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EXHIBIT 1.1
$4,600,000,000
XXXXXXX COMPANY
$1,000,000,000 5.50% NOTES DUE 2003
$1,000,000,000 6.00% NOTES DUE 2006
$1,500,000,000 6.60% NOTES DUE 2011
$1,100,000,000 7.45% DEBENTURES DUE 2031
PURCHASE AGREEMENT
New York, New York
March 23, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxx Securities Inc.
Banc of America Securities LLC
As representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxx Company, a Delaware corporation (the "Company"), proposes to issue
and sell to the several parties named in Schedule I hereto (the "Initial
Purchasers"), for whom you are acting as representatives (the
"Representatives"), $1,000,000,000 principal amount of its 5.50% Notes due 2003
(the "Two-Year Notes"); $1,000,000 principal amount of its 6.00% Notes due 2006
(the "Five- Year Notes"); $1,500,000 principal amount of its 6.60% Notes due
2011 (the "Ten-Year Notes" and, together with the Two-Year Notes and the
Five-Year Notes, the "Notes") and $1,100,000,000 principal amount of its 7.45%
Debentures due 2031 (the "Debentures" and, together with the Notes, the
"Securities"). The Securities are to be issued under an Indenture dated as of
March 15, 2001 between the Company and BNY Midwest Trust Company, as trustee
(the "Trustee"), as supplemented by Supplemental Indenture No. 1 thereto, dated
as of March 29, 2001 (as so supplemented, the "Indenture"). The Securities will
have the benefit of a Registration Rights Agreement, to be dated March 29, 2001
(the "Registration Rights Agreement"), pursuant to which the Company will agree
to register the Securities under the Securities Act, subject to the terms and
conditions therein specified. To the extent there are no additional parties
listed
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on Schedule I hereto other than you, the terms Representatives and Initial
Purchasers shall mean either the singular or plural as the context requires. The
use of the neuter in this Purchase Agreement shall include the feminine and
masculine wherever appropriate. Certain terms used herein are defined in Section
17 hereof.
The sale of the Securities to the Initial Purchasers will be made without
registration of the Securities under the Securities Act in reliance on
exemptions from the registration requirements of the Securities Act.
The sale of the Securities to the Initial Purchasers is being made in
connection with the Company's acquisition of Keebler Foods Company (the "Keebler
Acquisition") which is to be effected through the merger of Kansas Merger
Subsidiary, Inc. with and into Flowers Industries, Inc. ("Flowers") pursuant to
an Agreement and Plan of Restructuring and Merger (the "Flowers Merger
Agreement") dated as of October 26, 2000 and the merger of FK Merger Subsidiary,
Inc. (as assignee of FK Acquisition Corp.) with and into Keebler Foods Company
("Keebler") pursuant to an Agreement and Plan of Merger (the "Keebler Merger
Agreement" and, together with the Flowers Merger Agreement, the "Merger
Agreements") dated October 26, 2000 (collectively, the "Mergers"). Prior to the
Keebler Acquisition, Flowers will contribute certain assets and liabilities (the
"Flowers Foods Business") to Flowers Foods, Inc., a wholly owned subsidiary of
Flowers ("Flowers Foods"), and the capital stock of Flowers Foods will be
distributed to Flowers' stockholders pursuant to a Distribution Agreement dated
as of October 26, 2000 between Flowers and Flowers Foods, as amended (the
"Distribution Agreement").
In connection with the sale of the Securities, the Company has prepared a
preliminary offering memorandum dated March 13, 2001 (as amended or supplemented
prior to the Execution Time, the "Preliminary Memorandum") and a final offering
memorandum dated March 23, 2001 (as amended or supplemented prior to the
Execution Time, the "Final Memorandum"). All references herein to the
Preliminary Memorandum and the Final Memorandum shall be deemed to include all
annexes and exhibits thereto and all documents that are, or are deemed to be,
incorporated by reference therein as of the Execution Time, and any supplement
thereto prepared in connection with the listing of the Securities on the
Luxembourg Stock Exchange prior to the Execution Time. The terms "amendment,"
"supplement" and "amend" as used herein shall be deemed to include all documents
filed by the Company or Keebler with the Commission under the Exchange Act
subsequent to the date of the Preliminary Memorandum or the Final Memorandum, as
applicable, that are, or are deemed to be, incorporated by reference therein.
Unless stated to the contrary herein, all references to the Final Memorandum are
to the Final Memorandum at the Execution Time and are not meant to include any
amendment or supplement thereto or any information incorporated by reference
therein subsequent to the Execution Time. The Company hereby confirms that it
has authorized the use of the Preliminary Memorandum and the Final Memorandum,
and any amendment or supplement thereto, in connection with the offer and sale
of the Securities by the Initial Purchasers.
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1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each of the Initial Purchasers that:
(a) The Preliminary Memorandum, on the date thereof, did not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. At the Execution Time and at
the Closing Date (as defined in Section 3 below), the Final Memorandum did
not and will not, and any amendment or supplement thereto, at the date
thereof and at the Closing Date, will not, contain any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representation or warranty as to the information contained in or omitted
from the Preliminary Memorandum or the Final Memorandum, or any amendment
or supplement thereto, in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of the Initial
Purchasers through the Representatives specifically for inclusion therein.
The statistical and market-related data included in the Preliminary
Memorandum and the Final Memorandum are based on or derived from sources
that the Company reasonably believes to be reliable and accurate.
(b) The documents incorporated or deemed to be incorporated by
reference in the Preliminary Memorandum and the Final Memorandum, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act, and any further documents so filed and
incorporated or deemed to be incorporated by reference in the Preliminary
Memorandum and the Final Memorandum, when such documents are filed with the
Commission, will conform in all material respects to the requirements of
the Exchange Act, and when read together with the other information in the
Preliminary Memorandum or the Final Memorandum, as the case may be, at the
time filed did not, and at the Closing Date will not, contain any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) Neither the Company nor any of its subsidiaries (which term, for
purposes of this Purchase Agreement, shall include Keebler and its
subsidiaries and Flowers, but excluding the Flowers Foods Business
(collectively, the "Subsidiaries")) has sustained, since the date of the
latest financial statements of the Company or Keebler, as applicable,
included or incorporated by reference in the Final Memorandum, any material
loss or interference with its business that is material to the business of
the Company and the Subsidiaries taken as a whole from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Final Memorandum; and, since the
respective dates as of which information is given in the Final Memorandum,
there has not been any material adverse change, or any development that
would reasonably be likely to result in a material adverse change, in the
general affairs, management,
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financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole, whether or not in the
ordinary course of business (a "Material Adverse Effect"), in each case,
otherwise than as set forth or contemplated in the Final Memorandum.
(d) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with the corporate power and authority to own its properties and conduct
its business as described in the Final Memorandum; the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to qualify or to be in good
standing would not have a Material Adverse Effect; each of the Subsidiaries
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, with the
corporate power and authority to own its properties and conduct its
business as described in the Final Memorandum and is duly qualified as a
foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure to qualify, to have been duly incorporated or to
be in existence or good standing would not have a Material Adverse Effect.
(e) All of the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable; except as otherwise disclosed in the Final Memorandum, all
of the issued and outstanding capital stock or other ownership interests of
each Subsidiary have been duly authorized and validly issued, are fully
paid and non-assessable and (except for shares necessary to qualify
directors or to maintain any minimum number of stockholders required by law
or are immaterial to the Company's ability to control such Subsidiary) are
or, at the Closing Date will be, owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity except (i) for a lien on the stock of
Xxxxxxx (Deutschland) GmbH, (ii) as described in the Final Memorandum and
(iii) for such security interests, mortgages, pledges, liens, encumbrances,
claims or equities that are immaterial to the Company and the Subsidiaries
taken as a whole.
