal counsel with respect thereto where I deem it appropriate.
Subject to the foregoing, to the letters received from Messrs. Shereff,
Friedman, Xxxxxxx & Xxxxxxx and Renner, Kenner, Greive, Bobak, Xxxxxx & Xxxxx
("Outside Counsel"), I advise you that since March 31, 1990, neither I, nor the
lawyer over whom I exercise general legal supervision, have given substantive
attention to, or represented the Company in connection with any other loss
contingencies coming within the scope of Clause (a) of Paragraph 5 of the
Statement of Policy referred to in the last paragraph of this letter.
With respect to Clauses (b) or (c) of Paragraph 5 of the ABA Statement of
Policy, I advise you, subject to the last paragraph of this letter, that no
matters have been specifically identified.
The information set forth herein is as of June 26, 1991, the date on which we
completed our internal review procedures for purposes of preparing this
response, except as otherwise noted, and I disclaim any undertaking to advise
you of changes which thereafter may be brought
Deloitte & Touche
June 26, 1991
Page 2
to my attention or to the attention of the lawyer over whom I exercise general
legal supervision.
This response is limited by, and in accordance with the ABA Statement of Policy
Regarding Lawyer's Responses to Auditor's Requests for Information (December
1975); without limiting the generality of the foregoing, the limitations set
forth in such generality of the foregoing, the limitations set forth in such
Statement on the scope and use of this response (Paragraphs 2 and 7) are
specifically incorporated herein by reference, and any description herein of any
"loss contingencies" is qualified in its entirety by Paragraph 5 of the
Statement and the accompanying commentary (which is an integral part of the
Statement). Consistent with the last sentence of Paragraph 6 of the ABA
Statement of Policy, this will confirm as correct the Company's understanding
that whenever, in the course of performing an unasserted possible claim or
assessment that may call for financial statement disclosure, I have formed a
professional conclusion that the company must disclose or consider disclosure
concerning such possible claim or assessment, I, as a matter of professional
responsibility to the Company, will so advise the Company and will consult with
the Company concerning the question of such disclosure and the applicable
requirements of Statement of Financial Accounting Standards No. 5.
Very truly yours,
/s/ XXXXXXX X. XXXXXXX
Xxxxxxx X. Xxxxxxx
[SHEREFF, FRIEDMAN, XXXXXXX & XXXXXXX LETTERHEAD]
May 20, 1991
Xx. Xxx Xxxxxx
Deloitte & Touche
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Re: K&F Industries, Incorporated
Dear Xx. Xxxxxx:
By letter dated April 12, 1991, our client, K&F Industries Incorporated
(the "Company") has requested that we furnish you with certain information in
connection with your examination of its financial statements for the fiscal year
ended March 31, 1991.
Our response is directed only to matters to which we have devoted
substantive attention in the form of legal consultation and, where appropriate,
legal representation. In the preparation of this response, our procedures have
been limited to an endeavor to determine from lawyers currently in our firm who
have performed services for the Company whether such services have involved
substantive attention in the form of legal consultation concerning any item that
could involve a material loss. Accordingly, it is to be noted that we have made
no independent review of the operations of the Company for purposes of this
response.
Without limiting the generality of the foregoing and subject to the
reservations expressed in the balance of this letter, we advise you that through
the date of this letter, we have not been engaged to give any substantive
attention on behalf of the Company in the form of legal consultation or
representation in connection with any pending or overtly threatened litigation
involving the Company except as set forth below.
We are representing the Company in two lawsuits relating to the
Company's acquisition of the Aircraft Braking Systems Division and the
Engineered Fabrics Division from Loral Corporation ("Loral"). In Banner
Industries, Inc. x. Xxxxxxx
Xx. Xxx Xxxxxx
May 20, 1991
Page 2
Xxxxxxxx, et. al., the Company has been named in a lawsuit along with Loral and
the members of the Board of Directors of Loral. Banner Industries, Inc.,
("Banner") claims that the Company participated in and aided and abetted the
other defendants' breach of duty to Banner, and that the Company and the other
defendants defrauded Banner. As best we understand the complaint, Banner
alleges that the Company assisted other defendants in breaching their alleged
duty to Banner. In the complaint Banner seeks a judgment requiring the
defendants to nullify the sale to the Company and to conduct a new auction for
the sale of the two divisions of Loral, or alternatively, damages to be
determined at trial but in excess of $75 million, plus interest, and punitive
damages.
By order, dated January 18, 1990, the Court granted the Company's and
the other defendants' motion to dismiss the fraud claims and denied the
Company's and other defendants' motion to dismiss the breach of duty claim.
Banner has filed a notice of appeal with respect to the denial of the motion to
dismiss the breach of duty claims. Banner's appeal has been perfected, and the
Company intends to perfect its appeal at the appropriate time. On February 2,
1990, the Company answered Banner's complaint, denied the material allegations,
and denied any wrongdoing. Discovery has commenced, and Banner has been ordered
to produce certain materials to defendants. While it is not possible to predict
the outcome of litigation, based on our current understanding of the law and the
facts, we believe that the likelihood of an adverse outcome that results in a
material liability to the Company is remote.
