Pier 1 Imports, Inc. Purchase Agreement
EXHIBIT 99.1
EXECUTION COPY
$150,000,000
Pier 1 Imports, Inc.
6.375% Convertible Senior Notes due February 15, 2036
Purchase Agreement
February 8, 2006
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Pier 1 Imports, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to
X.X. Xxxxxx Securities Inc. (the “Initial Purchaser”), $150,000,000 principal amount of its 6.375%
Convertible Senior Notes due 2036 (the “Firm Securities”) to be issued pursuant to the provisions
of an Indenture dated as of February 14, 2006 (the “Indenture”) among the Company, the Guarantors
(as defined below) and JPMorgan Chase Bank, National Association, as Trustee (the “Trustee”). The
Company also proposes to issue and sell to the Initial Purchaser not more than an additional
$15,000,000 principal amount of its 6.375% Convertible Senior Notes due 2036 (the “Additional
Securities”, and together with the Firm Securities, the “Securities”) if and to the extent that the
Initial Purchaser shall have determined to exercise the right to purchase such 6.375% Convertible
Senior Notes due 2036 granted to the Initial Purchaser in Section 1 hereof. Subject to the
provisions of the Indenture, the Securities will be fully and unconditionally guaranteed (the
“Subsidiary Guarantees”) on an unsecured senior subordinated basis by all of the subsidiaries of
the Company that are currently a party, either as a borrower or a facility guarantor, to the Credit
Agreement dated November 22, 2005 among Pier 1 Imports (U.S.), Inc., Pier 1 Kids, Inc., Bank of
America, N.A., as administrative agent and collateral agent, and the lenders party thereto (which
subsidiaries are listed on the signature pages to this Agreement), and all of the direct and
indirect future domestic subsidiaries of the Company who execute a supplemental indenture in order
to become
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Guarantors in accordance with the terms of the Indenture (collectively, the
“Guarantors”). The Securities will be convertible into shares (the “Underlying Securities”) of
common stock of the Company, par value $1.00 per share (the “Common Stock”).
The Securities, the Underlying Securities and the Subsidiary Guarantees will be offered
without being registered under the Securities Act of 1933, as amended (together with the rules and
regulations promulgated there under, the “Securities Act”), only to “qualified institutional
buyers” (as defined in the Securities Act) in compliance with the exemption from registration
provided by Rule 144A under the Securities Act.
Each Initial Purchaser and its direct and indirect transferees will be entitled to the
benefits of a Registration Rights Agreement dated as of the Closing Date among the Company, the
Guarantors and the Initial Purchaser (the “Registration Rights Agreement”).
In connection with the sale of the Securities, the Company has prepared a preliminary offering
memorandum (including the documents incorporated by reference therein, the “Preliminary
Memorandum”) and will prepare a final offering memorandum (including the documents incorporated by
reference therein, the “Final Memorandum” and, collectively the “Offering Memorandum”) for the
information of the Initial Purchaser and for delivery to prospective purchasers of the Securities.
The time when sales of Securities are first made or confirmed by the Initial Purchaser to qualified
institutional buyers is referred to as the “Time of Sale,” and the Preliminary Memorandum, together
with the other information referenced on Schedule I hereto, is referred to as the “Time of Sale
Information.” If, subsequent to the date of this Agreement, the Company and the Initial Purchaser
have determined that such Time of Sale Information included an untrue statement of a material fact
or omitted a statement of material fact necessary to make the information therein, in the light of
the circumstances under which it was made, not misleading and have agreed to provide an opportunity
to purchasers of the Securities to terminate their old purchase contracts and enter into new
purchase contracts, then “Time of Sale Information” will refer to the information available to
purchasers at the time of entry into the first such new purchase contract.
The Company hereby agrees with the Initial Purchaser as follows:
1. Agreements to Sell and Purchase. The Company agrees to issue and sell the Firm Securities
to the Initial Purchaser as hereinafter provided, and the Initial Purchaser, upon the basis of the
representations and warranties herein contained, but subject to the conditions hereinafter stated,
agrees to purchase from the Company the Firm Securities at a purchase price of 97.00% of the
principal
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amount thereof (the “Purchase Price”), plus accrued interest, if any, from February 14,
2006, to the date of payment and delivery.
On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to sell to the Initial Purchaser the Additional
Securities, and the Initial Purchaser shall have the right to purchase in whole, or from time to
time in part, up to $15,000,000 principal amount of Additional Securities at the Purchase Price
plus accrued interest, if any, from the Closing Date (as defined below) to the date of payment and
delivery, solely to cover over-allotments, if any. If the Initial Purchaser exercises such option,
the Initial Purchaser shall so notify the Company in writing not later than 13 days after the date
of this Agreement, which notice shall specify the principal amount of Additional Securities to be
purchased by the Initial Purchaser and the date on which such Additional Securities are to be
purchased. Such date may be the same as the Closing Date but not earlier than the Closing Date nor
later than ten business days after the date of such notice.
The Company acknowledges and agrees that the Initial Purchaser is acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect to the offering of
Securities and the Underlying Securities contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, the Initial Purchaser is not advising the
Company or any other person as to any legal, tax, investment, accounting or regulatory matters in
any jurisdiction. The Company shall consult with its own advisors concerning such matters and
shall be responsible for making their own independent investigation and appraisal of the
transactions contemplated hereby, and the Initial Purchaser shall have no responsibility or
liability to the Company with respect thereto. Any review by the Initial Purchaser of the Company,
the transactions contemplated hereby or other matters relating to such transactions will be
performed solely for the benefit of the Initial Purchaser and shall not be on behalf of the
Company.
2. Terms of the Offering. The Company understands that the Initial Purchaser intends (i) to
offer privately pursuant to Rule 144A under the Securities Act their respective portions of the
Securities as soon after this Agreement has become effective as in the judgment of the Initial
Purchaser is advisable and (ii) initially to offer the Securities upon the terms set forth in the
Final Memorandum.
The Company confirms that it has authorized the Initial Purchaser, subject to the restrictions
set forth below, to distribute copies of the Offering Memorandum in connection with the offering of
the Securities. The Initial Purchaser hereby makes to the Company the following representations
and agreements:
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(i) the Initial Purchaser is a “qualified institutional buyer” within the meaning of
Rule 144A under the Securities Act;
(ii) offers and sales of the Securities will be made only by the Initial Purchaser or
its affiliates thereof qualified to do so in the jurisdictions in which such offers or
sales are made;
(iii) (A) the Initial Purchaser has not solicited offers for, or offered or sold, and
will not solicit offers for, or offer to sell, the Securities by means of any form of
general solicitation or general advertising (as those terms are used in Regulation D under
the Securities Act (“Regulation D”)) or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act and (B) the Initial Purchaser has
solicited and will solicit offers for the Securities only from, and has offered or sold
and will offer, sell or deliver the Securities only to persons who it reasonably believes
to be “qualified institutional buyers” within the meaning of Rule 144A under the
Securities Act that in purchasing the Securities are deemed to have represented and agreed
as provided in the Offering Memorandum;
(iv) the Initial Purchaser has not offered or sold and, prior to the date six months
after the date of issuance of the notes, will not offer or sell 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 United Kingdom
Public Offers of Securities Regulations 1995 (as amended);
(v) the Initial Purchaser (i) is a person whose ordinary activities involve it in
acquiring, holding, managing or disposing of investments (as principal or agent) for the
purposes of its business and (ii) has not offered or sold and will not offer or sell the
notes other than to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or as agent) for the purposes of their
businesses or who it is reasonable to expect will acquire, hold, manage or dispose of
investments (as principal or agent) for the purposes of their businesses where the issue
of the notes would otherwise constitute a contravention of Section 19 of the United
Kingdom Financial Services and Markets Act 2000 (the “FSMA”);
(vi) the Initial Purchaser has only communicated or caused to be communicated and
will only communicate or cause to be communicated an invitation or inducement to engage in
investment activity (within the
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meaning of Section 21 of the FSMA) received by it in
connection with the issue or sale of the notes in circumstances in which Section 21(1) of
the FSMA does not apply to us or the guarantors; and
(vii) the Initial Purchaser 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.