(f) This Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(g) The Registration Rights Agreement has been duly authorized by the
Company and at the Closing Date will have been duly executed and delivered
by the Company and will constitute a valid and legally binding agreement of
the Company, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization or other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles or public policy that
could prevent enforcement of any provision of the Registration
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Rights Agreement, including, without limitation, provisions which might
require indemnification or contribution of obligations arising out of the
failure to comply with applicable state or federal securities laws.
(h) The Indenture has been duly authorized by the Company and at the
Closing Date will have been duly executed and delivered by the Company and
will constitute a valid and legally binding agreement of the Company,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization or other laws of general
applicability relating to or affecting the enforcement of creditors' rights
and to general equity principles; and the Indenture is in a form that will
permit it to be qualified under the Trust Indenture Act.
(i) The Securities and the Exchange Securities have been duly
authorized and, when issued and authenticated in the manner provided for in
the Indenture and delivered pursuant to this Purchase Agreement and the
Registration Rights Agreement, respectively, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company, entitled to the benefits of the
Indenture and enforceable against the Company in accordance with the terms
thereof, subject, as to enforcement, to bankruptcy, insolvency,
reorganization or other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles.
(j) The Registration Rights Agreement, the Indenture, the Securities
and the Exchange Securities will each conform, in all material respects, to
the descriptions thereof in the Final Memorandum.
(k) The issue and sale of the Securities and the Exchange Securities
and the compliance by the Company and the Subsidiaries, as applicable, with
all of the provisions of the Securities, the Exchange Securities, the
Indenture, this Purchase Agreement, the Registration Rights Agreement, and
the consummation of the transactions herein and therein contemplated, will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the property or
assets of the Company or any of the Subsidiaries pursuant to the terms of,
any indenture, mortgage, deed of trust, loan or credit agreement or other
agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which the Company or any of the Subsidiaries is bound or to
which any of the property or assets of the Company or any of the
Subsidiaries is subject, except where any such conflict, breach, violation,
default, creation or imposition (individually or in the aggregate) would
not reasonably be expected to have a Material Adverse Effect or a material
adverse effect on the ability of the Company and the Subsidiaries to
perform their respective obligations hereunder; nor will such action result
in any violation of the provisions of the Restated Certificate of
Incorporation, as amended, or the By-Laws of the Company, or the charter or
bylaws of any of Xxxxxxx USA Inc., Xxxxxxx Company of Great Britain
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Limited or Keebler Foods Company (collectively, the "Significant
Subsidiaries"); nor will such action result in any violation of the
provisions of any statute or law or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company
or any of the Subsidiaries or any of their properties, except where any
such violation (individually or in the aggregate) would not reasonably be
expected to have a Material Adverse Effect or a material adverse effect on
the ability of the Company and the Subsidiaries to perform their respective
obligations hereunder.
(l) No consent, approval, authorization, order, registration, filing
or qualification of or with any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries or any of their
properties is required for the issue and sale of the Securities or the
Exchange Securities or the consummation of the other transactions
contemplated by the Indenture, this Purchase Agreement, the Registration
Rights Agreement, except for such consents, approvals, authorizations,
orders, registrations, filings or qualifications which shall have been
obtained or made prior to the Closing Date or as may be required by the
securities or blue sky laws of the various states, the Securities Act, the
Trust Indenture Act and the securities laws of any jurisdiction outside the
United States in which the Securities or the Exchange Securities are
offered.
(m) Other than as set forth in the Final Memorandum, there are no
legal or governmental proceedings pending to which the Company or any of
the Subsidiaries is a party or of which any property of the Company or any
of the Subsidiaries is the subject which would reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect or which
would materially and adversely affect the consummation of the transactions
contemplated under this Purchase Agreement, the Registration Rights
Agreement, the Indenture, the Merger Agreements or the Distribution
Agreement or the performance by the Company or the Subsidiaries of their
respective obligations thereunder; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(n) PricewaterhouseCoopers LLP, who have audited certain financial
statements of each of the Company and its subsidiaries and Keebler and its
subsidiaries and delivered their reports with respect to the audited
financial statements of each of the Company and its subsidiaries and
Keebler and its subsidiaries, are independent public accountants with
respect to each of the Company and Keebler as required by the Securities
Act and the rules and regulations of the Commission thereunder.
(o) The historical consolidated financial statements of each of the
Company and its subsidiaries and Keebler and its subsidiaries incorporated
by reference in the Final Memorandum present fairly in all material
respects the financial condition, results of operations and cash flows of
each of the Company and its consolidated subsidiaries and Keebler and its
consolidated subsidiaries, respectively, as of the dates and for the
periods indicated, comply in all material
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respects as to form with the applicable accounting requirements of the
Securities Act and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein); the selected financial data
set forth under the captions "Offering Memorandum Summary -- Selected
Historical and Pro Forma Financial Data of Kellogg," "-- Selected
Historical Financial Data of Keebler" and "Capitalization" in the Final
Memorandum fairly present in all material respects, on the basis and
subject, in the case of pro forma financial data, to the assumptions stated
in the Final Memorandum, the information included therein; the pro forma
combined financial statements included in the Final Memorandum are based on
assumptions that provide a reasonable basis for presenting the significant
effects directly attributable to the transactions and events described
therein, the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma adjustments reflect the proper application
of those adjustments to the historical financial statement amounts in the
pro forma combined financial statements included in the Final Memorandum;
and the pro forma combined financial statements included in the Final
Memorandum comply as to form in all material respects with the applicable
requirements of Regulation S-X under the Securities Act.
(p) In the ordinary course of its business, the Company periodically
reviews the effect of applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws") on the business, operations and
properties of the Company and the 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, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, except as set
forth in or contemplated in the Final Memorandum.
(q) The Company and the Subsidiaries own, possess, license or have
other rights to use, on reasonable terms, all patents, patent applications,
trade and service marks, trade and service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology, know-how and
other intellectual property (collectively, the "Intellectual Property")
necessary for the conduct of their respective businesses as now conducted
free and clear of any material security interests, claims, liens or
encumbrances, except as would not reasonably be expected to have a Material
Adverse Effect or as set forth in or contemplated in the Final Memorandum;
and none of the Intellectual Property, to the knowledge of the Company,
conflicts with the valid trademark, trade name, copyright, patent, patent
right or intangible asset of any other person to the extent that such
conflict has or would reasonably be expected to have a Material Adverse
Effect.
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(r) None of the transactions contemplated hereby, including, without
limitation, the use of the proceeds from the sale of the Securities, will
violate or result in a violation of Section 7 of the Exchange Act or any
rule or regulation promulgated thereunder, including, without limitation,
Regulations T, U and X of the Board of Governors of the Federal Reserve
System.
(s) Neither the Company nor any of its Affiliates nor any person
acting on its or their behalf (other than the Initial Purchasers, as to
whom the Company makes no representation) has, directly or indirectly, made
offers or sales of any security, or solicited offers to buy any security,
under circumstances that would require the registration of the Securities
under the Securities Act.
(t) Neither the Company nor any of its Affiliates nor any person
acting on its or their behalf (other than the Initial Purchasers, as to
whom the Company makes no representation) has engaged in any form of
general solicitation or general advertising (within the meaning of Rule
502(c) under the Securities Act) in connection with any offer or sale of
the Securities in the United States.
(u) Neither the Company nor any of its Affiliates nor any person
acting on its or their behalf (other than the Initial Purchasers, as to
whom the Company makes no representation) has engaged in any directed
selling efforts with respect to the Securities, and each of them has
complied with the offering restrictions requirements of Regulation S. Terms
used in this paragraph have the meanings given them in Regulation S.
