EXHIBIT 2.1
EXECUTION COPY
Nucor Corporation
$350,000,000
4.875% Notes due 2012
Purchase Agreement
September 26, 0000
Xxxx xx Xxxxxxx Securities LLC
Wachovia Securities, Inc.
Banc One Capital Markets, Inc.
CIBC World Markets Corp.
BNY Capital Markets, Inc.
c/o Wachovia Securities, Inc.
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Nucor Corporation, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated in this Purchase Agreement (this
"Agreement" or the "Purchase Agreement"), to issue and sell to the Purchasers
named in Schedule I hereto (the "Purchasers"), acting severally and not jointly,
for which Banc of America Securities LLC and Wachovia Securities, Inc. are
acting as representatives (the "Representatives"), the respective amounts set
forth on Schedule I of an aggregate of $350,000,000 principal amount of the
Company's 4.875% Notes due 2012 (the "Notes"). The Notes will be issued pursuant
to an indenture dated as of January 12, 1999 (the "Indenture"), as it may be
amended by any indenture supplemental thereto relating to the offering of the
Notes, between the Company and The Bank of New York (or its successor), as
Trustee (the "Trustee").
Holders of the Notes will have the registration rights set forth in
that certain Exchange and Registration Rights Agreement, to be entered into by
the Company and the Purchasers at the Time of Delivery (as defined below in
Section 4) (the "Exchange and Registration Rights Agreement"), pursuant to which
the Company will offer to exchange a like principal amount of another series of
debt securities of the Company with terms substantially identical to the Notes,
except with respect to certain terms such as transfer restrictions (the
"Exchange Notes"), for all outstanding Notes. This Agreement, the Exchange and
Registration Rights Agreement, the
Indenture, the Notes and the Exchange Notes are herein collectively referred to
as the "Transaction Documents," and the transactions contemplated hereby and
thereby are herein collectively referred to as the "Transactions."
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the Purchasers that:
(a) A preliminary offering memorandum, dated September 26,
2002 (the "Preliminary Offering Memorandum"), and an offering
memorandum, dated September 26, 2002 (the "Offering Memorandum"), have
been prepared in connection with the offering of the Notes. Any
reference to the Preliminary Offering Memorandum or the Offering
Memorandum herein shall be deemed to refer to and include the Company's
most recent Annual Report on Form 10-K (including any amendments to
that report, the "Annual Report") and all subsequent documents filed
with the United States Securities and Exchange Commission (the
"Commission") pursuant to Section 13(a), 13(c) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
prior to the date of the Preliminary Offering Memorandum or the
Offering Memorandum, as the case may be, and any reference to the
Preliminary Offering Memorandum or the Offering Memorandum, as the case
may be, as amended or supplemented as of any specified date, shall be
deemed to include (i) any documents filed with the Commission pursuant
to Section 13(a), 13(c) or 15(d) of the Exchange Act after the date of
the Preliminary Offering Memorandum or the Offering Memorandum, as the
case may be, and prior to such specified date and (ii) any Additional
Issuer Information (as defined in Section 5(f)) furnished by the
Company, in each case prior to the completion of the distribution of
the Notes; and all such documents filed under the Exchange Act and so
deemed to be included in the Preliminary Offering Memorandum or the
Offering Memorandum, as the case may be, or any amendment or supplement
thereto are hereinafter called the "Exchange Act Reports." The Exchange
Act Reports, when they were or are filed with the Commission, conformed
or will conform, as the case may be, in all material respects to the
applicable requirements of the Exchange Act and the applicable rules
and regulations of the Commission thereunder. The Preliminary Offering
Memorandum or the Offering Memorandum, as amended or supplemented, and
the Exchange Act Reports, when read together with the other information
in the Preliminary Offering Memorandum or Offering Memorandum, as the
case may be, did not and will not, as of the respective dates of the
Preliminary Offering Memorandum or the Offering Memorandum, as the case
may be, and, with respect to the Exchange Act Reports and the Offering
Memorandum, at the Time of Delivery, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a Purchaser through the
Representatives expressly for use therein;
(b) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Offering Memorandum any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental
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action, order or decree, otherwise than as set forth or contemplated in
the Offering Memorandum or which would not have a material adverse
effect on any of (i) the consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries
taken as a whole, or (ii) the Transactions (a "Material Adverse
Effect"); and, since the respective dates as of which information is
given in the Offering Memorandum, there has not been any material
change in the capital stock (other than issuances of capital stock
pursuant to the Company's option or other incentive plans) or long-term
debt in an amount in excess of $20 million (excluding $86 million in
debt assumed in connection with the acquisition of substantially all
the assets of Trico Steel Company, LLC) of the Company or any of its
Significant Subsidiaries (as defined below in Section 1(d)) other than
as set forth or contemplated in the Offering Memorandum or any material
adverse change, or any development which the Company reasonably
believes involves a prospective material adverse change, in or
affecting the general affairs, management, consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Offering Memorandum;
(c) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Offering
Memorandum or which would not have a Material Adverse Effect; and any
real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as would not have a Material Adverse
Effect;
(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 power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering
Memorandum and to enter into and perform its obligations under the
Transaction Documents and consummate the transactions contemplated
thereby, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, except where the
failure to be so qualified or in such good standing would not,
individually or in the aggregate, have a Material Adverse Effect; each
subsidiary of the Company, as listed on Schedule II hereto (each, a
"Significant Subsidiary"), has been duly organized, is validly existing
and is in good standing under the laws of its jurisdiction of
organization, with power and authority (corporate, partnership and
other) to own its properties and conduct its business as described in
the Offering Memorandum, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except where the failure to be so qualified or in such
good standing would not, individually or in the aggregate, have a
Material Adverse Effect;
(e) The Company has an authorized capitalization as set forth
in the Offering Memorandum, and 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; and all of
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the issued shares of capital stock or other ownership interests of each
of its Significant Subsidiaries have been duly and validly authorized
(or created) and issued and, in the case of shares of capital stock,
are fully paid and non-assessable and (except for directors' qualifying
shares) are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, or adverse claims;
(f) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company;