With respect to offers and sales of the Securities inside the United States to “qualified
institutional buyers” within the meaning of Rule 144A, as described in clause (iii)(B) above, the
Initial Purchaser hereby represents and agrees with the Company that prior to or contemporaneously
with the purchase of the Securities, the Initial Purchaser will take reasonable steps to inform,
and cause each of its affiliates to take responsible steps to inform, U.S. persons acquiring
Securities from such Initial Purchaser or affiliate, as the case may be, or other person acquiring
Securities from such Initial Purchaser or affiliate in the United States, as the case may be, that
the Securities (A) are being sold to them in reliance on Rule 144A under the Securities Act, (B)
have not been and, except as described in the Offering Memorandum, will not be registered under the
Securities Act, and (C) may not be offered, sold or otherwise transferred except as described in
the Offering Memorandum.
3. Payment for Securities. Payment for the Firm Securities shall be made to the Company in
Federal or other funds immediately available in New York City against delivery of such Firm
Securities for the account of the Initial Purchaser at 10:00 a.m., New York City time, on February
14, 2006. The time and date of such payment are hereinafter referred to as the “Closing Date.”
Payment for any Additional Securities shall be made to the Company in Federal or other funds
immediately available in New York City against delivery of such Additional Securities for the
account of the Initial Purchaser at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 1 or at such other time on the same or on such other date, in any event
not later than February 21, 2006, as shall be designated in writing by you. The time and date of
such payment are hereinafter referred to as the “Option Closing Date.”
Certificates for the Firm Securities and Additional Securities shall be in definitive form or
global form, as specified by you, and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the Closing Date or the
Option Closing Date, as the case may be. The certificates evidencing the Firm Securities and
Additional Securities shall be delivered to the Initial Purchaser on the Closing Date and the
Option Closing Date, respectively, for the Initial Purchaser’s account, with any transfer taxes
payable in connection with the transfer of the Securities to the Initial Purchaser
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duly paid,
against payment of the Purchase Price therefor plus accrued interest, if any, to the date of
payment and delivery.
4. Representations and Warranties. The Company and each of the Guarantors jointly and
severally represent and warrant to the Initial Purchaser that:
(a) the Preliminary Memorandum did not, as of its date, the Time of Sale Information,
did not, as of the Time of Sale, and the Final Memorandum did not, as of its date, and
will not, as of the Closing Date, contain any 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 relating to the Initial Purchaser
furnished to the Company in writing by the Initial Purchaser expressly for use therein;
(b) the documents incorporated by reference in the Time of Sale Information and the
Final Memorandum, when they were filed with the Securities and Exchange Commission (the
“Commission”), conformed in all material respects to the requirements of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and none of such documents
contained an untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and any further documents so filed and incorporated by
reference in 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 will not
contain an untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which they were
made, not misleading;
(c) the financial statements, and the related notes thereto, of the Company included
or incorporated by reference in the Time of Sale Information and the Final Memorandum
present fairly, in all material respects, the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates indicated and the results of
their operations and the changes in their consolidated cash flows for the periods
specified; and said financial statements have been prepared in conformity with United
States generally accepted accounting principles and practices applied on a consistent
basis, except as described in the notes to such financial statements; and the supporting
schedules incorporated by reference in the Time of Sale Information and the Final
Memorandum present fairly the information required to be stated therein; and the other
financial and statistical information and any other financial data set forth
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in the Time
of Sale Information and the Final Memorandum present fairly, in all material respects, the
information purported to be shown thereby at the respective dates or for the respective
periods to which they apply and, to the extent that such information is set forth in or
has been derived from the financial statements and accounting books and records of the
Company, have been prepared on a basis consistent with such financial statements and the
books and records of the Company;
(d) since the respective dates as of which information is given in the Time of Sale
Information and the Final Memorandum, there has not been any change in the capital stock,
other than changes that may result under any of the Company’s existing employee stock and
non-employee director stock plans, stock ownership plans or dividend reinvestment plans,
including but not limited to, the Company’s Stock Purchase Plan, Management Restricted
Stock Plan, 1999 Stock Plan, the Directors Deferred Stock Program, 1989 Employee Stock
Option Plan and the 1989 Non-Employee Director Plan (the “Plans”) or long-term debt of the
Company or any of its subsidiaries which are “significant subsidiaries” within the meaning
of Regulation S-X promulgated under the Securities Act (each, a “Significant Subsidiary”
and collectively, the “Significant Subsidiaries”), or any issuance of any options,
warrants, convertible securities or rights to purchase capital stock of the Company or any
of the Significant Subsidiaries, except in connection with the Plans, or any material
adverse change, or any development involving a prospective material adverse change, in or
affecting the business, financial position, stockholders’ equity or results of operations
of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”),
otherwise than as set forth or contemplated in the Time of Sale Information and the Final
Memorandum; the Company has not declared or paid any dividends or made any distribution of
any kind with respect to its capital stock; except for its regular quarterly dividend of
$0.10 per share payable on February 15, 2006; and except as set forth, incorporated by
reference or contemplated in the Time of Sale Information and the Final Memorandum,
neither the Company nor any of its Significant Subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of business) material to
the Company and its subsidiaries, taken as a whole;
(e) the Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and conduct its business as
described in the Time of Sale Information and the Final 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
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properties, or
conducts any business, so as to require such qualification, other than where the failure
to be so qualified or in good standing would not have a Material Adverse Effect;
(f) each of the Company’s Significant Subsidiaries has been duly organized or formed
and is validly existing as a corporation, limited liability company, partnership,
liability partnership or statutory trust, with all requisite corporate, limited liability
company, partnership, limited partnership or statutory trust, as the case may be, power
and authority to own its properties and conduct its business as described in the Time of
Sale Information and the Final Memorandum, and, as applicable, has been duly qualified as
a foreign corporation for the transaction of business and is in good standing under the
laws of each jurisdiction in which it owns or leases properties or conducts any business,
so as to require such qualification, other than where the failure to be so qualified or in
good standing would not have a Material Adverse Effect; and all the outstanding shares of
capital stock of each Significant Subsidiary of the Company have been duly authorized and
validly issued, are fully paid and non-assessable, and are owned by the Company, directly
or indirectly, free and clear of all liens, encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and delivered by the Company
and each of the Guarantors;
(h) the Company had, at the date indicated in the Time of Sale Information and the
Final Memorandum, a duly authorized, issued and outstanding capitalization as set forth in
the Time of Sale Information and the Final Memorandum under the caption “Capitalization”
and such authorized capital stock of the Company conforms as to legal matters in all
material respects to the description thereof contained in the Time of Sale Information and
the Final Memorandum; there are no outstanding options to purchase, or any rights or
warrants to subscribe for, or any securities or obligations convertible into, or any
contracts or commitments to issue or sell, any shares of Common Stock, any shares of
capital stock of any subsidiary, or any such warrants, convertible securities or
obligations, except as set forth in the Time of Sale Information and the Final Memorandum
and except pursuant to the Plans; except for this Agreement and the Registration Rights
Agreement or the Plans, there are no contracts, commitments, agreements, arrangements,
understandings or undertakings of any kind to which the Company is a party, or by which it
is bound, granting to any person the right to require either the Company to file a
registration statement under the Securities Act with respect to any securities of the
Company or requiring the Company to include such
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securities with the Securities registered
pursuant to any registration statement;
(i) the shares of Common Stock outstanding on the date hereof have been duly
authorized and are validly issued, fully paid and non-assessable;
(j) the Securities have been duly authorized by the Company, and when duly executed,
authenticated, issued and delivered as provided in the Indenture (assuming due
authentication of the Securities by the Trustee) and paid for as provided herein will
constitute valid and binding obligations of the Company, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and
remedies generally, and subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity); and the Securities
will conform to the descriptions thereof in the Time of Sale Information and the Final
Memorandum;
(k) the Indenture has been duly authorized by the Company and each of the Guarantors,
and when executed and delivered by the Company and each of the Guarantors (assuming the
authorization, execution and delivery by the Trustee), will be a valid and binding
instrument of the Company and each of the Guarantors; enforceable against such entities in
accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and
remedies generally, and subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity); and the Indenture
will conform to the description thereof in the Time of Sale Information and the Final
Memorandum;
(l) upon issuance and delivery of the Securities in accordance with the Agreement and
the Indenture, the Securities will be convertible at the option of the holder thereof into shares of the Underlying Securities in accordance with the terms of the Securities; the
Underlying Securities reserved for issuance upon conversion of the Securities have been
duly authorized and reserved and, when issued upon conversion of the Securities in
accordance with the terms of the Securities, will be validly issued, fully paid and
non-assessable, and the issuance of the Underlying Securities will not be subject to any
preemptive or similar rights.