(v) Assuming the accuracy of the representations and warranties and
compliance with the covenants and agreements of the Initial Purchasers
contained in Section 4 hereof, it is not necessary in connection with the
offer, sale and delivery of the Securities to the Initial Purchasers under
this Purchase Agreement or the initial resale of such Securities by the
Initial Purchasers in the manner contemplated by this Purchase Agreement
and the Final Memorandum to register the Securities under the Securities
Act or to qualify any indenture in respect of the Securities under the
Trust Indenture Act.
(w) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(x) The Company is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Final Memorandum will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(y) Neither the Company nor any of its Affiliates nor any person
acting on its or their behalf (other than the Initial Purchasers, as to
whom the Company makes no representation) has taken, directly or
indirectly, any action designed to cause or that constituted or that might
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reasonably be expected to cause or constitute, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities.
(z) The Merger Agreements have been duly authorized by the Board of
Directors of the Company, executed and delivered by the Company and the
Subsidiaries that are parties thereto and constitute the valid and legally
binding agreements of the Company and such Subsidiaries, enforceable in
accordance with their respective terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization or other laws of general
applicability relating to or affecting the enforcement of creditors' rights
and to general equity principles; the Merger Agreements are in full force
and effect and there exists no event or condition that would constitute a
breach of any representation, warranty or covenant of the Company or FK
Acquisition Corp. set forth therein or a default thereunder, except for any
such breaches or defaults that (individually or in the aggregate) would not
have a Material Adverse Effect or a material adverse effect on the ability
of the Company and the Subsidiaries (other than Keebler) that are parties
to the Merger Agreements to consummate the transactions contemplated
thereby in accordance with the terms thereof prior to the Closing Date; and
all conditions to the consummation of the transactions contemplated by the
Merger Agreements (other than those to be fulfiled at the completion of the
Mergers) have been satisfied in accordance with the terms thereof.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Initial Purchasers in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Initial Purchaser.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to the Initial Purchasers, and each Initial Purchaser agrees, severally and
not jointly, to purchase from the Company, at a purchase price of 99.740% of the
principal amount thereof for the Two-Year Notes, of 99.355% of the principal
amount thereof for the Five-Year Notes, of 99.412% of the principal amount
thereof for the Ten-Year Notes and 98.625% of the principal amount thereof for
the Debentures, in each case plus accrued interest, if any, from March 29, 2001
to the Closing Date, the principal amount of the Securities set forth opposite
the name of such Initial Purchaser in Schedule I hereto.
The obligation of the Company to issue and sell the Securities shall be
subject to the Mergers having become effective prior to the Closing Date, in
accordance with applicable law on the terms and conditions set forth in the
Merger Agreements in the forms previously delivered to the Representatives.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at 10:00 a.m., New York City time, on March 29, 2001, which date and
time may be postponed by agreement between the Initial Purchasers and the
Company or as provided in Section 9 hereof (such date and time
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of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Initial Purchasers against payment by the
several Initial Purchasers through the Representatives of the purchase price
thereof by wire transfer of same-day funds to the account specified by the
Company. Delivery of the Securities shall be made through the facilities of The
Depository Trust Company, including for the accounts of Clearstream and
Euroclear, unless the Representatives shall otherwise instruct.
4. Offering of Securities; Restrictions on Transfer. Each Initial
Purchaser, severally and not jointly, represents and warrants to and agrees with
the Company that:
(a) It has not offered or sold, and will not offer or sell, any
Securities except (i) to those persons it reasonably believes to be
qualified institutional buyers (as defined in Rule 144A under the
Securities Act) and that, in connection with each such sale, it has taken
or will take reasonable steps to ensure that the purchaser of such
Securities is aware that such sale is being made in reliance on Rule 144A,
and (ii) in accordance with the restrictions set forth in Exhibit A hereto.
(b) Neither it nor any person acting on its behalf has made or will
make offers or sales of the Securities in the United States by means of any
form of general solicitation or general advertising within the meaning of
Regulation D in the United States.
5. Agreements. The Company agrees with each of the Initial Purchasers
that:
(a) The Company will furnish to each Initial Purchaser and to counsel
for the Initial Purchasers, without charge, during the period referred to
in paragraph (c) below, as many copies of the Final Memorandum and any
amendments and supplements thereto as they may reasonably request.
(b) The Company will not amend or supplement the Final Memorandum,
other than by filing documents under the Exchange Act that are incorporated
by reference therein, without the prior written consent of the
Representatives, which consent shall not be unreasonably withheld;
provided, however, that, prior to the completion of the sale of the
Securities by the Initial Purchasers (as determined by the
Representatives), the Company will not file any document under the Exchange
Act that is incorporated by reference into the Final Memorandum unless,
prior to such proposed filing, the Company has furnished the
Representatives with a copy of such document for their review and the
Representatives have not reasonably objected to the filing of such
document. The Company will promptly advise the Representatives when any
document filed under the Exchange Act that is incorporated by reference
into the Final Memorandum shall have been filed with the Commission.
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(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers, any event occurs as a result of which
the Final Memorandum, as then amended or supplemented, would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it should be necessary to
amend or supplement the Final Memorandum to comply with applicable law, the
Company promptly (i) will notify the Representatives of any such event;
(ii) subject to the requirements of paragraph (b) of this Section 5, will
prepare an amendment or supplement that will correct such statement or
omission or effect such compliance; and (iii) will supply any supplemented
or amended Final Memorandum to the several Initial Purchasers and counsel
for the Initial Purchasers without charge in such quantities as you may
reasonably request.
(d) The Company will arrange, if necessary, for the qualification of
the Securities for sale by the Initial Purchasers under the laws of such
jurisdictions as the Representatives may reasonably designate and will
maintain such qualifications in effect so long as required for the sale of
the Securities; provided, that in no event shall the Company be obligated
to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of process
in suits in any jurisdiction where it is not now so subject or subject
themselves to taxation in any such jurisdiction where it is not then so
subject. The Company will promptly advise the Representatives of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(e) The Company will not, and will not permit any of its Affiliates
to, resell any Securities that have been acquired by any of them.
(f) Neither the Company nor any of its Affiliates nor any person
acting on its or their behalf (other than the Initial Purchasers, as to
whom the Company makes no covenant) will, directly or indirectly, make
offers or sales of any security, or solicit offers to buy any security,
under circumstances that would require the registration of the Securities
under the Securities Act.
(g) Neither the Company nor any of its Affiliates nor any person
acting on its or their behalf (other than the Initial Purchasers, as to
whom the Company makes no covenant) will engage in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States.
(h) So long as any of the Securities are "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, the Company
will, during any period in which it is not subject to and in compliance
with Section 13 or 15(d) of the Exchange Act, provide to each holder of
such restricted securities and to each prospective purchaser (as designated
by such holder) of
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such restricted securities, upon the request of such holder or prospective
purchaser, any information required to be provided by Rule 144A(d)(4) under
the Securities Act. This covenant is intended to be for the benefit of the
holders, and the prospective purchasers designated by such holders, from
time to time of such restricted securities.
(i) Neither the Company nor any of its Affiliates nor any person
acting on its or their behalf (other than the Initial Purchasers, as to
whom the Company makes no covenant) will engage in any directed selling
efforts with respect to the Securities, and each of them will comply with
the offering restrictions requirement of Regulation S. Terms used in this
paragraph have the meanings given to them in Regulation S.
(j) The Company will cooperate with the Initial Purchasers and use its
reasonable best efforts to permit the Securities to be eligible for
clearance and settlement through The Depository Trust Company, Clearstream
and Euroclear. The Company has caused the Securities, and will use its
reasonable best efforts to cause the Exchange Securities, to be listed on
the Luxembourg Stock Exchange.