(g) The Notes have been duly authorized and, at the Time of
Delivery (as defined in Section 4 hereof), when duly authenticated by
the Trustee in the manner provided for in the Indenture and delivered
by or on behalf of the Company and paid for by the Purchasers pursuant
to this Agreement, will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the Indenture,
enforceable against the Company in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; the Indenture has been duly authorized and executed and at
the Time of Delivery for the Notes will, and any indenture supplemental
thereto relating to the offering of the Notes will have been duly
authorized and executed and will, constitute a valid and legally
binding instrument of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and at the Time of Delivery
the Notes and the Indenture will conform in all material respects to
the descriptions thereof in the Offering Memorandum and will be in
substantially the form previously provided to you;
(h) The Exchange and Registration Rights Agreement has been
duly authorized, and at the Time of Delivery will have been duly
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Representatives on behalf of the
Purchasers, the Exchange and Registration Rights Agreement will
constitute a valid and binding agreement of the Company; and the
Exchange and Registration Rights Agreement will conform in all material
respects to the description thereof in the Offering Memorandum and will
be in substantially the form previously delivered to you;
(i) The Exchange Notes have been duly authorized and, when
executed, duly authenticated by the Trustee, issued and delivered in
accordance with the Indenture and the Exchange and Registration Rights
Agreement, will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, enforceable
against the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
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(j) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale
of the Notes) will violate or result in a violation of Section 7 of the
Exchange Act, or any regulation promulgated thereunder, including,
without limitation, Regulations T, U, and X of the Board of Governors
of the Federal Reserve System;
(k) Prior to the date hereof, neither the Company nor any of
its affiliates has taken any action which is designed to or which has
constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the
Company in connection with the offering of the Notes;
(l) The issue and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes and the other
Transaction Documents, and the consummation of the Transactions, will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries
is subject, except for any such conflicts, breaches, violations or
defaults that would not, individually or in the aggregate, have a
Material Adverse Effect, nor will such action result in any violation
of the provisions of the Certificate of Incorporation or By-laws of the
Company, or any law or statute, or any order known to the Company, or
any rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any
of their properties, other than violations which would not individually
or in the aggregate have a Material Adverse Effect; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
issue and sale of the Notes or the consummation by the Company of any
of the Transactions, except (i) for the filing of a registration
statement by the Company with the Commission pursuant to the Securities
Act of 1933, as amended (the "Act") and (ii) the qualification of the
Indenture under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), in connection with the Exchange and Registration
Rights Agreement and such consents, approvals, authorizations,
registrations or qualifications as have already been or will have been
prior to the Time of Delivery obtained under the Act and the Trust
Indenture Act or as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Notes by
the Purchasers;
(m) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws (or, if other
than a corporation, similar governing documents) or in default in the
performance or observance of any obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, or any law or statute,
or any order known to the Company, or rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties, except for such
violations or defaults that would not, individually or in the
aggregate, have a Material Adverse Effect;
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(n) Other than as set forth in the Offering Memorandum, there
are no 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 the Company
reasonably believes would, individually or in the aggregate, have a
Material Adverse Effect and, to the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(o) When the Notes are issued and delivered pursuant to this
Agreement, the Notes will be eligible for resale pursuant to Rule 144A
under the Act and will not be of the same class (within the meaning of
Rule 144A under the Act) as securities of the Company which are listed
on a national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation
system;
(p) The Company is subject to Section 13 or 15(d) of the
Exchange Act;
(q) The Company is not, and after giving effect to the
offering and sale of the Notes will not be, an "investment company," as
such term is defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(r) None of the Company, any affiliate of the Company or any
person acting on its or their behalf (other than the Purchasers, as to
whom the Company makes no representation) has offered or sold the Notes
(i) by means of any general solicitation or general advertising within
the meaning of Rule 502(c) under the Act or (ii), with respect to Notes
sold outside the United States to non-U.S. persons (as defined in Rule
902 under the Act), by means of any directed selling efforts within the
meaning of Rule 902 of Regulation S under the Act, and the Company, any
affiliate of the Company and any person acting on its or their behalf
(other than the Purchasers, as to whom the Company makes no
representation) has complied with and will implement the "offering
restrictions" within the meaning of such Rule 902;
(s) Assuming the accuracy of the representations and
agreements of each of the Purchasers contained in Section 3 hereof, no
registration of the Notes under the Act, and no qualification of an
indenture under the Trust Indenture Act with respect thereto, is
required for the offer, sale and initial resale of the Notes by the
Purchasers in the manner contemplated by this Agreement;
(t) Within the preceding six months, except in connection with
pollution control, industrial revenue, private activity or similar
bonds or other securities issued by a governmental authority on behalf
of the Company or any of its subsidiaries, neither the Company nor any
other person acting on behalf of the Company has offered or sold to any
person any Notes, or any securities of the same or a similar class as
the Notes, other than Notes offered or sold to the Purchasers
hereunder. The Company will take reasonable precautions designed to
insure that any offer or sale, direct or indirect, in the United States
or to any U.S. person (as defined in Rule 902 of Regulation S under the
Act) of any Notes or any such substantially similar security issued by
the Company, within six months subsequent to the date on which the
distribution of the Notes has been completed (as notified to the
Company by the Representatives), is made under
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restrictions and other circumstances reasonably designed not to affect
the status of the offer and sale of the Notes in the United States and
to U.S. persons contemplated by this Agreement as transactions exempt
from the registration provisions of the Act;
(u) PricewaterhouseCoopers LLP, who has certified certain