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(m) the Registration Rights Agreement has been duly authorized by the Company and
each of the Guarantors and when executed and delivered by the Company and each of the
Guarantors (assuming the due authorization, execution and delivery thereof by the Initial
Purchaser), shall constitute the legal, valid and binding obligation of the Company,
enforceable against such entities in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors’ rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law
or in equity) and except that rights to indemnification and contribution thereunder may be
limited by federal or state securities laws or public policy relating thereto; and the
Registration Rights Agreement conforms to the description thereof in the Time of Sale
Information and the Final Memorandum;
(n) Each of the Guarantors has all requisite corporate, limited liability company,
partnership, limited partnership or statutory trust, as the case may be, power and
authority to execute, issue and deliver the Subsidiary Guarantees and perform its
obligations thereunder. The Subsidiary Guarantees have been duly authorized by each of
the Guarantors and when the Subsidiary Guarantees are duly endorsed on the Securities in
accordance with the terms of the Indenture and delivered to and paid for by the Initial
Purchaser pursuant to this Agreement on the Closing Date, assuming due authorization of
the Securities by the Trustee, such Subsidiary Guarantees will constitute legally valid
and binding obligations of the respective Guarantors, entitled to the benefits of the
Indenture and enforceable against the respective Guarantors in accordance with their
terms, subject to applicable bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium and similar laws affecting creditors’ rights generally and
equitable principles of general applicability and an implied covenant of good faith and
fair dealing;
(o) neither the Company nor any of the Guarantors is, or with the giving of notice or
lapse of time or both would be, in violation of or in default under, its Certificate of
Incorporation, Bylaws or other organizational documents or under any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the Company or any
of the Guarantors is a party or by which it or any of them or any of their respective
properties is bound, except for violations and defaults which individually or in the
aggregate are not material to the Company and its subsidiaries, taken as a whole, or to
the holders of the Securities. The issue and sale of the Securities and the issuance by
the Company of the
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Underlying Securities upon conversion of the Securities and the
performance by the Company and each of the Guarantors of all its obligations under the
Securities, the Indenture, the Registration Rights Agreement, the Subsidiary Guarantees
and this Agreement, and the consummation of the transactions herein and therein
contemplated, will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or any of its
Significant Subsidiaries under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its Significant Subsidiaries
is a party or by which the Company or any of its Significant Subsidiaries is bound or to
which any of the property or assets of the Company or any of its Significant Subsidiaries
is subject, nor will any such action result in any violation of the provisions of the
Certificate of Incorporation or the Bylaws of the Company or any applicable law or statute
or any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, its Significant Subsidiaries or any of their respective
properties; and no consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement, the Registration Rights Agreement, the Subsidiary
Guarantees or the Indenture, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as may be required under (i) state securities or
Blue Sky Laws in connection with the purchase and distribution of the Securities by the
Initial Purchaser or (ii) under the Securities Act with respect to the registration of the
Securities and the Underlying Securities pursuant to the terms of the Registration Rights
Agreement;
(p) other than as set forth in the Time of Sale Information and the Final Memorandum,
there are no legal or governmental investigations, actions, suits or proceedings pending
or, to the knowledge of the Company, threatened against or affecting the Company or any of
its subsidiaries or any of their respective properties or to which the Company or any of
its subsidiaries is or may be a party or to which any property of the Company or any of
its subsidiaries is or may be the subject which, if determined adversely to the Company or
any of its subsidiaries, could individually or in the aggregate have, or reasonably be
expected to have, (i) a Material Adverse Effect, or (ii) a material adverse effect on the
consummation of the transactions contemplated in this Agreement; the aggregate of all
pending legal and governmental proceedings that are not described in the Time of Sale
Information and the Final Memorandum to
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which the Company or any of its subsidiaries is a
party or which affect any of their respective properties and in which there is a
reasonable possibility of an adverse decision, including ordinary routine litigation
incidental to the business of the Company or any Significant Subsidiary, would not have a
Material Adverse Effect;
(q) neither the Company, nor any affiliate (as defined in Rule 501(b) of Regulation
D) of the Company has directly, or through any agent, sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any security (as defined in the
Securities Act) which is or will be integrated with the sale of the Securities in a manner
that would require the registration under the Securities Act of the offering contemplated
by the Time of Sale Information and the Final Memorandum;
(r) none of the Company, any affiliate of the Company or any person acting on its or
their behalf has offered or sold the Securities by means of any general solicitation or
general advertising within the meaning of Rule 502(c) under the Securities Act;
(s) the Securities satisfy the requirements set forth in Rule 144A(d)(3) under the
Securities Act;
(t) assuming the accuracy of the representations of the Initial Purchaser contained
in Section 2 hereof and its compliance with the agreements set forth therein, it is not
necessary in connection with the offer, sale and delivery of the Securities in the manner
contemplated by this Agreement, the Time of Sale Information and the Final Memorandum to
register the Securities, Underlying Securities or the Subsidiary Guarantees under the
Securities Act or to qualify the Indenture under the Trust Indenture Act of 1939, as
amended;
(u) the Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the Time of Sale
Information and the Final Memorandum, will not be required to register as an “investment
company” as such term is defined in the Investment Company Act of 1940, as amended;
(v) Ernst & Young LLP, who have certified the consolidated financial statements of
the Company as of February 26, 2005, are independent public accountants as required under
the Securities Act;
(w) the Company and its Significant Subsidiaries have filed all federal, state, local
and foreign tax returns which have been required to be filed and have paid all taxes shown
thereon and all assessments received
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by them or any of them to the extent that such taxes
have become due and are not being contested in good faith, except where the failure to do
so would not have a Material Adverse Effect;
(x) no labor disputes exist with employees of the Company or of its Significant
Subsidiaries which are likely to have a Material Adverse Effect;
(y) each of the Company and its Significant Subsidiaries is in compliance with any
and all applicable foreign, federal, state and local laws and regulations relating to the
protection of human health or the environment or imposing liability or standards of
conduct concerning any Hazardous Material (collectively, “Environmental Laws”), except
where such non-compliance with Environmental Laws could not, singly or in the aggregate,
reasonably be expected to 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 Environmental Law;
(z) each of the Company and its Significant Subsidiaries owns or possesses the right
to use the patents, patent licenses, trademarks, service marks, trade names, copyrights
and know-how (including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures) (collectively, the “Intellectual
Property”) reasonably necessary to carry on the business conducted by each as conducted on
the date hereof, except to the extent that the failure to own or possess the right to use
such Intellectual Property could not, singly or in the aggregate, reasonably be expected
to have a Material Adverse Effect, and, except as set forth or incorporated by reference
in the Time of Sale Information and Final Memorandum, neither the Company nor any
Significant Subsidiary has received any notice of infringement of or conflict with
