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XXXXXX XXXXXXXXXXX
8-1/4% Convertible Subordinated Notes
Standby Agreement
New York, New York
October 7, 1997
Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Xxxxxxxxxxx, a Delaware corporation (the "Company"),
intends to call for redemption on October 27, 1997 (the "Redemption Date"), all
of its outstanding 8-1/4% Convertible Subordinated Notes due 2000 (the "Notes")
at a redemption price of $1,032.50 per $1,000 principal amount of Notes, plus
accrued interest of $19.7083 from August 1, 1997 to the Redemption Date, for a
total redemption price of $1052.2083 per $1,000 principal amount of Notes (the
"Redemption Price"). The Notes are convertible into shares of common stock, $.01
par value per share (the "Common Stock"), of the Company at any time prior to
5:00 p.m., New York City time, on the Redemption Date (the "Conversion
Expiration Time").
In order to ensure that the Company will have available
sufficient funds to redeem any Notes not converted prior to the Conversion
Expiration Time, the Company desires to make arrangements pursuant to which
Salomon Brothers Inc (the "Purchaser") will, following the Conversion Expiration
Time, purchase shares of Common Stock that would have been issuable upon the
conversion of the Notes that have not been surrendered for conversion prior to
the Conversion Expiration Time.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Purchaser as set forth below in this Section
1. Certain terms used in this Section 1 are defined in Section 1(g) below.
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations promulgated thereunder, and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement (file number
333-20373) on such Form, including a Basic Prospectus dated February 18, 1997
relating to the Debt Securities, Common Stock, Preferred Stock and Warrants of
the Company. The Company may have filed one or more amendments thereto, and may
have used a Preliminary Prospectus, each of which previously has been provided
to you. Such registration statement, as so amended, has become effective.
Although the Basic Prospectus may not include all the information with respect
to the Securities and the offering thereof required by the Act and the rules
thereunder to be included in the Final Prospectus, the Basic Prospectus includes
all such information required by the Act and the rules thereunder to be included
therein as of the Effective Date. The Company will next file with
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the Commission pursuant to Rule 424(b)(2) or (5) a preliminary prospectus
supplement to the Basic Prospectus related to the offering by the Company of the
shares of Common Stock issuable upon conversion by the Purchaser of Notes and
the sale by the Purchaser of any shares of Common Stock that may be acquired by
it as contemplated by this Standby Agreement (this "Standby Agreement" or this
"Agreement"). As filed, the Preliminary Final Prospectus shall contain all
required information with respect to the Securities and the offering thereof
and, except to the extent the Purchaser shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to you
prior to the Execution Time.
(b) On the Effective Date, the Registration Statement did, and
when each of the Preliminary Final Prospectus and Final Prospectus is first
filed (if required) in accordance with Rule 424(b), on the Redemption Date and
on the Closing Date, the Preliminary Final Prospectus and Final Prospectus (and
any supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the respective rules and regulations
thereunder; on the Effective Date, the Registration Statement did not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and the Preliminary Final Prospectus and Final
Prospectus will not, as of their respective dates, on the Redemption Date and on
the Closing Date, include 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 the Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement or the Final
Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of the Purchaser specifically for
inclusion therein.
(c) The Notes are convertible into Common Stock at a rate of
97.6801 shares of Common Stock per $1,000 principal amount of Notes. As of the
close of business on October 3, 1997, there were outstanding $344,864,000
aggregate principal amount of Notes and the Company has duly authorized the
redemption of all outstanding Notes on the Redemption Date at the Redemption
Price; by the close of business on the date hereof, all the Notes shall have
been duly called for redemption in accordance with the indenture, dated as of
June 1, 1992 (the "Indenture"), between the Company and The Bank of New York, as
Trustee (the "Trustee"); and the right to convert the Notes into shares of
Common Stock will, as a result of such call, expire at the Conversion Expiration
Time. A copy of the form of notice of redemption and the related letter of
transmittal (collectively, the "Notice of Redemption") has been heretofore
delivered to you. The Indenture and the Notes have been duly authorized,
executed and delivered by the Company and constitute legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms.
(d) The Company has neither taken nor will take, directly or
indirectly, any action designed to cause or result in, or that has constituted
or that might reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company to facilitate the
conversion of the Notes.
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(e) The Company has neither paid nor given, nor will pay or
give, directly or indirectly, any commission or other remuneration for
soliciting the conversion of Notes into Common Stock.
(f) None of the execution and delivery by the Company of this
Agreement, the issue and sale of the Securities (as defined in Section 2(b)
hereof), the consummation of any other of the transactions herein contemplated
or the fulfillment of the terms hereof will breach or result in a default under
any law or the charter or by-laws of the Company or the terms of any material
indenture or other material agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or any material judgment, order or decree applicable to
the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction over
the Company or any of its subsidiaries.