financial statements of the Company and its subsidiaries (including
without limitation the financial statements contained or incorporated
by reference into the Offering Memorandum), are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(v) The historical financial statements, together with related
schedules and notes included or incorporated by reference in the
Offering Memorandum, present fairly, in all material respects, the
consolidated financial position, results of operations and cash flows
of the Company and its subsidiaries on the basis stated in the Offering
Memorandum at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have
been prepared in accordance with accounting principles generally
accepted in the United States consistently applied throughout the
periods involved, except as disclosed therein; and the other financial
and statistical information and data set forth in the Offering
Memorandum (and any amendment or supplement thereto) are, in all
material respects, accurately presented and prepared on a basis
consistent with such financial statements and the books and records of
the Company;
(w) The industry, statistical and market-related data included
in the Offering Memorandum, to the Company's knowledge, are true and
accurate in all material respects and are based on or derived from
sources that the Company believes to be reliable and accurate;
(x) Neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), any provisions of the Employee Retirement
Income Security Act of 1974, as amended, or any provisions of the
Foreign Corrupt Practices Act or the rules and regulations promulgated
thereunder, except for such violations which, individually or in the
aggregate, would not have a Material Adverse Effect;
(y) In the ordinary course of business, the Company and its
subsidiaries conduct periodic reviews of the effect of Environmental
Laws on their assets and operations, and, on the basis of such reviews,
the Company has concluded that there are no costs or liabilities
associated with Environmental Laws (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any Authorization
(as defined below in Section 1(aa)), any related constraints on
operating activities and any potential liabilities to third parties)
which would, individually or in the aggregate, have a Material Adverse
Effect;
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(z) There is no claim, cause of action, investigation or
notice by any person or entity alleging potential liability (including,
without limitation, alleged or potential liability or investigatory
costs, cleanup costs, governmental response costs, natural resource
damages, property damages, personal injuries or penalties) of the
Company or any of its subsidiaries arising out of, based on or
resulting from (A) the presence or release into the environment of any
Hazardous Material (as defined below in this paragraph) at any
location, whether or not owned by the Company or any of its
subsidiaries, as the case may be, or (B) any violation or alleged
violation of any Environmental Law, which, in either case, would,
individually or in the aggregate, have a Material Adverse Effect. The
term "Hazardous Material" means (i) any "hazardous substance" as
defined by the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, (ii) any "hazardous waste" as
defined by the Resource Conservation and Recovery Act, as amended,
(iii) any petroleum or petroleum product, (iv) any polychlorinated
biphenyl, and (v) any pollutant or contaminant or hazardous dangerous
or toxic chemical, material, waste or substance regulated under or
within the meaning of any other law relating to protection of human
health or the environment or imposing liability or standards of conduct
concerning any such chemical material, waste or substance;
(aa) Each of the Company and its subsidiaries has such
permits, licenses, consents, exemptions, franchises, authorizations and
other approvals (each, an "Authorization") of, and has made all filings
with and notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals as are
necessary to own, lease, license and operate its respective properties
and to conduct its business, except where the failure to have any such
Authorization or to make any such filing or notice would not,
individually or in the aggregate, have a Material Adverse Effect. Each
such Authorization is valid and in full force and effect and each of
the Company and its subsidiaries is in compliance with all the terms
and conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect
thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which
allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any
other impairment of the rights of the holder of any such Authorization;
except in each case where such failure to be valid and in full force
and effect or to be in compliance or the occurrence of any such event
would not, individually or in the aggregate, have a Material Adverse
Effect;
(bb) There are no existing or, to the knowledge of the
Company, imminent labor disputes or disturbances with employees of the
Company or any of its subsidiaries which are likely, individually or in
the aggregate, to have a Material Adverse Effect;
(cc) The Company and each of its subsidiaries are insured by
insurers of nationally recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in
the businesses in which they are engaged; and neither the Company nor
any of its subsidiaries has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage
expires or to
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obtain similar coverage from similar insurers at a cost that would not
have a Material Adverse Effect; and
(dd) All material tax returns required to be filed by the Company
and each of its subsidiaries in any jurisdiction have been filed, other
than those filings being contested in good faith, and all such returns
were true, correct and complete in all material respects, and all
material taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges required to be paid by the Company
or any of its subsidiaries have been paid, other than those being
contested in good faith by appropriate proceedings and for which
adequate reserves have been provided.
2. Purchase and Sale of the Notes. Subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to each of the
Purchasers, and each of the Purchasers agrees, severally and not jointly, to
purchase from the Company, at a purchase price of 99.295% of the principal
amount of the Notes, plus accrued interest, if any, from October 1, 2002 to the
Time of Delivery hereunder, the principal amount of Notes set forth opposite the
name of such Purchaser in Schedule I hereto.
3. Representations, Warranties and Covenants of the Purchasers. Upon
the authorization by you of the release of the Notes, the several Purchasers
propose to offer the Notes for sale upon the terms and conditions set forth in
this Agreement and the Offering Memorandum and each Purchaser hereby, severally
and not jointly, represents and warrants to, and agrees with the Company that:
(a) It will solicit offers only from, and offer and sell the Notes
only (i) to persons who it reasonably believes are "qualified
institutional buyers" ("QIBs") within the meaning of Rule 144A under
the Act in transactions meeting the requirements of Rule 144A, (ii) to
institutions which it reasonably believes are "accredited investors"
("Institutional Accredited Investors") within the meaning of Rule 501
under the Act or, (iii) upon the terms and conditions set forth in
Annex I to this Agreement, in each case in accordance with the
provisions set forth herein and in the Offering Memorandum;
(b) It is a QIB and an Institutional Accredited Investor; and
(c) It will not solicit offers for, or offer or sell, the Notes by
any form of general solicitation or general advertising, including but
not limited to the methods described in Rule 502(c) under the Act.