asserted rights of others with respect to any Intellectual Property, except for notices
the content of which if accurate could not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect;
(aa) the Company and each of its Significant Subsidiaries have all licenses,
franchises, permits, authorizations, approvals and orders of and from all governmental and
regulatory officials and bodies that are
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necessary to own or lease and operate their
properties and conduct their businesses as described in the Time of Sale Information and
the Final Memorandum and that are material in relation to the business of the Company and
its subsidiaries, taken as a whole;
(bb) each of the Company and its Significant Subsidiaries has good and marketable
title in fee simple to all real property and good and marketable title to all personal
property owned by them which is material to the business of the Company and its
Significant Subsidiaries, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Time of Sale Information and the Final
Memorandum or such as do not interfere with the use made and proposed to be made of such
property by the Company and its Significant Subsidiaries and would not have a material
adverse effect on the Company and its Significant Subsidiaries, taken as a whole; and any
real property and buildings held under lease by the Company and its Significant
Subsidiaries are held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its Significant Subsidiaries, in
each case except as described in the Time of Sale Information and the Final Memorandum;
(cc) the Company is in compliance with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including the regulations and
published interpretations thereunder (“ERISA”), except where the failure to be in such
compliance would not, individually or in the aggregate, have a Material Adverse Effect; no
“reportable event” (as defined in ERISA) has occurred with respect to any “defined benefit
plan” (as defined in ERISA) for which the Company would have any liability, except where
such liability would not, individually or in the aggregate, have a Material Adverse
Effect; except for matters that would not, individually or in the aggregate, have a
Material Adverse Effect, the Company has not incurred and does not expect to incur
liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any “defined benefit plan” or (ii) Section 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published interpretations thereunder
(“Code”); and each “defined benefit plan” for which the Company and each of its
subsidiaries would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which would reasonably be expected cause the loss
of such qualification; and no “prohibited transaction” (as defined in Section 406 of ERISA
or Section 4975 of Code or
14
“accumulated funding deficiency” (as defined in section 302 of
ERISA) has occurred;
(dd) (i) the Company and each of its Significant Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management’s general or specific
authorization; (B) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to assets is permitted only in accordance
with management’s general or specific authorization; and (D) the recorded accountability
for assets is compared with existing assets at reasonable intervals and appropriate action
is taken with respect to any differences, and (ii) the Company maintains a system of
“disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the
Exchange Act);
(ee) the information set forth in the Form 10-K for the fiscal year ended February
26, 2005 under Item 1(c) “Narrative Description of Business” is, as of the date it was
filed with the Commission, correct in all material respects and fairly and correctly
presents the information called for with respect thereto in all material respects; and
(ff) the Company is in substantial compliance with the applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002 that are effective.
5. Covenants of the Company. The Company and each of the Guarantors covenants and agrees with
the Initial Purchaser as follows:
(a) the Company will deliver to the Initial Purchaser as many copies of the
Preliminary Memorandum and the Final Memorandum (including all amendments and supplements
thereto) as the Initial Purchaser may reasonably request;
(b) before distributing any amendment or supplement to the Time of Sale Information
or the Final Memorandum, the Company will furnish to the Initial Purchaser a copy of the
proposed amendment or supplement for review and not to distribute any such proposed
amendment or supplement to which the Initial Purchaser reasonably objects;
(c) if, at any time prior to the completion of the initial placement of the
Securities by the Initial Purchaser, any event shall occur as a result of which it is
necessary in the opinion of the Initial Purchaser to amend or supplement the Time of Sale
Information or the Final Memorandum in order that the Time of Sale Information or the
Final Memorandum will not
15
include 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 when the Time of Sale Information or the Final Memorandum is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the Time of Sale
Information or the Final Memorandum to comply with law, the Company will forthwith prepare
and furnish, at the expense of the Company, to the Initial Purchaser and to the dealers
(whose names and addresses the Initial Purchaser will furnish to the Company) to which
Securities may have been sold by the Initial Purchaser and to any other dealers upon
request, such amendments or supplements to the Time of Sale Information or the Final
Memorandum as may be necessary to correct such untrue statement or omission or so that the
statements in the Time of Sale Information or the Final Memorandum as so amended or
supplemented will comply with applicable law;
(d) the Company will endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Initial Purchaser shall
reasonably request and to continue such qualification in effect so long as reasonably
required for distribution of the Securities and to pay all fees and expenses (including
fees and disbursements of counsel to the Initial Purchaser) reasonably incurred in
connection with such qualification and in connection with the determination of the
eligibility of the Securities for investment under the laws of such jurisdictions as the
Initial Purchaser may designate; provided that the Company shall not be required to file a
general consent to service of process in any jurisdiction or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified;
(e) without the prior written consent of X.X. Xxxxxx Securities Inc., the Company
will not, during the period ending 90 days after the date of the Final Memorandum, (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right (excluding rights under a
shareholder rights plan) or warrant to purchase, lend, or otherwise transfer or dispose
of, directly or indirectly, any shares of Common Stock or any securities convertible into
or exercisable or exchangeable for Common Stock, (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock or (iii) file with the Commission a
registration statement under the Securities Act relating to any additional shares of its
Common Stock or securities convertible into, or exchangeable for, any shares of its Common
Stock, or publicly disclose the intention to effect any transaction described in clause
(i), (ii) or (iii), whether any such transaction described in clause (i) or (ii)
16
above is
to be settled by delivery of Common Stock or such other securities, in cash or otherwise;
provided that the foregoing shall not apply to the Company’s (A) sale of the Securities
under this Agreement or the issuance of the Underlying Securities or Subsidiary
Guarantees, (B) issuance and sale of Common Stock and the filing of related registration
statements pursuant to the Plans, (C) issuance of Common Stock issuable upon the exercise
of warrants or the conversion of securities outstanding on the date hereof, (D) entering
into the convertible note hedge transaction concurrently with the pricing of the
Securities and (E) filing of any registration statement in respect of the Securities, the
Underlying Securities and the Subsidiary Guarantees;
(f) the Company will use the net proceeds received by the Company from the sale of
the Securities pursuant to this Agreement in the manner specified in the Time of Sale
Information and the Final Memorandum under the caption “Use of Proceeds”;
(g) during the period from the Closing Date until two years after the Closing Date,
or the Option Closing Date, if applicable, without the prior written consent of the
Initial Purchaser, the Company will not, and will not permit any of its “affiliates” (as
defined in Rule 144 under the Securities Act) to, resell any of the Securities, Underlying
Securities or the Subsidiary Guarantees which constitute “restricted securities” under
Rule 144 that have been reacquired by any of them;
(h) whether or not the transactions contemplated in this Agreement are consummated or
this Agreement is terminated, the Company will pay or cause to be paid all costs and
expenses incident to the performance of its obligations hereunder, including without