In Xxxxx et. al., x. Xxxxxx et. al., the plaintiffs have purported to
commence a derivative action against the Company and the directors of Loral
claiming the directors breached their fiduciary duties to Loral's shareholders,
and that the Company aided and abetted the breach of duty. After the Court
denied the Company's motion to dismiss the complaint, the Company answered the
complaint, denied its material allegations, and denied any wrongdoing. By
agreement of the parties, discovery in this action is being conducted jointly
with discovery in the Banner Industries litigation. The plaintiffs seek a
judgment requiring the defendants to pay an unspecified amount of damages to
Loral because of the alleged wrongs, to pay plaintiff's costs and expenses of
the action (including attorneys' fees), and declaring a "break-up fee" null and
void and against public policy. The Company intends to defend the action
vigorously. Although it is
Xx. Xxx Xxxxxx
May 20, 1991
Page 3
too early to render any opinion with respect to the outcome of the action, we
believe, based on our current understanding of the facts and the law, that the
Company has meritorious factual and/or legal defenses to the action.
This letter which should not be regarded as an opinion, is solely for
your information and assistance in connection with your examination of, and
report on, the financial statements of the Company. The information set forth
herein is as of the date of this letter, except as otherwise noted, and we
disclaim any undertaking to advise you of changes which may hereafter be brought
to our attention. This letter is not to be quoted in whole or in part or
otherwise referred to in the financial statements of the Company or related
documents, or filed with any governmental agency or delivered to any other
person, without the prior written consent of this firm, except as otherwise
required by law.
This response is limited by, and in accordance with, the ABA Statement
of Policy Regarding Lawyers' Response to Auditors' Requests for Information
(December 1975); without limiting the generality of the foregoing, the
limitations set forth in such Statement and on the scope and use of this
response (paragraphs 2 and 7) are specifically incorporated herein by reference,
and any description herein of any "loss contingencies" is qualified in its
entirety by paragraph 5 of the Statement and the accompanying Commentary (which
is an integral part of the Statement).
Consistent with the last sentence of paragraph 6 of the ABA Statement
of Policy and pursuant to the Company's request, this will confirm as correct
the Company's understanding as set forth in its audit inquiry letter to us that
whenever, in the course of performing legal services for the Company, with
respect to a matter recognized to involve an unasserted possible claim or
assessment that may call for financial statement disclosure, we have formed a
professional conclusion that the Company must disclose or consider disclosure
concerning such possible claim or assessment, we, as a matter of professional
responsibility to the Company, will so advise the Company and will consult with
the
Xx. Xxx Xxxxxx
May 20, 1991
Page 4
Company concerning the question of such disclosure and the applicable
requirements of the Statement of Financial Accounting Standards No. 5.
Very truly yours,
/s/ SHEREFF, FRIEDMAN, XXXXXXX & XXXXXXX
SHEREFF, FRIEDMAN, XXXXXXX & XXXXXXX
SFHG:RDW:LGC:RDH:mf
CC: Xxxxxxx X. Xxxxxxx
[RENNER, KENNER, GREIVE, BOBAK, XXXXXX & XXXXX LETTERHEAD]
May 6, 1991
Deloitte & Touche
One Cascade Plaza - 1600 [DATE STAMP]
Xxxxx, XX 00000-0000
Re: Aircraft Braking Systems Corporation
Gentlemen:
Our client, Aircraft Braking Systems Corporation, has requested that we provide
you with certain information to assist in the audit of their financial
statements for the year ended March 31, 1991. We respond to our client's inquiry
of April 16, 1991, as follows.
No judgments were rendered or settlements made on behalf of the company through
our firm during the period in interest.
The company is presently a defendant in a patent infringement suit
captioned the X.X. Xxxxxxxx Company v. Aircraft Braking Systems Corporation,
Case No. 91-048, in the United States District Court for the District of
Delaware. The Action was filed January 31, 1991, but proceedings have been
stayed pending settlement discussions between the parties. It is our belief that
we have strong defenses on both issues of patent infringement and patent
validity and should prevail if this case is fully litigated. The parties are
presently contemplating nonbinding arbitration as a means for hastening a
resolution of the controversy. It is our understanding that our client's
exposure in this matter is minimal, for it has not engaged in the active
manufacture, sale or distribution of the accused product. Based upon this
understanding. Aircraft Braking Systems Corporation would, at worst, be
confronted with an injunction barring future infringing activity in the event
it were to lose in this litigation.
We are unaware of any unasserted claims or assessments involving Aircraft
Braking Systems Corporation.