4. Form and Delivery of the Notes; Closing. The Notes to be purchased
by each Purchaser hereunder will be represented by one or more definitive global
notes in book-entry form which will be deposited by or on behalf of the Company
with The Depository Trust Company ("DTC") or its designated custodian. The
Company will deliver the Notes to the Representatives for the account of each
Purchaser, against payment by or on behalf of such Purchaser of the purchase
price therefor by wire transfer, payable to the order of the Company in
immediately available funds, by causing DTC to credit the Notes to the account
of the Representatives at DTC. The Company will cause the certificates
representing the Notes to be made available to the Representatives for checking
at least twenty-four hours prior to the Time
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of Delivery (as defined below) at the office of DTC or its designated custodian
(the "Designated Office"). The time and date of such delivery and payment shall
be 10:00 a.m., Eastern time, on October 1, 2002 or such other time and date as
the Representatives and the Company may agree upon in writing. Such time and
date are herein called the "Time of Delivery". Notes initially sold to
Institutional Accredited Investors who are not QIBs will be issued in
certificated form without interest coupons, registered in the name of the
holder.
(a) The documents to be delivered at the Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof,
including the cross-receipt for the Notes and any additional documents
requested by the Purchasers pursuant to Section 7(h) hereof, will be
delivered at the Time of Delivery at the offices of Xxxxx & Xxx Xxxxx
PLLC, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000 (the "Closing Location"), and the Notes will be delivered at
the Designated Office, all at the Time of Delivery. A meeting will be
held at the Closing Location on the Business Day (as defined below)
immediately preceding the Time of Delivery, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in Charlotte, North Carolina or New York, New York
are generally authorized or obligated by law or executive order to
close.
5. Covenants of the Company. The Company covenants and agrees
with each of the Purchasers:
(a) To prepare the Offering Memorandum in a form approved by
you; to make no amendment or any supplement to the Offering Memorandum
which shall be disapproved by you promptly after reasonable notice
thereof; and to furnish you with copies thereof not later than the
second business day following the date of this Agreement;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Notes for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Notes, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish without charge the Purchasers with copies of
the Offering Memorandum and each amendment or supplement thereto, in
such quantities as you may from time to time reasonably request, and
if, at any time prior to the completion of the initial placement of the
Notes, any event shall have occurred as a result of which the Offering
Memorandum as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Offering Memorandum
is delivered, not misleading, or, if for any other reason
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it shall be necessary or desirable during such same period to amend or
supplement the Offering Memorandum, to notify you and upon your request
to prepare and furnish without charge to each Purchaser and to any
dealer in securities as many copies as you may from time to time
reasonably request of an amended Offering Memorandum or a supplement to
the Offering Memorandum which will correct such statement or omission
or effect such compliance;
(d) During the period beginning from the date hereof and
continuing until the date six months after the Time of Delivery,
neither it, nor any of its subsidiaries, or other affiliates over which
it exercises management or voting control, nor any person acting on its
behalf will, without the prior written consent of the Representatives,
directly or indirectly offer, sell, contract to sell or otherwise
dispose of any securities of the same class as the Notes or any of its
securities that are convertible into or exchangeable for securities of
the same class as the Notes, other than the Exchange Notes;
(e) Not to be or become, at any time prior to the expiration
of three years after the Time of Delivery, an open-end investment
company, unit investment trust, closed-end investment company or
face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act;
(f) At any time when the Company is not subject to Section 13
or 15(d) of the Exchange Act, for the benefit of holders from time to
time of Notes, to furnish at its expense, upon request, to holders of
Notes and prospective purchasers of securities information (the
"Additional Issuer Information") satisfying the requirements of
subsection (d)(4)(i) of Rule 144A under the Act;
(g) To use its best efforts to cause the Notes to be eligible
for the PORTAL trading system of the National Association of Securities
Dealers, Inc.;
(h) To make generally available to the record holders of the
Notes within ninety days after the end of each fiscal year an annual
report (including a balance sheet and statements of income,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and, within
forty-five days after the end of each of the first three quarters of
each fiscal year (beginning with the fiscal quarter ending after the
date of the Offering Memorandum), to make available to such holders
consolidated summary financial information of the Company and its
consolidated subsidiaries for such quarter in reasonable detail;
(i) During a period of three years from the date of the
Offering Memorandum, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders of the
Company, and to deliver to you (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed
with the Commission or any securities exchange on which the Notes or
any class of securities of the Company is listed; and (ii) such
additional information concerning the business and financial condition
of the Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in
reports furnished to
11
its stockholders generally or to the Commission) to the extent such
information does not constitute non-public information;
(j) During the period of two years after the Time of Delivery,
the Company will not, and will not permit any of its "affiliates" (as
defined in Rule 144 under the Act) to, resell any of the Notes which
constitute "restricted securities" under Rule 144 that have been
reacquired by any of them;
(k) To comply with all of its agreements and obligations set
forth in the Exchange and Registration Rights Agreement;
(l) To use the net proceeds received by it from the sale of the
Notes pursuant to this Agreement in the manner specified in the
Offering Memorandum under the caption "Use of Proceeds;"
(m) That it will not, and will cause its affiliates not to, make
any offer or sale of securities of the Company of any class if, as a
result of the doctrine of "integration" referred to in Rule 502 under
the Act, such offer or sale would render invalid (for the purpose of
(i) the sale of the Notes by the Company to the Purchasers, (ii) the
initial resale of the Notes by the Purchasers to subsequent purchasers
or (iii) the initial resale of the Notes by such subsequent purchasers
to others) the exemption from the registration requirements of the Act.
(n) Each certificate for a Note will bear the legend contained
in "Notice to Investors" in the Offering Memorandum for the time period
and upon the other terms stated in the Offering Memorandum.
The Representatives, on behalf of the several Purchasers, may, in their
sole discretion, waive in writing the performance by the Company of any one or
more of the foregoing covenants or extend the time for their performance.