limiting the generality of the foregoing, all fees, costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the Securities, including
any expenses of the Trustee, (ii) incident to the preparation, printing and distribution
of the Preliminary Memorandum, Time of Sale Information and the Final Memorandum
(including in each case all exhibits, amendments and supplements thereto), (iii) incurred
in connection with the registration or qualification and determination of eligibility for
investment of the Securities under the laws of such jurisdictions as the Initial Purchaser
may designate (including fees of counsel for the Initial Purchaser and their
disbursements), (iv) in connection with the admission for trading of the Securities on any
securities exchange or inter-dealer quotation system (as well as in connection with the
admission of the Securities for trading in the Private Offerings, Resales and Trading
through Automatic Linkages (“PORTAL”) system of the National Association of Securities
Dealers,
17
Inc. or any appropriate market system), (v) related to any filing with the
National Association of Securities Dealers, Inc., (vi) in connection with the printing
(including word processing and duplication costs) and delivery of this Agreement, the
Indenture, the Preliminary and Supplemental Blue Sky Memoranda and any Legal Investment
Survey and the furnishing to Initial Purchaser and dealers of copies of the Preliminary
Memorandum and the Final Memorandum, including mailing and shipping, as herein provided,
(vii) payable to rating agencies in connection with the rating of the Securities, (viii)
in connection with the listing of the Underlying Securities on the New York Stock
Exchange, and (ix) any expenses incurred by the Company in connection with a “road show”
presentation to potential investors (it being understood that, except as expressly set
forth in this Section 5(i) and elsewhere in this Agreement (including, but not limited to,
Sections 7 and 10 hereof), the Company shall have no obligation to pay any costs and
expenses of the Initial Purchaser);
(i) while the Securities remain outstanding and 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 Section 13 or 15(d) under the Exchange Act, make
available to the purchasers and any holder of Securities in connection with any sale
thereof and any prospective purchaser of Securities and securities analysts, in each case
upon request, the information specified in, and meeting the requirements of, Rule
144A(d)(4) under the Securities Act (or any successor thereto);
(j) the Company will not take any action prohibited by Regulation M under the
Exchange Act, in connection with the distribution of the Securities contemplated hereby;
(k) none of the Company, any of its affiliates (as defined in Rule 501(b) under the
Securities Act) or any person acting on behalf of the Company or such affiliate will
solicit any offer to buy or offer or sell the Securities, the Underlying Securities or the
Subsidiary Guarantees by means of any form of general solicitation or general advertising
within the meaning of Regulation D, including: (i) any advertisement, article, notice or
other communication published in any newspaper, magazine or similar medium or broadcast
over television or radio; and (ii) any seminar or meeting whose attendees have been
invited by any general solicitation or general advertising;
(l) none of the Company, any of its affiliates (as defined in Rule 501(b) under the
Securities Act) or any person acting on behalf of the Company or such affiliate will sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect of any security
(as defined in the Securities Act) which will be integrated with the sale of the
Securities, the
18
Underlying Securities or the Subsidiary Guarantees in a manner which would
require the registration under the Securities Act of the Securities, Underlying Securities
or the Subsidiary Guarantees, and the Company will take all action that is appropriate or
necessary to assure that its offerings of other securities will not be integrated for
purposes of the Securities Act with the offering contemplated hereby;
(m) prior to any registration of the Securities pursuant to the Registration Rights
Agreement, or at such earlier time as may be so required, to qualify the Indenture under
the Trust Indenture Act of 1939, as amended (the “TIA”), and to enter into any necessary
supplemental indentures in connection therewith;
(n) the Company will use its best efforts to cause the Securities to be eligible for
trading on PORTAL;
(o) the Company will reserve and keep available at all times, free of preemptive
rights, shares of Common Stock for the purpose of enabling the Company to satisfy all
obligations to issue the Underlying Securities upon conversion of the Securities;
(p) the Company will use its reasonable best efforts to cause all shares of the
Underlying Securities to be listed on the New York Stock Exchange in accordance with its
rules and regulations; and
(q) no later than 5 business days after the Closing Date, an application for the
listing of the Underlying Securities will be submitted to the New York Stock Exchange.
6. Conditions to the Initial Purchaser’s Obligations. The obligations of the Initial
Purchaser hereunder to purchase the Firm Securities on the Closing Date are subject to the
performance by the Company and each of the Guarantors of its obligations hereunder and to the
following additional conditions:
(a) the representations and warranties of the Company and each of the Guarantors
contained herein are true and correct on and as of the Closing Date as if made on and as
of the Closing Date and the Company and each of the Guarantors shall have complied with
all agreements and all conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date;
(b) subsequent to the execution and delivery of this Agreement and prior to the
Closing Date, except for any downgrading by Xxxxx’x in conformity with the downgrading by
S&P on February 7, 2006, there shall not have occurred any downgrading, nor shall any
notice have been given
19
of (i) any intended or potential downgrading or (ii) any review or
possible change that does not indicate an improvement in the rating accorded any
securities (excluding the Securities) of or guaranteed by the Company by any “nationally
recognized statistical rating organization”, as such term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(c) since the respective dates as of which information is given in the Time of Sale
Information and the Final Memorandum (excluding any amendment or supplement thereto after
the date hereof), there shall not have been (i) any change in the capital stock, except in
connection with the Plans, or long-term debt of the Company or any of the subsidiaries or
any material adverse change, or any development involving a prospective material adverse
change, in or affecting the business, its financial condition, management or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise than as set
forth in the Time of Sale Information and the Final Memorandum; or (ii) any suspension or
material limitation of trading in the capital stock of the Company on the New York Stock
Exchange, the effect of which in the judgment of the Initial Purchaser makes it
impracticable or inadvisable to proceed with the offering or the delivery of the
Securities on the Closing Date on the terms and in the manner contemplated in the Time of
Sale Information and the Final Memorandum;
(d) the Initial Purchaser shall have received on and as of the Closing Date a
certificate of an executive officer of the Company, with specific knowledge about the
Company’s financial matters, satisfactory to the Initial Purchaser to the effect set forth
in Sections 6(a) and 6(b) and to the further effect that there has not occurred any
material adverse change, or any development involving a prospective material adverse
change, in or affecting the business, financial position, stockholders’ equity or results
of operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Information and the Final Memorandum;
(e) Xxxxxxxx Xxxxxxxx & Xxxxxx P.C., outside counsel for the Company, shall have
furnished to the Initial Purchaser their written opinion, dated the Closing Date, in form
and substance satisfactory to the Initial Purchaser, to the effect that:
(i) the Company and each of the Guarantors has been duly incorporated or
formed and is validly existing as a corporation, limited liability company,
partnership, liability partnership or statutory trust, in good standing under the
laws of its jurisdiction of incorporation, with the corporate, limited liability
company, partnership, limited partnership or statutory trust, as the case may be,
power and authority to own its properties and conduct
20
its business as described
in the Time of Sale Information and the Final Memorandum;
(ii) the Company and each of the Guarantors has all requisite corporate,
limited liability company, partnership, limited partnership or statutory trust,
as the case may be, power and authority to execute and deliver this Agreement and
the Registration Rights Agreement and to perform its obligations thereunder; the
execution, delivery and performance of this Agreement and the Registration Rights