(k) The Company will not during the period from the date hereof
through and including the Closing Date, without the prior written consent
of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, grant any
other option to purchase or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or
any Affiliate of the Company or any person in privity with the Company or
any Affiliate of the Company), directly or indirectly, or announce the
offering of, any debt securities issued or guaranteed by the Company (other
than the Securities and commercial paper).
(l) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(m) The Company will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Final Memorandum under the
caption "Use of Proceeds."
(n) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the copying and distribution of the Indenture and
the Registration Rights Agreement and the preparation of the certificates
representing the Securities; (ii) the preparation, printing or reproduction
of the Preliminary Memorandum and the Final Memorandum and each amendment
or supplement to either of them; (iii) the printing (or reproduction) and
delivery (including postage,
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air freight charges and charges for counting and packaging) of such copies
of the Preliminary Memorandum and the Final Memorandum, and all amendments
or supplements to either of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the
Securities; (iv) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (v) the printing (or reproduction) and delivery of this
Purchase Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (vi) any registration or qualification of the
Securities for offer and sale under the securities or blue sky laws of the
several states (including filing fees and the reasonable fees and expenses
of counsel for the Initial Purchasers relating to such registration and
qualification); (vii) the transportation and other expenses incurred by or
on behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (viii) the fees and expenses of
the Company's accountants and the fees and expenses of counsel (including
local and special counsel) for the Company; (ix) any fees charged by
securities rating services for rating the Securities; (x) the fees and
expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture
and the Securities; (xi) any fees and expenses payable in connection with
the initial and continued listing of the Securities and the Exchange
Securities on the Luxembourg Stock Exchange, and the fees and expenses of a
Luxembourg listing and paying agent; and (xii) all other costs and expenses
incident to the performance by the Company of its obligations hereunder and
under the Registration Rights Agreement. It is understood, however, that
except as provided in this Section 5 and Sections 7 and 8, the Initial
Purchasers will pay all of their own costs and expenses, including the fees
of their counsel.
6. Conditions to the Initial Purchasers' Obligations. The obligations of
the Initial Purchasers to purchase the Securities shall be subject to the
accuracy in all material respects of the representations and warranties on the
part of the Company contained herein at the Execution Time and at the Closing
Date, to the accuracy in all material respects of the statements of the Company
made in any certificates pursuant to the provisions hereof, to the performance
in all material respects by the Company of its obligations hereunder and to the
following additional conditions:
(a) The Company shall have requested and caused Xxxxxxxx & Xxxxx,
counsel for the Company, to furnish to the Representatives its opinion,
dated the Closing Date and substantially in the form attached on Exhibit B.
(b) The Company shall have requested and caused Xxxx X. Xxxxxxx, Vice
President and Deputy General Counsel of the Company, to furnish to the
Representatives his opinion, dated the Closing Date and substantially in
the form attached as Exhibit C.
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(c) The Representatives shall have received from Xxxxx, Brown & Xxxxx,
counsel for the Initial Purchasers, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Indenture, the Registration Rights
Agreement, the Final Memorandum (as amended or supplemented at the Closing
Date) and such other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by (i) the President, any Executive Vice
President or any Senior Vice President and (ii) the Chief Financial Officer
or the Treasurer, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Final Memorandum, any
amendment or supplement to the Final Memorandum and this Purchase Agreement
and that:
(i) the representations and warranties of the Company in this
Purchase Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the
Closing Date, and the Company has complied in all material respects
with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date; and
(ii) since the date of the most recent financial statements
included in the Final Memorandum, there has been no material adverse
change, or any development that would reasonably be likely to result
in a material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole,
whether or not in the ordinary course of business, except as set forth
in or contemplated by the Final Memorandum.
(e) At the Execution Time and at the Closing Date, the Company shall
have requested and caused each of the Company's independent accountants and
Xxxxxxx'x independent accountants who have certified financial statements
and financial statement schedules incorporated by reference in the Final
Memorandum to furnish to the Initial Purchasers letters, dated respectively
as of the date hereof and as of the Closing Date, in form and substance
satisfactory to the Representatives, of the type described in AICPA
Statement on Auditing Standards No. 72.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Final Memorandum, there has not been any
change, or any development involving a prospective change, in or affecting
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth or contemplated in the Final Memorandum, the effect of which
is, in the judgment of the Representatives, so material
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and adverse as to make it impracticable or inadvisable to market the
Securities as contemplated by the Final Memorandum.
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act) and no such organization
shall have publicly announced that it has under surveillance or review
(other than an announcement with positive implications of a possible
upgrade), its rating of the Company's debt securities.
(h) Prior to the Closing Date, the Mergers shall have become effective
in accordance with applicable law on the terms and conditions set forth in
the Merger Agreements in the forms previously delivered to the
Representatives; and the Company shall have delivered to the
Representatives certificates from the States of Delaware and Georgia or
other satisfactory evidence as to the effectiveness of the Mergers.
(i) The Securities and the Exchange Securities shall be eligible for
clearance and settlement through The Depository Trust Company, Clearstream
and Euroclear.
(j) Application shall have been made for listing the Securities on the
Luxembourg Stock Exchange.
(k) The Company and the Trustee shall have entered into the Indenture.
(l) The Company and the Initial Purchasers shall have entered into the
Registration Rights Agreement.
(m) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Purchase
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Purchase Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and counsel
for the Initial Purchasers, this Purchase Agreement and all obligations of the
Initial Purchasers hereunder may be cancelled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancellation shall be given
to the Company in writing or by telephone or facsimile confirmed in writing.
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The documents required to be delivered by this Section 6 will be delivered
at the office of counsel for the Initial Purchasers, Xxxxx, Brown & Xxxxx, 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities provided for
herein is not consummated because any condition to the obligations of the
Initial Purchasers set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Initial Purchasers, the Company will reimburse the Initial Purchasers
severally through Xxxxxxx Xxxxx Xxxxxx Inc. on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Initial Purchaser, the directors, officers, employees and
agents of each Initial Purchaser and each person who controls any Initial
Purchaser within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Preliminary
Memorandum, the Final Memorandum (or in any supplement or amendment thereto) or
any information provided by the Company to any holder or prospective purchaser
of Securities pursuant to Section 5(h), or in any amendment thereof or
supplement thereto, or arise out of or are based upon the 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, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made in the Preliminary
Memorandum or the Final Memorandum, or in any amendment thereof or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Initial Purchaser through the
Representatives specifically for inclusion therein; and provided further that
with respect to any such untrue statement in or omission from the Preliminary
Memorandum, the indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any such Initial Purchaser to the extent that the sale
to the person asserting any such loss, claim, damage, liability or action was an
initial resale by such Initial Purchaser and any such loss, claim, damage,
liability or action of or with respect to such Initial Purchaser results from
the fact that both (A) to the extent required by applicable law, a copy of the
Final Memorandum was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities to such person and (B) the untrue
statement in or omission from the Preliminary
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Memorandum was corrected in the Final Memorandum. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
(b) Each Initial Purchaser severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers,
employees and agents and each person who controls the Company within the meaning
of either the Securities Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Initial Purchaser, but only with
reference to written information relating to such Initial Purchaser furnished to
the Company by or on behalf of such Initial Purchaser through the
Representatives specifically for inclusion in the Preliminary Memorandum or the
Final Memorandum (or in any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability which any Initial Purchaser may
otherwise have. The Company acknowledges that the statements set forth in the
last paragraph on the cover page regarding the delivery of the Securities and,
under the heading "Plan of Distribution," (i) the first sentence of paragraph
three, (ii) the sentences relating to concessions and reallowances, and (iii)
the paragraph related to stabilization, syndicate covering transactions and
penalty bids in the Preliminary Memorandum and the Final Memorandum constitute
the only information furnished in writing by or on behalf of the Initial
Purchasers for inclusion in the Preliminary Memorandum or the Final Memorandum
(or in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have concluded that there may
be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party; (iii)
the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action; or (iv) the indemnifying party
shall
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authorize the indemnified party to employ separate counsel at the expense of the
indemnifying party. It is understood that the indemnifying party or parties
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other charges
of more than one separate firm of attorneys (in addition to any local counsel)
at any one time for all such indemnified party or parties. Each indemnified
party, as a condition of the indemnity agreements contained in Sections 8(a) and
8(b), shall use all reasonable efforts to cooperate with the indemnifying party
in the defense of any such action or claim. No indemnifying party shall be
liable for any settlement, compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder if such
action is taken without its written consent (which consent shall not be
unreasonably withheld). An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Initial Purchasers severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Initial Purchasers may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and by the
Initial Purchasers on the other from the offering of the Securities; provided,
however, that in no case shall any Initial Purchaser (except as may be provided
in any agreement among the Initial Purchasers relating to the offering of the
Securities) be responsible for any amount in excess of the purchase discount or
commission applicable to the Securities purchased by such Initial Purchaser
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Initial Purchasers severally
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
of the Initial Purchasers on the other in connection with the statements or
omissions which resulted in such Losses, as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Initial Purchasers shall be deemed to be equal
to the total purchase discounts and commissions in each case set forth on the
cover of the Final Memorandum. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company on the one hand or the Initial
Purchasers on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Initial Purchasers agree that it
would not be just and equitable if contribution were determined by pro rata
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allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Initial Purchaser within the meaning of either the Securities Act or the
Exchange Act and each director, officer, employee and agent of an Initial
Purchaser shall have the same rights to contribution as such Initial Purchaser,
and each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act and each officer and director, employee and
agent of the Company shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this paragraph
(d).