6. Payment of Fees and Expenses. The Company covenants and agrees
with the several Purchasers that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the issue of the Notes and all other expenses in
connection with the preparation and printing of the Preliminary Offering
Memorandum and the Offering Memorandum and any amendments and supplements
thereto and the mailing and delivering of copies thereof to the Purchasers and
dealers; (ii) the cost of printing or producing any Agreement among Purchasers,
this Agreement, the Exchange and Registration Rights Agreement, the Indenture,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Notes; (iii)
all expenses in connection with the qualification of the Notes for offering and
sale under state securities laws as provided in Section 5(b) hereof; (iv) any
fees charged by securities rating services for rating the Notes; (v) the cost of
preparing the Notes; (vi) 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 Notes; (vii) any cost incurred in
connection with the designation of the Notes for trading in PORTAL, if
12
so designated; (viii) any filing fees incident to the review by the National
Association of Securities Dealers, Inc., if any, of the terms of the sale of the
Notes or the Exchange Notes; (ix) all fees and expenses (including counsel) of
the Company in connection with approval of the Notes and the Exchange Notes by
DTC for "book-entry" transfer, (x) all out-of-pocket expenses that shall have
been reasonably incurred by the Purchasers in connection with the proposed
purchase and the offering and sale of the Notes, excluding fees and
disbursements of counsel, but including without limitation reasonable printing
expenses, travel expenses, postage and telephone charges, and (xi) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section 6, and Sections 8
and 11 hereof, the Purchasers will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Notes by them, and any advertising expenses connected with any offers they may
make.
7. Conditions to the Obligations of the Purchasers. The
obligations of the Purchasers hereunder shall be subject, in their discretion,
to the condition that all representations and warranties and other statements of
the Company herein are, at and as of the Time of Delivery, true and correct, the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.A., counsel for the
Purchasers, shall have furnished to you such opinion or opinions, dated
as of the date of the Time of Delivery, with respect to the matters
covered in paragraphs (i) and (xv) of subsection (b) below, as well as
such other related matters as you may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(b) Xxxxx & Xxx Xxxxx PLLC, counsel for the Company, shall
have furnished to you their written opinion, dated as of the date of
the Time of Delivery, in form and substance reasonably satisfactory to
you, to the effect that:
(i) Each of the Company and its Significant Subsidiaries
is validly existing as a corporation or partnership (as the
case may be) in good standing under the laws of the state of
its incorporation or organization, with power and authority
(corporate or partnership and other) to own its properties and
conduct its business as described in the Offering Memorandum;
(ii) The Company has an authorized capitalization as set
forth in the Offering Memorandum under the caption
"Capitalization"; and to such counsel's knowledge, all of the
issued shares of capital stock of the Company and any of its
Significant Subsidiaries have been duly and validly authorized
and issued and are fully paid and non-assessable; and all of
the issued shares of capital stock or partnership interests of
each Significant Subsidiary are, to such counsel's knowledge,
beneficially owned by the Company subject to no security
interest, other encumbrance or adverse claim;
13
(iii) To such counsel's knowledge, based on a
representation of the Company, and other than as set forth in
the Offering Memorandum, there are no 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
(within the reasonable expectation of the Company and Xxxxx &
Xxx Xxxxx PLLC) would, individually or in the aggregate, have
a Material Adverse Effect; and, to such counsel's knowledge,
no such proceedings are threatened by governmental authorities
or others;
(iv) This Agreement has been duly authorized,
executed and delivered by the Company;
(v) The Notes have been duly authorized and, at
the Time of Delivery, when duly authenticated by the Trustee
in the manner provided for in the Indenture and delivered by
or on behalf of the Company and paid for by the Purchasers
pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Company entitled to the
benefits provided by the Indenture; and at the Time of
Delivery, the Notes and the Indenture will conform in all
material respects to the descriptions thereof in the Offering
Memorandum;
(vi) Each of the Indenture and any indenture
supplemental thereto relating to the offering of the Notes has
been duly authorized, executed and delivered by the Company
and, assuming the due authorization, execution and delivery by
the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other laws of general applicability relating to
or affecting creditors' rights and to general equity
principles;
(vii) The Exchange and Registration Rights Agreement
has been duly authorized, executed and delivered by the
Company, and subject to the qualifications and limitations set
forth in such opinion, the obligation to pay Special Interest
in the event of a Registration Default (as such terms are
defined in the Exchange and Registration Rights Agreement) is
a valid and binding obligation of the Company;
(viii) The Exchange Notes have been duly authorized
and, when duly executed, authenticated by the Trustee, issued
and delivered in accordance with the Indenture and the
Exchange and Registration Rights Agreement, will constitute
valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture;
(ix) The issue and sale of the Notes and the
compliance by the Company with all of the provisions of the
Notes and the other Transaction Documents and the consummation
of the Transactions will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a
14
default under, any agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its
subsidiaries is subject and in each case that is set forth on
Schedule III hereto, nor will such action result in any
violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any existing United
States of America federal or State of New York statute,
regulation, rule or law to which the Company or any of its
subsidiaries or any of their properties is subject or the
General Corporation Law of the State of Delaware, except in
each case for such conflicts, breaches, violations or defaults
which would not individually or in the aggregate have a
Material Adverse Effect;
(x) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties
is required for the issue and sale of the Notes or the
consummation by the Company of any of the Transactions, except
for the filing of a registration statement by the Company with
the Commission pursuant to the Act and the qualification of
the Indenture under the Trust Indenture Act in connection with
the Exchange and Registration Rights Agreement and such
consents, approvals, authorizations, registrations or
qualifications as have already been obtained under the Act or
the Trust Indenture Act or as may be required under state
securities or Blue Sky laws in connection with the initial
purchase and distribution of the Notes by the Purchasers, as
to which they express no opinion;
(xi) The statements set forth in the Offering
Memorandum under the captions "Description of Notes" and
"Material United States Federal Income Tax Considerations,"
insofar as they constitute matters of law or summaries of
legal matters, fairly summarize in all material respects such
matters of law or legal matters;
(xii) The Exchange Act Reports (other than the
financial statements and related notes and schedules thereto
and the other financial and statistical date included in or