Agreement by the Company and each of the Guarantors have been duly authorized by
all necessary corporate action on the part of the Company and each of the
Guarantors; this Agreement has been duly and validly executed and delivered by
the Company and each of the Guarantors; and the Registration Rights Agreement has
been duly and validly executed and delivered by the Company and each of the
Guarantors and (assuming the due authorization, execution and delivery thereof by
the Initial Purchaser) constitutes the legal, valid and binding obligation of the
Company and each of the Guarantors, enforceable against the Company and each of
the Guarantors in accordance with its terms subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors’ rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity);
(iii) Each of the Guarantors has all requisite corporate, limited liability
company, partnership, limited partnership or statutory trust, as the case may be,
power and authority to execute, issue and deliver the Subsidiary Guarantees and
perform its obligations thereunder. The Subsidiary Guarantees have been duly
authorized by each of the Guarantors and when the Subsidiary Guarantees are duly
endorsed on the Securities in accordance with the terms of the Indenture and
delivered to and paid for by the Initial Purchaser pursuant to this Agreement on
the Closing Date, assuming due authorization of the Securities by the Trustee,
such Subsidiary Guarantees will constitute legally valid and binding obligations
of the respective Guarantors, entitled to the benefits of the Indenture and
enforceable against the respective Guarantors in accordance with their terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors’ rights and
remedies generally, and
21
subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or in
equity);
(iv) the authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Time of Sale Information and
the Final Memorandum;
(v) the Securities have been duly authorized and, when executed by the
Company and authenticated by the Trustee in accordance with the terms of the
Indenture and delivered to and paid for by the Initial Purchaser in accordance
with the terms of this Agreement, will be legal, valid and binding obligations of
the Company, entitled to the benefits of the Indenture;
(vi) the Underlying Securities reserved for issuance upon conversion of the
Securities have been duly authorized and reserved and, when issued upon
conversion of the Securities in accordance with the terms of the Securities, will
be validly issued, fully paid and non-assessable and the issuance of the
Underlying Securities will not be subject to any preemptive or similar rights
under the Company’s Certificate of Incorporation or Bylaws or under the Delaware
General Corporation Law;
(vii) the Company and each of the Guarantors have all requisite corporate,
limited liability company and statutory trust power and authority to execute and
deliver the Indenture and perform its obligations thereunder; the execution and
delivery of the Indenture have been authorized by all necessary corporate,
limited liability company and statutory trust action on the part of the Company
and each of the Guarantors; the Indenture has been duly executed and delivered by
the Company and each of the Guarantors and (assuming the due authorization,
execution and delivery thereof by the Trustee) constitutes a valid and binding
instrument of the Company and each of the Guarantors, enforceable against the
Company and each of the Guarantors in accordance with its terms subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity);
22
(viii) each of the Indenture, the Registration Rights Agreement, the
Securities, the Underlying Securities and the Subsidiary Guarantees conform in
all material respects to the description thereof contained in the Time of Sale
Information and the Final Memorandum;
(ix) no consent, approval, authorization or qualification of or with any
federal or state court, governmental agency or body is required for the issue and
sale of the Securities and the issuance of the Underlying Securities and
Subsidiary Guarantees or the consummation by the Company of the transactions
contemplated by this Agreement, the Registration Rights Agreement, the Indenture
or the Subsidiary Guarantees (other than federal securities laws, as to which
such counsel expresses no opinion in this paragraph except with respect to the
Company’s obligations under the Registration Rights Agreement, and state
securities or blue sky laws, as to which such counsel expresses no opinion, and
rules and regulations of the New York Stock Exchange);
(x) assuming (i) the representations of the Initial Purchaser, the Company
and each of the Guarantors contained in this Agreement are true, correct and
complete, (ii) compliance by the Initial Purchaser, the Company and each of the
Guarantors with their respective covenants set forth in this Agreement and (iii)
the accuracy of the representations and warranties made in accordance with this
Agreement, Time of Sale Information and the Final Memorandum by purchasers to
whom the Initial Purchaser initially resell the Securities, it is not necessary
in connection with the offer, sale and delivery of the Securities to the Initial
Purchaser pursuant to this Agreement, in the manner contemplated by this
Agreement and described in the Time of Sale Information and the Final Memorandum,
to register the Securities, Underlying Securities and Subsidiary Guarantees under
the Securities Act of 1933, as amended, or to qualify the Indenture under the
Trust Indenture Act of 1939, as amended;
(xi) the Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Time of Sale Information and the Final Memorandum, will not be required to
register as an “investment company” as defined in the Investment Company Act of
1940, as amended;
(xii) when the Securities are issued and delivered pursuant to this
Agreement, none of the Securities will be of the same class
23
(within the meaning
of Rule 144A under the Securities Act) as securities of the Company that are
listed on a national securities exchange registered under Section 6 of the
Exchange Act or that are quoted in a United States automated inter-dealer
quotation system;
(xiii) the statements in the Time of Sale Information and the Final
Memorandum under the captions “Description of notes,” “Description of capital
stock”, “Transfer restrictions,” and “Certain United States federal income tax
considerations”, insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly present in all
material respects the information called for with respect to such legal matters,
documents or proceedings;
(xiv) such counsel believes that (except for the financial statements and
related schedules included therein as to which such counsel need express no
belief) the Time of Sale Information did not, as of the Time of Sale, and does
not as of the Closing Date, and the Final Memorandum did not, as of the date of
this Agreement, and does not as of the Closing Date, contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and
(xv) the issue and sale of the Securities and the issuance by the Company of
the Underlying Securities upon conversion of the Securities and the performance
by the Company and each of the Guarantors of its obligations under the
Securities, the Indenture, the Registration Rights Agreement, Subsidiary
Guarantees and this Agreement and the consummation of the transactions herein and
therein contemplated will not result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument filed by the
Company with the Commission and listed in the exhibit list to its Annual Report
on Form 10-K for the fiscal year ended February 26, 2005, or filed with any other
report on Form 10-Q or Form 8-K since such date, nor will any such action result
in any violation of the provisions of the Certificate of Incorporation, Bylaws or
other organizational documents of the Company or any applicable law or statute or
any order, rule or regulation of any court or governmental agency or
24
body having
jurisdiction over the Company, its domestic Significant Subsidiaries or any of
their respective properties.
In rendering such opinions, such counsel may rely (A) as to matters involving the
application of laws other than the laws of the United States and the States of Texas and
Delaware, to the extent such counsel deems proper and to the extent specified in such
opinion, if at all, upon an opinion or opinions (reasonably satisfactory to the Initial
Purchaser’s counsel) of other counsel reasonably acceptable to the Initial Purchaser’s
counsel, familiar with the applicable laws; and (B) as to matters of fact, to the extent
such counsel deems proper, on certificates of responsible officers of the Company and
certificates or other written statements of officials of jurisdictions having custody of
documents respecting the corporate existence or good standing of the Company. With
respect to the matters to be covered in subparagraph (xiv) above, counsel may state their
opinion and belief is based upon their participation in the preparation of the Time of
Sale Information and the Final Memorandum and any amendment or supplement thereto but is
without independent check or verification except as specified.