9. Default by an Initial Purchaser. If any one or more Initial Purchasers
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 or their obligations under this
Purchase Agreement, the remaining Initial Purchasers shall be obligated
severally to take up and pay for (in the respective proportions which the
principal amount of Securities set forth opposite their names on Schedule I
hereto bears to the aggregate principal amount of Securities set forth opposite
the names of all the remaining Initial Purchasers) the Securities which the
defaulting Initial Purchaser or Initial Purchasers agreed but failed to
purchase; provided, however, that in the event that the aggregate principal
amount of Securities which the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Securities set forth on 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 nondefaulting
Initial Purchasers do not purchase all the Securities, this Agreement will
terminate without liability to any nondefaulting Initial Purchaser or the
Company. In the event of a default by any Initial Purchaser as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Final Memorandum or in any other documents or
arrangements may be effected. Nothing contained in this Purchase Agreement shall
relieve any defaulting Initial Purchaser of its liability, if any, to the
Company or any nondefaulting Initial Purchaser for damages occasioned by its
default hereunder.
10. Termination. This Purchase Agreement shall be subject to termination
in the absolute discretion of the Initial Purchasers, by notice given to the
Company prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in securities generally on the New York Stock
Exchange or the Nasdaq National Market shall have been suspended or limited or
minimum prices shall have been established on the New York Stock Exchange or the
Nasdaq National Market; (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or by European Union
authorities; or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States or a member of the European Union
of a national emergency or war or other calamity or crisis the effect of which
on financial markets is so material and adverse as to make it, in the judgment
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of the Representatives, impracticable or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final Memorandum.
11. Representations, Warranties and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Initial Purchasers set forth in or made
pursuant to this Purchase Agreement shall remain in full force and effect,
regardless of any investigation made by or on behalf of any Initial Purchaser or
any officer or director or controlling person of the Initial Purchasers or the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Purchase Agreement.
12. Notices. All communications hereunder shall be in writing and
effective only upon receipt and, if sent to the Representatives, shall be
mailed, delivered or telefaxed and confirmed to them care of Xxxxxxx Xxxxx
Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: General
Counsel; or, if sent to the Company, shall be mailed, delivered or telefaxed and
confirmed to it at Xxx Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, XX 00000-0000, Attention:
General Counsel.
13. Successors. This Purchase Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and, except as expressly set forth in Section 5(h) hereof, no
other person will have any right or obligation hereunder.
14. Applicable Law. This Purchase 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.
15. Counterparts. This Purchase Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
16. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. Definitions. The terms that follow, when used in this Purchase
Agreement, shall have the meanings indicated.
"Affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
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"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in the City of New York.
"Clearstream" shall mean Clearstream Banking, societe anonyme.
"Commission" shall mean the Securities and Exchange Commission.
"Euroclear" shall mean Euroclear Bank S.A./NV, as operator of the
Euroclear System.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Securities" shall mean the securities issued under the
Indenture in exchange for the Securities pursuant to the Registration
Rights Agreement.
"Execution Time" shall mean the date and time that this Purchase
Agreement is executed and delivered by the parties hereto.
"Regulation D" shall mean Regulation D under the Securities Act.
"Regulation S" shall mean Regulation S under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
[signature page follows]
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
Purchase Agreement and your acceptance shall represent a binding agreement
between the Company and the several Initial Purchasers.
Very truly yours,
XXXXXXX COMPANY
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Assistant Treasurer
The foregoing Purchase Agreement is hereby
confirmed and accepted as of the date
first above written.
XXXXXXX XXXXX XXXXXX INC.
XXXXX SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
By: XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
For themselves and the other several Initial
Purchasers named in Schedule I hereto
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SCHEDULE I
Principal Amount of Securities to be Purchased
------------------------------------------------------------------------
Two-Year Five-Year Ten-Year
Notes Notes Notes Debentures
----- ----- ----- ----------
Xxxxxxx Xxxxx Xxxxxx Inc................. $ 400,000,000 $ 400,000,000 $ 600,000,000 $ 440,000,000
Chase Securities Inc..................... 350,000,000 350,000,000 525,000,000 385,000,000
Banc of America Securities LLC........... 150,000,000 150,000,000 225,000,000 165,000,000
Barclays Capital Inc..................... 20,000,000 20,000,000 30,000,000 22,000,000
ABN AMRO Incorporated.................... 10,000,000 10,000,000 15,000,000 11,000,000
Banc One Capital Markets, Inc. .......... 10,000,000 10,000,000 15,000,000 11,000,000
BNP Paribas Securities Corp. ............ 10,000,000 10,000,000 15,000,000 11,000,000
Credit Lyonnais Securities (USA) Inc. ... 10,000,000 10,000,000 15,000,000 11,000,000
Deutsche Banc Xxxx. Xxxxx Inc. ......... 10,000,000 10,000,000 15,000,000 11,000,000
Mizuho International plc ................ 10,000,000 10,000,000 15,000,000 11,000,000
Scotia Capital (USA) Inc. ............... 10,000,000 10,000,000 15,000,000 11,000,000
-------------- -------------- -------------- --------------
Tokyo-Mitsubishi International plc ......
Total $1,000,000,000 $1,000,000,000 $1,500,000,000 $1,100,000,000
============== ============== ============== ==============
I-1
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EXHIBIT A
Selling Restrictions for Offers and Sales Outside of the United States
(1)(a) The Securities have not been and will not be registered under the
Securities Act and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except in accordance with Regulation
S under the Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act. Each Initial Purchaser represents and agrees
that, except as otherwise permitted under Section 4(a)(i) of the Purchase
Agreement to which this is an exhibit, it has offered and sold the Securities,
and will offer and sell the Securities (i) as part of their distribution at any
time and (ii) otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 903 of Regulation S
under the Securities Act. Accordingly, each Initial Purchaser represents and
agrees that neither it, its affiliates nor any persons acting on its or their
behalf has engaged or will engage in any directed selling efforts with respect
to the Securities, and it and they have complied and will comply with the
offering restrictions requirement of Regulation S. Each Initial Purchaser agrees
that, at or prior to the confirmation of a sale of Securities (other than a sale
pursuant to Section 4(a)(i) of the Purchase Agreement to which this is an
exhibit), it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Securities from it
during the distribution compliance 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 (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 distribution at any time or
(ii) otherwise until 40 days after the later of the
commencement of the offering and the March __, 2001,
except in either case in accordance with Regulation S or
Rule 144A under the Securities Act. Terms used above have
the meaning given to them by Regulation S.