In the course of performing legal services for the client with respect to a
matter recognized to involve an unasserted possible claim or assessment that
may call for financial statement disclosure, we have formed a professional
conclusion that the client should disclose or
Deloitte & Touche
Page 2
May 6, 1991
consider disclosure concerning such possible claim or assessment, as a matter
of professional responsibility to the client, we will so advise the client and
will consult with the client concerning the question of such disclosure and the
applicable requirements of Statement of Financial Accounting Standards No. 5.
Should you need anything further in this matter, please do not hesitate to
contact the undersigned.
Sincerely,
/s/ XXX X. XXXXX
Xxx X. Xxxxx
RLW:mls
[BUCKINGHAM, XXXXXXXXX & XXXXXXXXX LETTERHEAD]
May 6, 1991
Deloitte & Touche
Xxx Xxxxxxx Xxxxx
Xxxxx, XX 00000
Re: Aircraft Braking Systems Corporation
Gentlemen:
By letter dated April 3, 1991, X.X. Xxxxxxx, Vice President and Controller
of Aircraft Braking Systems Corporation (Company) has requested Buckingham,
Xxxxxxxxx & Xxxxxxxxx to furnish you with certain information in connection with
an audit of the financial records of the Company for the period ended March 31,
1991.
Please be advised that we represent the Company on specific matters as
referred and, therefore, there may exist matters of a legal nature about which
we have not been consulted. Thus, we limit this response to matters as to which
we have been engaged and to which we have devoted substantive attention on
behalf of the Company in the form of legal consultation and/or representation.
We call your attention to the fact that although this firm during the past year
represented the Company in connection with certain workers' compensation matters
before the Ohio Bureau of Workers' Compensation, we are not undertaking to
comment herein upon such administrative proceedings.
We are not undertaking to comment upon loss contingencies that may arise
from pending litigation with respect to which the Company is being defended by
other counsel, including counsel retained by the Company's insurance carrier. We
are also not undertaking to comment in this letter upon (1) loss contingencies
that may arise from contractually assumed obligations of the Company, or (2)
unasserted claims or assessments, unless the Company has specifically identified
such items to us and requested our comment thereon.
Subject to the foregoing and to the other limitations contained in this
letter, we advise that since April 1, 1989 we have not been engaged to give
substantive attention to, or
Deloitte & Touche
Page 2
represent the Company in connection with loss contingencies coming within the
scope of clause (s) of paragraph 5 of the ABA Statement of Policy Regarding
Lawyers' Response to Auditors' Requests for Information (December, 1975) (the
"Statement of Policy") and involving individual claims greater than $100,000.00
and matters less than $100,000.00 aggregating greater than $200,000.00, except
as follows:
The Complaint on the Assessment of Real Property that was
reported in our letter of June 5, 1990, for the period ended
March 31, 1990. The most recent complaint of which we have
knowledge is a Complaint that was filed by the Springfield Local
Board of Education on April 2, 1990, requesting a reevaluation of
the Company's real estate at 0000 Xxxxxxxxx Xxxx, Xxxxx, Xxxx for
tax year 1989. In the Complaint of April 2, 1990, Complainant
seeks to have the total taxable value of the real property
increased to $5,030,117.00 from the current total taxable value
of $1,866,820.00. We are unable at this time to make an estimate
as to what increase in the valuation is probable, if any. We have
been engaged by the Company to vigorously defend and maintain the
present valuation.
The information set forth herein is as of the date of this letter, except
as otherwise noted, and we disclaim any undertaking to advise you of changes
which hereafter may be brought to our attention.
The response is limited by, and in accordance with, the Statement of
Policy, without limiting the generality of the foregoing, the limitations set
forth in such Statement on the scope and use of this response (paragraphs 2 and
7) are specifically incorporated herein by reference and, any description herein
of any "loss contingencies" is qualified in its entirety by Paragraph 5 of the
Statement of Policy and the accompanying Commentary (which is an integral part
of the Statement). Consistent with the last sentence of Paragraph 6 of the
Statement of Policy, and pursuant to the Company's request, this will confirm as
correct the Company's understanding as set forth in its audit inquiry letter to
us that, whenever in the course of performing legal services for the Company
with respect to a matter recognized to involve an unasserted possible claim or
assessment that may call for financial statement disclosure, we, have formed a
professional conclusion that the Company must disclose or consider disclosure
concerning such possible claim or assessment, we as a matter of professional
responsibility to the Company, will so advise the Company and will consult with
the Company concerning the question of such disclosure
and the applicable requirements of Statement of Financial Accounting Standards
No. 5.
This letter is not to be quoted without further consultation with us.
Very truly yours,
BUCKINGHAM, XXXXXXXXX & XXXXXXXXX
A Legal Professional Association
By /s/ XXXXXX X. XXXXXXXX
-------------------------------
Xxxxxx X. Xxxxxxxx
XXX/gmg
cc: X. X. Xxxxxxx, Vice President & Controller
Aircraft Braking Systems Corporation