(f) Corporate Counsel of the Company, shall have furnished to the Initial Purchaser
his written opinion, dated the Closing Date, in form and substance satisfactory to the
Initial Purchaser, to the effect that:
(i) the Company 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, other than where the failure to be so qualified
or in good standing would not have a Material Adverse Effect;
(ii) each of the Company’s domestic Significant Subsidiaries has been duly
organized or formed and is validly existing as a corporation, limited liability
company, partnership, limited partnership or statutory trust under the laws of
its jurisdiction of incorporation with power and authority (corporate and other)
to own its properties and conduct its business as described in the Time of Sale
Information and the Final Memorandum and, as applicable, 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, other than where
the failure to be so qualified and in good standing would not have a Material
Adverse Effect; and all of the outstanding shares of capital stock of each
Significant
25
Subsidiary have been duly and validly authorized and issued, are
fully paid and non-assessable, and (except in the case of foreign subsidiaries,
for directors’ qualifying shares) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(iii) to the best of such counsel’s knowledge after diligent inquiry, other
than as set forth, incorporated by reference or contemplated in the Time of Sale
Information and the Final Memorandum, there are no legal or governmental
proceedings pending or threatened to which the Company or any of its Significant
Subsidiaries is or may be a party or to which any property of the Company or its
Significant Subsidiaries is or may be the subject which, if determined adversely
to the Company or such subsidiaries, could individually or in the aggregate
reasonably be expected to have a Material Adverse Effect;
(iv) the issue and sale of the Securities and the issuance by the Company of
the Underlying Securities upon conversion of the Securities and the performance
by the Company and each of the Guarantors of its obligations under the
Securities, the Indenture, the Registration Rights Agreement, Subsidiary
Guarantees and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument filed by
the Company with the Commission and listed in the exhibit list to its Annual
Report on Form 10-K for the fiscal year ended February 26, 2005, or filed with
any other report on Form 10-Q or Form 8-K since such date, nor will any such
action result in any violation of the provisions of the Certificate of
Incorporation, Bylaws or other organizational documents of the Company or any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, its domestic
Significant Subsidiaries or any of their respective properties;
(v) the shares of Common Stock outstanding on the Closing Date have been
duly authorized and are validly issued, fully paid and non-assessable; and
(vi) such counsel is of the opinion that each document incorporated by
reference in the Time of Sale Information and the Final Memorandum (except for
the financial statements and related schedules included therein as to which such
counsel need express
26
no opinion) complied as to form when filed with the
Commission in all material respects with the Exchange Act and the rules and
regulations of the Commission thereunder.
(g) on the date of the issuance of the Final Memorandum and also on the Closing Date,
Ernst & Young LLP shall have furnished to the Initial Purchaser letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to you,
containing statements and information of the type customarily included in accountants
“comfort letters” to underwriters with respect to the financial statements and certain
financial information contained in the Offering Memorandum;
(h) the Initial Purchaser shall have received on and as of the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, counsel to the Initial Purchaser, in form and substance
satisfactory to you.
(i) the “lock-up” agreements, each substantially in the form of Exhibit A hereto,
between you and the Company, its officers and its directors identified on Exhibit A-1
relating to sales and certain other dispositions of shares of Common Stock or certain
other securities, delivered to you on or before the Closing Date, shall be in full force
and effect on the Closing Date.
(j) the Securities shall have been approved for trading on PORTAL, subject only to
notice of issuance at or prior to the time of purchase.
(k) on or prior to the Closing Date the Company shall have furnished to the Initial
Purchaser such further certificates and documents as the Initial Purchaser or its counsel
shall reasonably request.
The obligations of the Initial Purchaser to purchase Additional Securities hereunder are
subject to the delivery to you on the Option Closing Date of such documents as you may reasonably
request including with respect to the good standing of the Company and each of the Guarantors, the
due authorization, execution, authentication and issuance of the Additional Securities and other
matters related to the execution, authentication and issuance of the Additional Securities.
7. Indemnity and Contribution. The Company and each of the Guarantors agree to jointly and
severally indemnify and hold harmless the Initial Purchaser and each person, if any, who controls
the Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act, from and against any and all losses, claims, damages and liabilities
(including without limitation the legal fees and other expenses incurred in connection with
27
any
suit, action or proceeding or any claim asserted) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Memorandum (and any amendment or
supplement thereto), the Time of Sale Information or the Final Memorandum (and any amendment or
supplement thereto if the Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information relating to the
Initial Purchaser furnished to the Company in writing the Initial Purchaser expressly for use
therein.
The Initial Purchaser agrees to indemnify and hold harmless the Company and each of the
Guarantors and its directors, its officers and each person who controls the Company and each of the
Guarantors within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Company and each of the Guarantors to
the Initial Purchaser, but only with reference to information relating to the Initial Purchaser
furnished to the Company and each of the Guarantors in writing by the Initial Purchaser expressly
for use in the Time of Sale Information and the Final Memorandum or any amendment or supplement
thereto.
If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any person in respect of which indemnity may
be sought pursuant to either of the two preceding paragraphs, such person (the “Indemnified
Person”) shall promptly notify the person against whom such indemnity may be sought (the
“Indemnifying Person”) in writing, and the Indemnifying Person, upon request of the Indemnified
Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding. In any such
proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory
to the Indemnified Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable
for the fees and expenses of more
28
than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred.
Any such separate firm for the Initial Purchaser and such control persons of the Initial Purchaser
shall be designated in writing by the Representatives and any such separate firm for the Company,
its directors, its officers and such control persons of the Company shall be designated in writing
by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any Indemnified Person from
and against any loss or liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an Indemnifying
Person to reimburse the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such Indemnifying Person of the aforesaid request and the
terms of the proposed settlement and (ii) such Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or
could have been a party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding on terms reasonably satisfactory
to such Indemnified Person.
If the indemnification provided for in the first and second paragraphs of this Section 7 is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and each of
the Guarantors on the one hand and the Initial Purchaser on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and each of the Guarantors on the one
hand and the Initial Purchaser on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and each of the Guarantors on the
one hand and the Initial Purchaser on
29
the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Securities (excluding discounts and
commissions, but before deducting expenses) received by the Company and the total discounts and
commissions received by the Initial Purchaser bear to the aggregate offering price of the
Securities. The relative fault of the Company and each of the Guarantors on the one hand and the
Initial Purchaser on the other 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 relates to information supplied by the Company and each of the Guarantors or by the
Initial Purchaser and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, each of the Guarantors and the Initial Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or
by any other method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this Section 7, in no event
shall the Initial Purchaser be required to contribute any amount in excess of the amount by which
the total price at which the Securities purchased by it were offered exceeds the amount of any
damages that the Initial Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 7 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and the representations
and warranties of the Company and each of the Guarantors set forth in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Initial Purchaser or any person controlling the
Initial Purchaser or by or on behalf of the Company and each of the Guarantors, its officers or
directors or any other person controlling the Company and each of the Guarantors and (iii)
acceptance of and payment for any of the Securities.
30
8. Termination. Notwithstanding anything herein contained, this Agreement may be terminated
in the absolute discretion of the Initial Purchaser, by notice given to the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall
have been suspended or materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of or guaranteed by the Company shall have been suspended on any exchange
or in any over-the-counter market, (iii) a general moratorium on commercial banking activities in
New York shall have been declared by either Federal or New York State authorities, or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in financial markets or
any calamity or crisis that, in the judgment of the Initial Purchaser, is material and adverse and
which, in the judgment of the Initial Purchaser, makes it impracticable to offer, sell or deliver
the Securities on the terms and in the manner contemplated in the Time of Sale Information or the
Final Memorandum or to enforce contracts for the sale of the Securities.