(b) Each Initial Purchaser also represents and agrees that it has not
entered into and will not enter into any contractual arrangement with any
distributor with respect to the distribution of the Securities, except with its
Affiliates or with the prior written consent of the Company.
(c) Terms used in this section have the meanings given to them by
Regulation S.
(2) Each Initial Purchaser represents and agrees that (i) it has not
offered or sold and prior to the date six months after the date of issue of the
Securities will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United
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Kingdom within the meaning of the Public Offers of Securities Regulations 1995
or the Financial Services Act 1986 of the United Kingdom, (ii) it has complied,
and will comply, with all applicable provisions of the Public Offers of
Securities Regulations 1995 and the Financial Services Act 1986 with respect to
anything done by it 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 the United Kingdom any document received by it in
connection with the issuance of the Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or is a person to whom the
document may otherwise lawfully be issued or passed on.
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EXHIBIT B
March __, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxx Securities, Inc.
Banc of America Securities LLC
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxxxx Company
Ladies and Gentlemen:
We are issuing this letter in our capacity as special counsel for Xxxxxxx
Company, a Delaware corporation (the "Company"), in response to the requirement
in Section 6(a) of the Purchase Agreement, dated March 23, 2001 (the "Purchase
Agreement"), by and between the Company, on the one hand, and Xxxxxxx Xxxxx
Xxxxxx, Inc., Chase Securities, Inc., Banc of America Securities LLC and each of
the several other initial purchasers set forth in Schedule I thereto, on the
other hand (collectively, the "Initial Purchasers" and herein being called
"you"), and in connection with the issue and sale by the Company of
$4,600,000,000 in aggregate principal amount of its % Notes due, % Notes due,
% Notes due and % Debentures due (collectively, the "Securities"), as described
in the Purchase Agreement. Every term which is defined or given a special
meaning in the Purchase Agreement and which is not given a different meaning in
this letter has the same meaning whenever it is used in this letter as the
meaning it is given in the Purchase Agreement.
In connection with the preparation of this letter, we have among other
things read:
(a) the Final Memorandum;
(b) an executed original of the Purchase Agreement;
(c) an executed original of the Indenture;
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(d) executed certificates representing the Securities;
(e) an executed original of the Registration Rights Agreement;
(f) a certified copy of resolutions adopted by the Board of Directors of
the Company on February __, 2001; and
(g) copies of all certificates and other documents delivered today at the
closing of the purchase and sale of the Securities under the Purchase
Agreement.
The term "Transaction Documents" is used in this letter to collectively
refer to the Purchase Agreement, the Indenture, the Securities and the
Registration Rights Agreement.
Subject to the assumptions, qualifications and limitations which are
identified in this letter, we advise you that:
1. The Indenture is a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms; and the Indenture
complies as to form in all material respects with the requirements of the
Trust Indenture Act.
2. The Registration Rights Agreement is a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.
3. The Securities, assuming the due execution and delivery thereof by the
Company and payment therefor by the Initial Purchasers, are valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms; and the Exchange Securities, when executed and
delivered by the Company in exchange for the Securities, as contemplated by
the Registration Rights Agreement, will be valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms.
4. No registration under the Securities Act of the Securities is required in
connection with the offer or sale of the Securities to the Initial
Purchasers or the initial resale of such Securities by the Initial
Purchasers in the manner contemplated by the Purchase Agreement and the
Final Memorandum, and prior to the commencement of the Exchange Offer or
the effectiveness of the Shelf Registration Statement (as defined in the
Registration Rights Agreement), the Indenture is not required to be
qualified under the Trust Indenture Act, in each case assuming (i) the
accuracy of the representations and warranties in the Purchase Agreement
and (ii) the compliance with the covenants set forth or referred to in
Section 4 of the Purchase Agreement by the Initial Purchasers.
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5. The information in the Final Memorandum under the headings "Description of
Securities," "Exchange Offer; Registration Rights" and "United States
Federal Tax Considerations" to the extent that it summarizes laws,
governmental rules or regulations or documents referred to therein is
correct in all material respects.
6. The Company is not, and immediately after the sale of the Securities to the
Initial Purchasers and application of the net proceeds therefrom as
described in the Final Memorandum under the caption "Use of Proceeds" will
not be, an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
7. Neither the sale, issuance, execution or delivery of the Securities nor the
application of the net proceeds therefrom as described in the Final
Memorandum under the caption "Use of Proceeds" will contravene Section 7 of
the Exchange Act or Regulation T (12 C.F.R. Part 220), Regulation U (12
C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of
Governors of the Federal Reserve System.
ooooooooo
The purpose of our professional engagement was not to establish factual
matters, and preparation of the Final Memorandum involved many determinations of
a wholly or partially nonlegal character. We make no representation that we have
independently verified the accuracy, completeness or fairness of the Final
Memorandum or that the actions taken in connection with the preparation of the
Final Memorandum (including the actions described in the next paragraph) were
sufficient to cause the Final Memorandum to be accurate, complete or fair. We
are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the Final Memorandum except to the extent otherwise
explicitly indicated in numbered paragraph 5 above.
We can however confirm that we have participated in conferences with
representatives of the Company, representatives of the Initial Purchasers,
counsel for the Initial Purchasers and representatives of the independent
accountants for the Company during which disclosures in the Final Memorandum and
related matters were discussed. In addition, we have reviewed certain corporate
records furnished to us by the Company. We were not retained by the Company to
prepare the periodic reports incorporated by reference in the Final Memorandum,
and our knowledge about these materials is limited.
Based upon our participation in the conferences and our document review
identified in the preceding paragraph, our understanding of applicable law and
the experience we have gained in our practice thereunder and relying as to
matters of fact on statements of officers and other representatives of the
Company, we can, however, advise you that nothing has come to our attention that
has caused us to conclude that the Final Memorandum, at the date it bears or as
of the date of this letter, contained or
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contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
ooooooooo
Except for the activities described in the immediately preceding section of
this letter and as set forth below, we have not undertaken any investigation to
determine the facts upon which the advice in this letter is based.
We have assumed for purposes of this letter: each document we have reviewed
for purposes of this letter is accurate and complete, each such document that is
an original is authentic, each such document that is a copy conforms to an
authentic original, and all signatures on each such document are genuine; that
the Purchase Agreement and every other agreement we have examined for purposes
of this letter constitutes a valid and binding obligation of each party to that
document and that each such party has satisfied all legal requirements that are
applicable to such party to the extent necessary to entitle such party to
enforce such agreement (except that we make no such assumption with respect to
the Company); and that you have acted in good faith and without notice of any
fact which has caused you to reach any conclusion contrary to any of the advice
provided in this letter. We have also made other assumptions which we believe to
be appropriate for purposes of this letter.
In preparing this letter we have relied without independent verification
upon: (i) information contained in certificates obtained from governmental
authorities; (ii) factual information represented to be true in the Purchase
Agreement and other documents specifically identified at the beginning of this
letter as having been read by us; (iii) factual information provided to us by
the Company or its representatives; and (iv) factual information we have
obtained from such other sources as we have deemed reasonable. We have assumed
that there has been no relevant change or development between the dates as of
which the information cited in the preceding sentence was given and the date of
this letter and that the information upon which we have relied is accurate and
does not omit disclosures necessary to prevent such information from being
misleading.