(g) The terms that follow, when used in this Agreement, shall
have the meanings indicated. The term "business day" shall have the meaning
ascribed to such term in the Indenture. The term "Effective Date" shall mean
each date that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective and each date after the date
hereof on which a document incorporated by reference into the Registration
Statement is filed. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Basic Prospectus"
shall mean the prospectus referred to in Section 1(a) above contained in the
Registration Statement at the Effective Date. "Preliminary Final Prospectus"
shall mean any preliminary prospectus supplement to the Basic Prospectus,
together with the Basic Prospectus, which describes the Securities and the
offering thereof and is used prior to the filing or use of the Final Prospectus.
"Final Prospectus" shall mean the final prospectus supplement to the Basic
Prospectus, together with the Basic Prospectus (identical in all material
respects to the Preliminary Final Prospectus but specifying the precise number
of Securities acquired by the Purchaser hereunder), that is first used or filed
pursuant to Rule 424(b) after the Execution Time. "Registration Statement" shall
mean the registration statement referred to in Section 1(a) above, including
incorporated documents, exhibits and financial statements, as amended at the
Execution Time and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined), shall also mean
such registration statement as so amended; such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided by
Rule 430A. "Rule 415," "Rule 424," "Rule 430A" and "Regulation S-K" refer to
such rules or regulation under the Act. "Rule 430A Information" means
information with respect to the Securities and the offering thereof permitted to
be omitted from the Registration Statement when it becomes effective pursuant to
Rule 430A. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 that were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include
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the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference.
(h) No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose are
pending before or threatened by the Commission.
(i) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the state of
Delaware, has the corporate power and authority to own its property and to
conduct its business as described in the Final Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the financial
condition, results of operations, business or properties of the Company and its
subsidiaries, taken as a whole.
(j) Each subsidiary listed as a subsidiary in Exhibit 21 to
the Company's Annual Report on Form 10-K for the period ended December 31, 1996
(a "Significant Subsidiary") of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Final Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material adverse effect
on the financial condition, results of operations, business or properties of the
Company and its subsidiaries, taken as a whole.
(k) The Company's capitalization as of June 30, 1997, is as
set forth in the Preliminary Final Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof contained in the
Preliminary Final Prospectus; the outstanding shares of Common Stock have been
duly authorized and validly issued and are fully paid and nonassessable; the
Purchased Securities (as defined in Section 2(b) below) have been duly
authorized and, when issued and delivered to and paid for by the Purchaser
pursuant to this Agreement, will be fully paid and nonassessable and free and
clear of all liens and restrictions on transfer created by the Company; the
shares of Common Stock issuable upon conversion of the Notes have been duly
authorized and, when issued and delivered upon conversion of the Notes in
accordance with the Indenture, will be fully paid and nonassessable and free and
clear of all liens and restrictions on transfer created by the Company; the
Purchased Securities have been, or prior to the Closing will be, and the shares
of Common Stock issuable upon conversion of the Notes have been, duly authorized
for listing, subject to official notice of issuance, on the New York Stock
Exchange; the certificates for the Securities are in valid and sufficient form;
and the holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to
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subscribe for the Purchased Securities or the shares of Common Stock issuable
upon conversion of the Notes.
(l) This Agreement has been duly authorized, executed and
delivered by the Company.
(m) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which the Company or any of its subsidiaries is a party or by which it or any
of its subsidiaries is bound, other than any such violation or default that
would not have a material adverse effect on the financial condition, results of
operations, business or properties of the Company and its subsidiaries, taken as
whole.
(n) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, except such
as may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities.
(o) There has not occurred any material adverse change, or any
development that would reasonably be expected to cause a material adverse
change, in the financial condition, results of operations, business or
properties of the Company and its subsidiaries, taken as a whole, from that set
forth in the Basic Prospectus, and there have been no transactions entered into
by the Company or any of its subsidiaries, other than those in the ordinary
course of business, which are required to be disclosed in the Final Prospectus,
other than those set forth in the Preliminary Final Prospectus.
(p) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject that are required to be described in the
Registration Statement or the Preliminary Final Prospectus and are not so
described or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Preliminary Final
Prospectus (or required to be filed under the Exchange Act if upon such filing
they would be incorporated by reference therein) or to be filed as exhibits to
the Registration Statement that are not described or filed as required.
(q) There are no contracts or documents of the Company or any
of its subsidiaries that are required to be filed as exhibits to the
Registration Statement or to any documents incorporated by reference therein by
the Act or the Exchange Act or by the rules and regulations of the Commission
thereunder that have not been so filed.