derived or omitted therefrom, as to which such counsel need
express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the
applicable requirements of the Exchange Act and the rules and
regulations of the Commission thereunder;
(xiii) Assuming the accuracy of, and compliance with,
each Purchaser's representations, warranties and agreements
and the representations, warranties and agreements of the
Company in this Agreement as to matters relating to the
absence of any general solicitation or the use of any general
advertising materials in connection with the offering of the
Notes, the nature of the offerees of the Notes and the
accuracy of the representations, warranties and agreements
made in accordance with the Offering Memorandum by purchasers
to whom you initially resell the Notes, no registration of the
Notes under the Act, and no qualification of an indenture
under the Trust Indenture Act with respect thereto, is
required for the
15
offer, sale and initial resale of the Notes by the Purchasers
in the manner contemplated by this Agreement;
(xiv) The Company is not an "investment company," as
such term is defined in the Investment Company Act; and
(xv) Such counsel shall further state that, while
they have not independently verified the accuracy or
completeness of the statements made or the information
contained in the Offering Memorandum, and, while they are not
passing upon and do not assume any responsibility for such
statements or information, in the course of the preparation of
the Offering Memorandum, they have participated in discussions
with representatives of the Company and its independent
accountants and your representatives, in which the business
affairs of the Company and the contents of the Offering
Memorandum were discussed, and that based upon the information
gained in connection with the preparation of the Offering
Memorandum and their participation in discussion referred to
above, no facts have come to such counsel's attention that
lead it to believe that (i) any of the Exchange Act Reports
(other than the financial statements and notes and schedules
thereto and the other financial and statistical data included
in or derived or omitted therefrom, as to which such counsel
need make no statement), when read together with the other
information in the Offering Memorandum, as of the date of the
Offering Memorandum and at the Time of Delivery, contained an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading and (ii) the Offering Memorandum
(other than the financial statements and related notes and
schedules thereto and the other financial and statistical data
included or incorporated by reference in or derived or omitted
therefrom or the Statement of Eligibility of the Trustee on
Form T-1, as to which such counsel need make no statement)
contained as of its date or contains at the Time of Delivery
an untrue statement of a material fact or omitted or omits, as
the case may be, to state a material fact necessary to make
the statements therein, in the light of the circumstances
under which they were made, not misleading.
(c) On the date of the Offering Memorandum prior to the
execution of this Agreement and also at the Time of Delivery,
PricewaterhouseCoopers LLP shall have furnished to you a letter or
letters containing statements and information of the type ordinarily
included in accountants' "comfort letters" to initial purchasers in an
offering of securities similar to the Notes, delivered according to
Statement of Auditing Standards Nos. 72 and 76 (or any successor
bulletins), with respect to the audited and unaudited financial
statements and certain financial information contained or incorporated
by reference in the Offering Memorandum;
(d) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited financial
statements included in the Offering Memorandum any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or
16
governmental action, order or decree, otherwise than as set forth or
contemplated in the Offering Memorandum, and (ii) since the respective
dates as of which information is given in the Offering Memorandum there
shall not have been any change in the capital stock or material
increase in the long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Offering Memorandum, the effect of
which, in any such case described in clause (i) or (ii), is in the
reasonable judgment of the Representatives so material and adverse as
to make it impracticable or inadvisable to proceed with the offering or
the delivery of the Notes on the terms and in the manner contemplated
in this Agreement and in the Offering Memorandum;
(e) On or after the date hereof no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act;
(f) On or after the date hereof there shall not have occurred
any of the following: (i) a material suspension or limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or North
Carolina or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in
the United States; (iv) a material adverse change in the financial
markets in the United States or in international financial markets; (v)
the outbreak or escalation of hostilities involving the United States
or the declaration by the United States of a national emergency or war
or (vi) the occurrence of any other calamity or crisis or any change in
national or international financial, political or economic conditions,
if the effect of any such event specified in clause (iv), (v) or (vi)
in the reasonable judgment of the Representatives makes it
impracticable or inadvisable to proceed with the offering or the
delivery of the Notes on the terms and in the manner contemplated in
the Offering Memorandum, as amended or supplemented;
(g) If requested by the Representatives, the Notes have been
designated for trading on PORTAL;
(h) The Company shall have furnished or caused to be furnished
to you at the Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the Company of all of its obligations hereunder
to be performed at or prior to such Time of Delivery, as to the matters
set forth in subsections (d) and (e) of this Section and as to such
other matters as you may reasonably request;
(i) The Company shall have executed and delivered the Exchange
and Registration Rights Agreement;
17
If any condition specified in this Section 7 is not satisfied
when and as required to be satisfied, or upon the occurrence of any of
the events in Section 7(d), (e) or (f), this Agreement may be
terminated by the Purchasers by notice to the Company, which
termination shall be without liability on the part of any party to any
other party, except that Sections 6, 8 and 11 shall at all times be
effective and shall survive such termination.
8. Indemnification.
(a) The Company will indemnify and hold harmless each
Purchaser against any losses, claims, damages or liabilities, joint or
several, to which such Purchaser may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Offering Memorandum or the Offering Memorandum, or any
amendment 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 not
misleading, and will reimburse each Purchaser for any reasonable legal
or other expenses reasonably incurred by such Purchaser in connection
with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Offering Memorandum or the Offering Memorandum or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Purchaser through the
Representatives expressly for use therein, and that the foregoing
indemnity with respect to any Preliminary Offering Memorandum shall not
inure to the benefit of any Purchaser (or to the benefit of any person
controlling such Purchaser) from whom the person asserting any such
losses, claims, damages or liabilities purchased Notes if such untrue
statement or omission or alleged untrue statement or omission made in
such Preliminary Offering Memorandum is eliminated or remedied in the
Offering Memorandum (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) and if a copy of
the Offering Memorandum (as so amended or supplemented, but excluding
the documents incorporated by reference therein), shall not have been
furnished to such person at or prior to the sale of such Notes to such
person.