We confirm that we do not have knowledge that has caused us to conclude
that our reliance and assumptions cited in the two immediately preceding
paragraphs are unwarranted. Whenever this letter provides advice about (or based
upon) our knowledge of any particular information or about any information which
has or has not come to our attention such advice is based entirely on the actual
awareness at the time this letter is delivered on the date it bears by the
lawyers with Xxxxxxxx & Xxxxx at that time who spent substantial time
representing the Company in connection with the offering effected pursuant to
the Final Memorandum and by partners with Xxxxxxxx & Xxxxx at the time who have
principal responsibility for representing the Company on other matters.
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In rendering the opinions in paragraphs 1, 2 and 3 above (the
"enforceability opinions"), we have, with your permission, relied upon the
opinions of Xxxx X. Xxxxxxx, Vice President and Deputy General Counsel of the
Company, set forth in paragraphs 5, 6 and 7 of his letter to you, dated as of
the date hereof. Each enforceability opinion is subject to: (i) the effect of
bankruptcy, insolvency, fraudulent conveyance and other similar laws and
judicially developed doctrines in this area such as substantive consolidation
and equitable subordination; (ii) the effect of general principles of equity;
and (iii) other commonly recognized statutory and judicial constraints on
enforceability including statutes of limitations. "General principles of equity"
include but are not limited to: principles limiting the availability of specific
performance and injunctive relief; principles which limit the availability of a
remedy under certain circumstances where another remedy has been elected;
principles requiring reasonableness, good faith and fair dealing in the
performance and enforcement of an agreement by the party seeking enforcement;
principles which may permit a party to cure a material failure to perform its
obligations; and principles affording equitable defenses such as waiver, laches
and estoppel. It is possible that terms in a particular contract covered by our
enforceability opinion may not prove enforceable for reasons other than those
explicitly cited in this letter should an actual enforcement action be brought,
but (subject to all the exceptions, qualifications, exclusions and other
limitations contained in this letter) such unenforceability would not in our
opinion prevent the party entitled to enforce that contract from realizing the
principal benefits purported to be provided to that party by the terms in that
contract which are covered by our enforceability opinion.
Our advice on every legal issue addressed in this letter is based
exclusively on the internal law of the State of New York, the General
Corporation Law of the State of Delaware or the federal law of the United
States, and represents our opinion as to how that issue would be resolved were
it to be considered by the highest court in the jurisdiction which enacted such
law.
None of the opinions or other advice contained in this letter considers or
covers: (i) any state securities or Blue Sky laws or regulations, (ii) any
financial statements or supporting schedules (or any notes to any such
statements or schedules) or other financial or statistical information set forth
or incorporated by reference in (or omitted from) the Final Memorandum or (iii)
any rules and regulations of the National Association of Securities Dealers,
Inc. relating to the compensation of underwriters. In addition, none of the
opinions or other advice contained in the letter covers or otherwise addresses
any of the following types of provisions which may be contained in the
Transaction Documents: (i) provisions mandating contribution towards judgments
or settlements among various parties; (ii) waivers of benefits and rights to the
extent they cannot be waived under applicable law; (iii) provisions providing
for liquidated damages, late charges and prepayment charges, in each case if
deemed to constitute penalties; (iv) provisions which might require
indemnification or contribution in violation of general principles of equity or
public policy, including, without limitation, indemnification or contribution
obligations which arise out of the failure to comply with applicable state or
federal securities laws; or (v) requirements in the Transaction Documents
specifying that provisions thereof may only be waived in writing (these
provisions may not be valid, binding or enforceable to the extent that an oral
agreement or an implied agreement by trade practice or course of conduct has
been created modifying any provision of such documents). This letter does not
cover any other laws, statutes,
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governmental rules or regulations or decisions which in our experience are not
usually considered for or covered by opinions like those contained in this
letter or are not generally applicable to transactions of the kind covered by
the Purchase Agreement.
This letter speaks as of the time of its delivery on the date it bears. We
do not assume any obligation to provide you with any subsequent opinion or
advice by reason of any fact about which we did not have knowledge at that time,
by reason of any change subsequent to that time in any law other governmental
requirement or interpretation thereof covered by any of our opinions or advice,
or for any other reason.
This letter may be relied upon by the Initial Purchasers only for the
purpose served by the provision in the Purchase Agreement cited in the initial
paragraph of this letter in response to which it has been delivered. Without our
written consent: (i) no person other than the Initial Purchasers may rely on
this letter for any purpose; (ii) this letter may not be cited or quoted in any
financial statement, offering memorandum, private placement memorandum or other
similar document; (iii) this letter may not be cited or quoted in any other
document or communication which might encourage reliance upon this letter by any
person or for any purpose excluded by the restrictions in this paragraph; and
(iv) copies of this letter may not be furnished to anyone for purposes of
encouraging such reliance.
Very truly yours,
XXXXXXXX & XXXXX
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EXHIBIT C
[Xxxxxxx Company Letterhead]
March __, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxx Securities, Inc.
Banc of America Securities LLC
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxxxx Company
Ladies and Gentlemen:
I am issuing this letter in my capacity as Vice President and Deputy
General Counsel of Xxxxxxx Company, a Delaware corporation (the "Company"), in
response to the requirement in Section 6(b) of the Purchase Agreement, dated
March 23, 2001 (the "Purchase Agreement"), by and among the Company and Xxxxxxx
Xxxxx Xxxxxx Inc., Xxxxx Securities, Inc., Banc of America Securities LLC and
the several other initial purchasers named in Schedule I thereto, and in
connection with the issue and sale by the Company of $4,600,000,000 in aggregate
principal amount of its % Notes due, % Notes due, % Notes due, and %
Debentures due (collectively, the "Securities"), as described in the Purchase
Agreement. Every term which is defined or given a special meaning in the
Purchase Agreement and which is not given a different meaning in this letter has
the same meaning whenever it is used in this letter as the meaning it is given
in the Purchase Agreement.
In connection with the preparation of this letter, I have among other
things read:
(h) the Final Memorandum;
(i) an executed copy of the Purchase Agreement;
(j) an executed copy of the Indenture;
(k) an executed copy of the Registration Rights Agreement;
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(l) executed certificates representing the Securities;
(m) certified copies of resolutions adopted by the Company's Board of
Directors on February __, 2001; and
(n) copies of all certificates and other documents delivered today at the
closing of the purchase and sale of the Securities under the Purchase
Agreement.
The Purchase Agreement, the Indenture, the Securities and the Registration
Rights Agreement are sometimes collectively referred to herein as the
"Transaction Agreements."
Subject to the assumptions, qualifications and limitations which are
identified in this letter, I advise you that:
1. The Company and each of the Significant Subsidiaries are existing and
in good standing under the general corporation laws of their
respective jurisdictions of incorporation and are qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property
or the conduct of their respective businesses requires such
qualification (in each case to the extent such jurisdictions recognize
such concepts), except those in which the failure to be so existing or
qualified would not reasonably be expected to have a Material Averse
Effect, and have the corporate power necessary to own and lease their
respective properties and to conduct their respective businesses as
described in the Final Memorandum.
2. All of the outstanding shares of capital stock of each Significant
Subsidiary have been duly authorized and issued, are fully paid and
non-assessable and are owned, directly or indirectly by the Company,
to my knowledge, free and clear of all liens, claims and encumbrances,
except for (i) a lien on the stock of Xxxxxxx (Deutschland) GmbH and
(ii) such liens, claims and encumbrances that are immaterial to the
Company and its Subsidiaries taken as a whole.
3. I have no knowledge of any legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject
which would individually or in the aggregate have a Material Adverse
Effect or which would materially and adversely affect the consummation
of the transactions contemplated under the Purchase Agreement, the
Registration Rights Agreement or the Indenture or the performance by
the Company of its obligations thereunder; and I have no knowledge
that any such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
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4. The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
5. The Indenture has been duly authorized, executed and delivered by the
Company.