2. Purchase of Securities. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth:
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(a) The Purchaser agrees to surrender for conversion
into (or exchange for) Common Stock prior to the Conversion Expiration Time all
Notes purchased by the Purchaser pursuant to Section 4 hereof or otherwise held
by the Purchaser. The shares of Common Stock issued to the Purchaser upon the
conversion or exchange of Notes are referred to as the "Conversion Securities."
(b) If any Notes have not been surrendered for
conversion prior to 12:00 noon, New York City time, on the Redemption Date, then
at the option of the Company, by giving notice in writing to the Purchaser not
later than 12:30 p.m. (which date and time may be postponed by agreement between
the Purchaser and the Company) on the Redemption Date, the Company shall sell to
the Purchaser, and the Purchaser shall purchase from the Company, at a purchase
price of $10.7720 per share, such number of shares of Common Stock, subject to
the adjustments described below, as shall be specified in such notice (but not
in excess of such number of shares of Common Stock as would have been issuable
upon the conversion of all Notes not surrendered for conversion prior to 12:00
noon). Payment for such shares by the Purchaser shall be made by 1:15 p.m., New
York City time, on the Redemption Date by wire transfer to an account at The
Bank of New York payable in same-day funds, which date and time may be postponed
by agreement between the Purchaser and the Company (such date and time of
payment for such securities being herein called the "Closing Date").
No later than 10:00 a.m., New York City time, on the
business day immediately following the Closing Date (the "Share Delivery Date"),
the Company shall (i) certify to the Purchaser, which certificate shall be
confirmed as to accuracy by The Bank of New York, as to the principal amount of
Notes surrendered for conversion prior to the Conversion Expiration Time and the
principal amount of Notes redeemed as of the Redemption Date, (ii) pay by wire
transfer to an account designated by the Purchaser an amount payable in same-day
funds (the "Adjustment") equal to the excess, if any, of (A) the amount paid by
the Purchaser to the Company on the Closing Date over (B) the aggregate
Redemption Price paid by the Company in respect of Notes redeemed as of the
Redemption Date, (iii) pay by wire transfer to an account designated by the
Purchaser an amount payable in same-day funds equal to the product of (A) the
Adjustment times (B) The Bank of New York's rate on the Closing Date for
overnight funds and (iv) deliver to the Purchaser certificates for such number
of shares of Common Stock as would have been issuable upon conversion of all
Notes not surrendered for conversion prior to the Conversion Expiration Time.
The shares of Common Stock issued to the Purchaser on the Share Delivery Date
pursuant to this Section 2(b) are referred to as the "Purchased Securities" and,
together with the Conversion Securities, the "Securities." Delivery of the
Purchased Securities shall be made on or prior to 10:00 a.m. on the Share
Delivery Date at such location as the Purchaser shall reasonably designate at
least one business day prior thereto. Certificates for the Purchased Securities
shall be registered in such names and in such denominations as the Purchaser may
request. The Company agrees to have the Purchased Securities available for
inspection, checking and packaging by the Purchaser in New York, New York, at
such place and time as the Company and the Purchaser shall agree.
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(c) It is understood that the Purchaser intends to resell the
Securities from time to time at fixed prices, negotiated prices and/or prices
then prevailing in the open market directly to purchasers thereof, through the
facilities of the New York Stock Exchange or otherwise. On or prior to the
fifteenth business day after the Redemption Date, the Purchaser shall remit to
the Company 50% of the excess, if any, of (i) the aggregate proceeds received by
the Purchaser from the sale of Purchased Securities (net of selling concessions,
transfer taxes and other expenses of sale) over (ii) an amount equal to $10.7720
multiplied by the number of Purchased Securities sold by the Purchaser. Upon
completion of the sale of the Purchased Securities, the Purchaser shall furnish
to the Company a statement setting forth the aggregate proceeds received on the
sale thereof and the applicable selling concessions, transfer taxes and other
expenses of sale. For purposes of the foregoing determination, any Purchased
Securities not sold by or for the account of the Purchaser prior to the close of
business on the tenth business day after the Redemption Date shall be deemed to
have been sold on such tenth business day for an amount equal to the last
reported sale price of the Common Stock on such day. Nothing contained herein
shall limit the right of the Purchaser, in its sole discretion, to determine the
price or prices at which, or the time or times when, any Securities shall be
sold, whether or not prior to the Redemption Date and whether or not for long or
short account.
3. Compensation. As compensation for the commitment of the
Purchaser hereunder, the Company will pay to the Purchaser an amount equal to
the sum of (i) $3,628,687 plus (ii) if the aggregate number of Compensable
Shares exceeds 1,684,317 shares, an additional $0.32316 per Compensable Share.
The term "Compensable Shares" means, collectively, (i) Purchased Securities plus
(ii) any Conversion Securities that are acquired by the Purchaser or that the
Purchaser obtained the right to acquire on a date when the last reported sale
price of the Common Stock on the New York Stock Exchange was less than $10.7720
per share.