(b) Each Purchaser will severally, and not jointly, indemnify
and hold harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Offering Memorandum or the Offering Memorandum, or any
amendment 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 not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Offering Memorandum or the
Offering Memorandum or any
18
such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Purchaser through
the Representatives expressly for use therein; and will reimburse the
Company for any reasonable legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve such
indemnifying party from any liability which it may have to any
indemnified party otherwise under such subsection. In case any such
action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. Notwithstanding the foregoing, if the indemnified party
has determined, in its reasonable judgment, that there may be one or
more defenses available to the indemnified party which may be different
from or additional to those available to the indemnifying party and
that the existence of such different or additional defenses creates, in
the reasonable judgment of such indemnified party, a conflict in
connection with the joint representation of the indemnified party and
the indemnifying party, then the indemnified party shall have the right
to employ separate counsel and in that event the reasonable fees and
expenses of such separate counsel for the indemnified party shall be
paid by the indemnifying party; provided, however, that the
indemnifying party shall only be obligated to pay the reasonable fees
and expenses of a single law firm (and any reasonably necessary local
counsel) employed by all of the indemnified parties unless any
indemnified party has determined, in its reasonable judgment, that
there may be one or more defenses available to it which may be
different from or additional to those available to another indemnified
party and that the existence of such different or additional defense
creates, in its reasonable judgment, a conflict in connection with the
joint representation of the indemnified parties, in which case the
indemnifying party shall be obligated to pay the reasonable fees and
expenses of a separate single law firm (and any reasonably necessary
local counsel) employed by each such indemnified party to which such
conflict relates. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
19
unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Purchasers on the other from the
offering of the Notes. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party 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 the
Purchasers on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Purchasers on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Purchasers, in
each case as set forth in the Offering Memorandum. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading relates to information supplied by the Company on the one
hand or the Purchasers on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Purchasers agree that
it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Purchasers were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Purchaser
shall be required to contribute any amount in excess of the amount by
which the total offering price at which the Notes underwritten and
resold by it exceeds the amount of any damages which such Purchaser has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Purchasers'
obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
20
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Purchaser within the meaning of the Act; and
the obligations of the Purchasers under this Section 8 shall be in
addition to any liability which the respective Purchasers may otherwise
have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who
controls the Company within the meaning of the Act.
9. (a) If any Purchaser shall default in its obligation to
purchase the Notes which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to purchase such
Notes on the terms contained herein. If within thirty-six hours after such
default by any Purchaser you do not arrange for the purchase of such Notes, then
the Company shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties satisfactory to you to purchase
such Notes on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Notes, or the Company notifies you that it has so arranged for the purchase
of such Notes, you or the Company shall have the right to postpone the Time of
Delivery for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Offering Memorandum, or in any
other documents or arrangements, and the Company agrees to prepare promptly any
amendments to the Offering Memorandum which in your opinion may thereby be made
necessary. The term "Purchaser" as used in this Agreement shall include any
person substituted under this Section 9 with like effect as if such person had
originally been a party to this Agreement with respect to such Notes.
(b) If, after giving effect to any arrangements for the
purchase of the Notes of a defaulting Purchaser or Purchasers by you
and the Company as provided in subsection (a) above, the aggregate
principal amount of such Notes which remains unpurchased does not
exceed one-tenth of the aggregate principal amount of all the Notes,
then the Company shall have the right to require each non-defaulting
Purchaser to purchase the principal amount of Notes which such
Purchaser agreed to purchase hereunder and, in addition, to require
each non-defaulting Purchaser to purchase its pro rata share (based on
the principal amount of Notes which such Purchaser agreed to purchase
hereunder) of the Notes of such defaulting Purchaser or Purchasers for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Purchaser from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Notes of a defaulting Purchaser or Purchasers by you
and the Company as provided in subsection (a) above, the aggregate
principal amount of Notes which remains unpurchased exceeds one-tenth
of the aggregate principal amount of all the Notes, or if the Company
shall not exercise the right described in subsection (b) above to
require non-defaulting Purchasers to purchase Notes of a defaulting
Purchaser or Purchasers, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Purchaser or the
Company, except for the expenses to be borne by the Company and the
Purchasers as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Purchaser from liability for its default.
21
10. Notwithstanding anything to the contrary contained herein, the
respective indemnities, agreements, representations, warranties, covenants and
other statements of the Company and the several Purchasers, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Purchaser or any controlling person of any Purchaser, or the Company, or
any officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Notes.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Purchaser except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the Notes are
not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Purchasers through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Purchasers in making preparations for the purchase,
sale and delivery of the Notes, but the Company shall then be under no further
liability to any Purchaser except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or given
by you jointly or by either of you as the Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by mail, telex or
facsimile transmission to you as the Representatives in care of Banc of America
Securities LLC, 000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, Attention: Transaction Management, Facsimile: (000) 000-0000 or Wachovia
Securities, Inc., One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Xxxxxx Xxxxx, Facsimile: (000) 000-0000; and if
to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Offering Memorandum,
Attention: Chief Financial Officer; provided, however, that any notice to a
Purchaser pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Purchaser at its address set forth on
Schedule I hereto. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Purchasers, the Company and, to the extent provided in Sections
8 and 10 hereof, the officers and directors of the Company and each person who
controls the Company or any Purchaser, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Notes from any Purchaser shall be deemed a successor or assign by reason merely
of such purchase.