6. The Registration Rights Agreement has been duly authorized, executed
and delivered by the Company.
7. The Securities are in the form established pursuant to the Indenture,
have been duly authorized, executed and delivered by the Company, and
are entitled to the benefits of the Indenture; the Exchange Securities
have been duly authorized by the Company, and when issued and
delivered by the Company in exchange for the Securities as
contemplated by the Registration Rights Agreement, will be duly
executed and delivered and will be entitled to the benefits of the
Indenture.
8. The execution and delivery of the Transaction Agreements by the
Company and the consummation of the transactions contemplated thereby
(including the sale by the Company of the Securities to you in
accordance with the Purchase Agreement) do not (i) violate the charter
or by-laws of the Company, (ii) constitute a material violation by the
Company of any provision of any law or statute or any order, rule or
regulation of any court or governmental agency or body applicable to
the Company or any of the Significant Subsidiaries or any of their
properties (except that I express no opinion in this paragraph as to
compliance with any disclosure requirement or any prohibition against
fraud or misrepresentation) or (iii) to my actual knowledge, conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of a lien, charge or encumbrance upon any of
the property or assets of the Company or any Significant Subsidiaries
pursuant to the terms of, any indenture, mortgage, deed of trust, loan
or credit agreement or other agreement or instrument to which the
Company or any Significant Subsidiary is a party or by which the
Company or any Significant Subsidiary is bound or to which any
property or assets of the Company or any Significant Subsidiary is
subject, except for in the cases of items (ii) and (iii) any such
violation, breach or default which would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect or
to materially impair the ability of the Company to perform its
obligations under the Transaction Agreements.
9. The Company was not required to obtain any consent, approval,
authorization or order of, or make any registration, filing or
qualification with, any court or governmental agency or body for the
issuance, delivery and sale of the Securities or the Exchange
Securities under the Transaction Agreements or the consummation of the
other transactions contemplated by the Indenture, the Purchase
Agreement or the Registration Rights Agreement, except
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such as may be required under the Securities Act, the Exchange Act,
the Trust Indenture Act and the security or blue sky laws of the
various states (and the rules and regulations thereunder) or of any
jurisdiction outside the United States, as to which I express no
opinion in this paragraph.
ooooooooo
I, or members of my staff, have examined various documents, as indicated
above, and participated in conferences with your representatives, your counsel
and representatives of the independent accountants for the Company during which
disclosures in the Final Memorandum and related matters were discussed. However,
I am not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the Final Memorandum and I make no representation
that the actions taken in connection with the preparation of the Final
Memorandum (including the actions described in the next paragraph) were
sufficient to cause the Final Memorandum to be accurate, complete or fair.
Subject to the foregoing, I can, however, advise you that nothing has come
to my attention that has caused me to conclude that (x) the Final Memorandum, as
of the date it bears or as of the date of this letter, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading or (y) the
documents incorporated by reference in the Final Memorandum, as of their
respective dates of filing, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. I can also advise you that the documents incorporated by reference
in the Final Memorandum (other than the financial statements and related
schedules and other financial data included or incorporated by reference therein
or omitted therefrom, as to which I express no opinion), appear on their face to
be responsive as to form in all material respects to the applicable requirements
of the Exchange Act, and the rules and regulations thereunder; provided, that in
making this statement in this sentence, I am not expressing any opinion as to
the adequacy of any disclosure contained in the Final Memorandum or as to
compliance with any prohibition against fraud or misrepresentation.
ooooooooo
I have assumed for purposes of this letter: each document I have reviewed
for purposes of this letter is accurate and complete, each such document that is
an original is authentic, each such document that is a copy conforms to an
authentic original, and all signatures on each such document are genuine; that
the Purchase Agreement and every other agreement I have examined for purposes of
this letter constitutes a valid and binding obligation of each party to that
document and that each such party has satisfied all legal requirements that are
applicable to such party to the extent necessary to entitle such party to
enforce such agreement (except that I make no such assumption with respect to
the Company); and that you have acted
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in good faith and without notice of any fact which has caused you to reach any
conclusion contrary to any of the advice provided in this letter.
In preparing this letter I have relied without independent verification
upon: (i) factual information represented to be true in the Purchase Agreement
and other documents specifically identified at the beginning of this letter as
having been read by me; (ii) factual information provided to me by the Company
or its representatives; and (iii) factual information I have obtained from such
other sources as I have deemed reasonable. I have assumed that there has been no
relevant change or development between the time as of which the information
cited in the preceding sentence was provided or obtained and the date of this
letter, which information was provided to me or obtained by me at such times as
were reasonable for purposes of my rendering this opinion on the date hereof,
and that the information upon which I have relied is accurate and does not omit
disclosures necessary to prevent such information from being misleading. For
purposes of numbered paragraph 1, I have relied exclusively upon certificates
issued by governmental authorities in the relevant jurisdictions and such
opinion is not intended to provide any conclusion or assurance beyond that
conveyed by those certificates.
I confirm that I do not have knowledge that has caused me to conclude that
my reliance and assumptions cited in the two immediately preceding paragraphs
are unwarranted. Whenever this letter provides advice about (or based upon) my
knowledge of any particular information or about any information which has or
has not come to my attention such advice is based entirely on my actual
awareness and that of the members of my staff referred to above at the time this
letter is delivered on the date it bears.
I am admitted to practice in the State of Illinois and my advice on every
legal issue addressed in this letter is based exclusively on the laws of the
State of Illinois, the General Corporation Law of the State of Delaware, or the
federal law of the United States, and represents my opinion as to how that issue
would be resolved were it to be considered by the highest court in the
jurisdiction which enacted such law. None of the opinions or other advice
contained in this letter considers or covers: (i) any state securities (or "blue
sky") laws or regulations, (ii) any financial statements or supporting schedules
(or any notes to any such statements or schedules) or other financial
information set forth or incorporated by reference in (or omitted from) the
Final Memorandum or (iii) any rules and regulations of the National Association
of Securities Dealers, Inc. relating to the compensation of underwriters. This
letter does not cover any other laws, statutes, governmental rules or
regulations or decisions which in my experience are not usually considered for
or covered by opinions like those contained in this letter and which are not
generally applicable to transactions of the kind covered by the Purchase
Agreement.
This letter speaks as of the time of its delivery on the date it bears. I
do not assume any obligation to provide you with any subsequent opinion or
advice by reason of any fact about which I did not have knowledge at that time,
by reason of any change subsequent to that time in any law other governmental
requirement or interpretation thereof covered by any of my opinions or advice,
or for any other reason.
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This letter may be relied upon by you only for the purpose served by the
provision in the Purchase Agreement cited in the initial paragraph of this
letter in response to which it has been delivered. Without my written consent:
(i) no person other than you may rely on this letter for any purpose; (ii) this
letter may not be cited or quoted in any financial statement, prospectus,
private placement memorandum or other similar document; (iii) this letter may
not be cited or quoted in any other document or communication which might
encourage reliance upon this letter by any person or for any purpose excluded by
the restrictions in this paragraph; and (iv) copies of this letter may not be
furnished to anyone for purposes of encouraging such reliance. Notwithstanding
the foregoing, Xxxxxxxx & Xxxxx may rely upon the opinions set forth in
paragraphs 5, 6 and 7 above for purposes of rendering its opinion to you
pursuant to Section 6(a) of the Purchase Agreement to the same extent as if
Xxxxxxxx & Xxxxx were an addressee of this letter.
Very truly yours,
Xxxx X. Xxxxxxx
Vice President and Deputy General Counsel
Xxxxxxx Company
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