9. Effectiveness. This Agreement shall become effective upon the execution and delivery
hereof by the parties hereto.
10. Reimbursement. If this Agreement shall be terminated by the Initial Purchaser, because of
any failure or refusal on the part of the Company or any of the Guarantors to comply with the terms
or to fulfill any of the conditions of this Agreement, other than due to the Initial Purchaser’s
material breach of this Agreement, or if for any reason the Company or any of the Guarantors shall
be unable to perform its obligations under this Agreement or any condition of the Initial
Purchaser’s obligations cannot be fulfilled, other than due to the Initial Purchaser’s material
breach of this Agreement, the Company and each of the Guarantors agree to reimburse the Initial
Purchaser for all out-of-pocket expenses (including the reasonable fees and expenses of their
outside counsel) incurred by the Initial Purchaser in connection with this Agreement or the
offering contemplated hereunder.
11. Parties. This Agreement shall inure to the benefit of and be binding upon the Company,
each of the Guarantors, the Initial Purchaser, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any other person, firm or corporation any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein contained. No
purchaser of Securities from the Initial Purchaser shall be deemed to be a successor by reason
merely of such purchase.
31
12. Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Initial Purchaser shall be given to X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telefax: (000) 000-0000); Attention: Syndicate
Desk. Notices to the Company and the Guarantors shall be given to it at Pier 1 Imports, Inc.,
Attention: Executive Vice President and Chief Financial Officer, 000 Xxxx 0 Xxxxx, Xxxx Xxxxx,
Xxxxx 00000 (telefax: (000) 000-0000).
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
14. Counterparts. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
32
If the foregoing is in accordance with your understanding, please sign and return four
counterparts hereof.
Very truly yours, THE COMPANY PIER 1 IMPORTS, INC. |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Executive Vice President - Finance,
Chief Financial Officer and Treasurer |
|||
THE GUARANTORS PIER 1 ASSETS, INC. |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Executive Vice President,
Chief Financial Officer and Treasurer |
|||
PIER 1 KIDS, INC. |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Executive Vice President | |||
PIER 1 LICENSING, INC. |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Executive Vice President, Chief Financial
Officer and Treasurer |
|||
PIER 1 IMPORTS (U.S.), INC. |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Executive Vice President and Chief
Financial Officer |
PIER 1 VALUE SERVICES, LLC | ||||||||
By: | Pier 1 Imports (U.S.), Inc., | |||||||
its sole member and manager | ||||||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
Title: Executive Vice President and
Chief
Financial Officer |
||||||||
PIER 1 HOLDINGS, INC. |
By: | /s/ Xxxxxxx X. Xxxxxx | |||||
Title: Executive Vice President and
Chief
Financial Officer |
||||||
PIER 1 SERVICES COMPANY, | ||||||
a Delaware statutory trust |
By: | Pier 1 Holdings, Inc., | |||||||||
its managing trustee | ||||||||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||||||||
Title: Executive Vice President and
Chief Financial Officer |
The foregoing Purchase Agreement | ||||
is hereby confirmed and accepted | ||||
as of the date first above written. | ||||
X.X. XXXXXX SECURITIES INC. | ||||
By: |
/s/ Xxxxxxx Xxxxxxxxxxx | |||
Title: Vice President |
SCHEDULE I
Time of Sale Information
EXHIBIT A
[FORM OF LOCK-UP LETTER]
February __, 2006
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that X.X. Xxxxxx Securities Inc. (the “Initial Purchaser”)
proposes to enter into a Purchase Agreement (“Purchase Agreement”) with Pier 1 Imports Inc., a
Delaware corporation (the “Company”), providing for the offering (the “Offering”) by the Initial
Purchaser of Convertible Senior Notes due 2036 (the “Securities”). The Securities will be
convertible into shares of common stock of the Company, par value $1.00 per share (the “Common
Stock”).
To induce the Initial Purchaser that may participate in the Offering to continue its efforts
in connection with the Offering, the undersigned hereby agrees that, without the prior written
consent of the Initial Purchaser, it will not, during the period commencing on the date hereof and
ending 90 days after the date of the final offering memorandum relating to the Offering (the “Final
Memorandum”), (1) offer, pledge, sell contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into any
swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (a) transfers of Common Stock as a bona fide
gift, including without limitation transfers by gift, will or intestacy to family members of the
undersigned or to a settlement, trust, family partnership or similar entity established under the
laws of any country for the direct or indirect benefit of the undersigned or (b) the cashless
exercise of options to purchase Common Stock that are outstanding on the date of the Purchase
Agreement or the issuance of Common Stock, deferred stock units, restricted stock or options after
such date under the Company’s Plans (as defined in the Purchase Agreement) provided that in the
event of any transfer pursuant to clause (a), the transferee shall enter into a lock-up agreement
substantially in the form of this Letter Agreement covering the remainder of the 90-day period
referred to herein. In addition, the undersigned agrees that, without the prior written consent of
the Initial Purchaser, it will not, during the period commencing on the date hereof and ending 90
days after the date of the Final Memorandum,
make any demand for or exercise any right with respect
to, the registration of any shares of Common Stock or any security convertible into or exercisable
or exchangeable for Common Stock. The undersigned also agrees and consents to the entry of stop
transfer instructions with the Company’s transfer agent and registrar against the transfer of the
undersigned’s shares of Common Stock except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Initial Purchaser are relying upon this
Letter Agreement in proceeding toward consummation of the Offering. The undersigned further
understands that this Letter Agreement is irrevocable and shall be binding upon the undersigned’s
heirs, legal representatives, successors and assigns. Notwithstanding the foregoing, it is agreed
and understood that, in addition to the above exceptions, the Company’s executive officers and
directors shall be permitted to transfer an aggregate of up to 250,000 shares without any
restrictions.
Whether or not the Offering actually occurs depends on a number of factors, including market
conditions. Any offering will only be made pursuant to a Purchase Agreement, the terms of which
are subject to negotiation between the Company and the Initial Purchaser.
Very truly yours, | ||||
(Address) |
EXHIBIT A-1
PERSONS SUBJECT TO LOCK-UP
Directors:
|
Xxxxxx X. Xxxxxxxx | |
Xxxx X. Xxxxxxxx | ||
Xxxxxxx X. Xxxxxxx | ||
Xxxxx X. Xxxx, Xx. | ||
Xxxxx X. Xxxx | ||
Xxxxx X. London | ||
Xxx X. Xxxxxx | ||
Officers:
|
Xxxxxx X. Xxxxxxxx, Chairman, President and CEO | |
Xxxxxxx X. Xxxxxx, Executive V.P.-Finance, CFO and Treasurer | ||
Xxxxxxx X. Xxxxxxxxx, Executive V.P. – Human Resources | ||
Xxx X. Xxxxxx, Executive V.P. — Merchandising | ||
Xxxx X. Xxxxxxxxx, Executive V.P. — Marketing | ||
Xxxxx X. Xxxxxx, Executive V.P. — Logistics and Allocations | ||
E. Xxxxxxxx Xxxxxxxxx, Executive V.P. — Stores |
||
Xxxxx X. Xxxxxx, Senior V.P. — Controller | ||
Xxxxxxx X. Xxxxxx — Senior V.P. and General Counsel, Secretary |