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS.
22
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
17. The Company is authorized, subject to applicable law, to disclose
any and all aspects of this potential transaction that are necessary to support
any U.S. federal income tax benefits expected to be claimed with respect to such
transaction, without the Purchasers imposing any limitation of any kind.
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof, and upon such execution hereof by you,
on behalf of each of the Purchasers, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Purchasers and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Purchasers is pursuant to the authority set forth in a form of Agreement
among Purchasers, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
[Remainder of page intentionally left blank.]
23
Very truly yours,
Nucor Corporation
By: ___________________________
Name:
Title:
Accepted as of the date hereof:
Banc of America Securities LLC
Wachovia Securities, Inc.
As Representatives on behalf of each of the Purchasers
Banc of America Securities LLC
By: ___________________________________
Name:
Title:
Wachovia Securities, Inc.
By: ___________________________________
Name:
Title:
24
Schedule I
Principal
Amount of
Notes to be
Purchaser Purchased
--------- ---------
Banc of America Securities LLC .......................................... $ 143,500,000
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Wachovia Securities, Inc ................................................ 143,500,000
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Banc One Capital Markets, Inc. .......................................... 28,000,000
Corporate Securities Structuring
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
CIBC World Markets Corp. ................................................ 21,000,000
8th Floor, 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
BNY Capital Markets, Inc. ............................................... 14,000,000
Debt Capital Markets
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
-------------
Total $ 350,000,000
=============
S-1
Schedule II
Significant Subsidiaries
Nucor Yamato Steel Company (Limited Partnership)
S-2
Schedule III
1. $175 Million Aggregate Principal Amount of 6% Notes Due 2009.
2. Nucor Corporation Industrial Revenue (and similar) Bonds as set forth in
the Offering Memorandum and reflected in the financial statements included
in the Offering Memorandum.
3. The definitive agreement for the acquisition by Nucor Corporation of
substantially all the assets of Birmingham Steel Corporation for $615
million in cash.
S-3
ANNEX I
Each Purchaser hereby, severally and not jointly, represents and
warrants to, and agrees with, the Company, pursuant to Section 3(a)(iii) of the
Purchase Agreement to which this Annex I is attached, as follows:
(1) The Notes have not been and will not be registered under the Act
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons (other than a distributor) except in
accordance with Regulation S under the Act or pursuant to an exemption from the
registration requirements of the Act. Each Purchaser represents that it has
offered and sold the Notes, and will offer and sell the Notes (i) as part of its
distribution at any time and (ii) otherwise until 40 days after the later of the
commencement of the offering of the Notes pursuant hereto and the Time of
Delivery, in accordance with Rule 903 of Regulation S or Rule 144A under the Act
or pursuant to Paragraph 2 of this Annex I. Accordingly, each Purchaser agrees
that neither it, its affiliates (as defined in Regulation D under the Act) nor
any persons acting on its or their behalf has engaged or will engage in any
directed selling efforts (within the meaning of Regulation S) with respect to
the Notes, and it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Purchaser agrees that, at or
prior to confirmation of a sale of Notes (other than a sale pursuant to
Paragraph 2 of this Annex I), it will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that purchases
Notes from it during such 40-day restricted period a confirmation or notice to
substantially the following effect:
"The securities covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities Act") and may
not be offered and sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of your distribution at
any time or (ii) otherwise until 40 days after the later of the date
the Notes were first offered to persons other than "distributors" (as
defined in Regulation S) in reliance upon Regulation S and the closing
date, except in either case in accordance with Regulation S under the
Securities Act (or Rule 144A), and in connection with any subsequent
sale by you of the Notes covered hereby in reliance on Regulation S
during the period referred to above to any distributor, dealer or
person receiving a selling concession, fee or other remuneration, you
must deliver a notice to substantially the foregoing effect. Terms used
above have the meanings given to them in Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
Each Purchaser further agrees that it has not entered and will not
enter into any contractual arrangement with respect to the distribution or
delivery of the Notes, except with its affiliates or with the prior written
consent of the Company.
(2) Notwithstanding the foregoing, Notes in registered form may be
offered, sold and delivered by the Purchasers in the United States and to U.S.
persons pursuant to Section 3(a)(i) and (ii) of this Agreement without delivery
of the written statement required by Paragraph (1) above.
(3) Each Purchaser further represents, warrants and agrees that (i) it
has not offered or sold and, prior to the expiry of a period of six months from
the closing date, will not offer or sell
Annex I-1
any Notes 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 Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has only communicated or caused
to be communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the meaning of
section 21 of the Financial Services and Markets Act 2000 (the "FSMA")) received
by it in connection with the issue or sale of any Notes in circumstances in
which section 21(1) of the FSMA does not apply to the Company; and (iii) it has
complied and will comply with all applicable provisions of the FSMA with respect
to anything done by it in relation to the Notes in, from or otherwise involving
the United Kingdom.
(4) Each Purchaser agrees that it will not acquire, offer, sell or
deliver any of the Notes or have in its possession or distribute the Offering
Memorandum or any other offering or publicity material relating to the Notes in
any jurisdiction outside the United States except under circumstances that will
result in compliance with the applicable laws and regulations thereof, and that
it will take at its own expense whatever action is required to permit its
purchase and resale of the Notes in such jurisdictions. Each Purchaser
understands that no action has been or will be taken by the Company to permit a
public offering, or possession or distribution of the Offering Memorandum or any
other offering or publicity material relating to the Notes, in any jurisdiction
outside the United States where action would be required for such purpose. Each
Purchaser agrees not to cause any advertisement of the Notes to be published in
any newspaper or periodical or posted in any public place and not to issue any
circular relating to the Notes, except in any such case with the express written
consent of the Representatives and then only at its own risk and expense.
Annex I-2