Such compensation shall be paid to the Purchaser by wire
transfer to an account designated in writing by the Purchaser, payable in
same-day funds, (A) if the Purchaser is required to purchase any Purchased
Securities, not later than 10:00 a.m. on the Share Delivery Date, or (B)
otherwise, as soon as practicable after the Redemption Date (but in no event
later than two business days thereafter).
4. Additional Purchases. The Purchaser may purchase Notes, in
the open market or otherwise, in such amounts and at such prices as the
Purchaser may deem advisable. All Notes so purchased will be converted by the
Purchaser into (or exchanged for) Common Stock in accordance with Section 2(a)
hereof. The Common Stock acquired by the Purchaser upon conversion (or exchange)
of any Notes acquired pursuant to this Section 4 may be sold at any time or from
time to time by the Purchaser. It is understood that, for the purpose of
stabilizing the price of the Common Stock or otherwise, the Purchaser may
undertake transactions involving the Common Stock and the Notes, in the open
market or otherwise, for long or short account, on such terms as they may deem
advisable and they may overallot in arranging sales.
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5. Agreements. The Company agrees with the Purchaser that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the offering
of the Securities, the Company will not file any amendment to the Registration
Statement or supplement (including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus unless the Company has furnished you a copy
for your review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing sentence,
the Company will cause the Preliminary Final Prospectus and the Final
Prospectus, properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the Purchaser of
such timely filing. The Company will promptly advise the Purchaser (i) when the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, shall have become effective, (ii) when the Preliminary Final
Prospectus and the Final Prospectus, and any supplement thereto, shall have been
filed (if required) with the Commission pursuant to Rule 424(b), (iii) when,
prior to termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv) of any
request by the Commission for any amendment of the Registration Statement or
supplement to the Preliminary Final Prospectus or the Final Prospectus or for
any additional information, (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (vi) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose. The Company will use its
reasonable best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Preliminary Final Prospectus or the Final Prospectus as then
supplemented would include any untrue statement of material fact or omit to
state any material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it shall be
necessary to amend the Registration Statement or supplement the Preliminary
Final Prospectus or the Final Prospectus to comply with the Act or Exchange Act
or the respective rules thereunder, the Company promptly will (i) prepare and
file with the Commission, subject to the second sentence of Section 5(a) hereof,
an amendment or supplement that will correct such statement or omission or
effect such compliance and (ii) supply any supplemented Preliminary Final
Prospectus or the Final Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the Purchaser an earnings
statements of the Company and its subsidiaries that will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
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(d) The Company will furnish to the Purchaser and
counsel for the Purchaser, without charge, conformed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a prospectus
by the Purchaser or dealer may be required by the Act, as many copies of each
Preliminary Final Prospectus and the Final Prospectus and any supplement thereto
as the Purchaser may reasonably request. The Company will pay the expenses of
printing or other production of all documents relating to the transactions
contemplated hereby. The Company will pay all transfer taxes as may be imposed
on the Purchaser in connection with its purchase of Notes pursuant hereto.
(e) The Company will arrange for the qualification of
the Securities for sale under the laws of such jurisdictions as the Purchaser
may designate, will maintain such qualifications in effect so long as required
for the distribution of the Securities (or for a period of 120 days after the
Redemption Date, if shorter) and will pay all costs and expenses in connection
therewith, including the fees and disbursements of the Purchaser's counsel in
relation thereto; provided, however, that the Company will not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified.
(f) The Company will mail or cause to be mailed not
later than the business day following the date of execution hereof the Notice of
Redemption by first-class mail to the registered holders of the Notes on such
date, which mailing will conform to the requirements of the Indenture. The
Company will not withdraw or revoke the Notice of Redemption or attempt to do
so.
(g) The Company will direct the Trustee to advise the
Purchaser daily of the amount of Notes surrendered for redemption or for
conversion on the preceding day.
(h) The Company will not take any action the effect of
which would be to require an adjustment in the conversion price of the Notes.
(i) The Company will not, prior to the Redemption Date
(and, if the aggregate number of Securities exceeds 5,052,952 shares, for an
additional period of 90 days following the Redemption Date), without the prior
written consent of the Purchaser (which consent shall not be unreasonably
withheld), offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce or file for the registration of the offering of, any
shares of Common Stock (other than the Purchased Securities and the shares of
Common Stock issuable upon conversion of the Notes) or any securities
convertible into, or exchangeable for, shares of Common Stock; provided,
however, that the Company may issue and sell Common Stock pursuant to any
employee stock option plan, stock ownership plan or dividend reinvestment plan
of the Company in effect at the Execution Time and the Company may issue Common
Stock issuable upon the conversion of securities pursuant to their terms or the
exercise of warrants outstanding at the Execution Time.
(j) The Company will cause its officers and directors to
not, prior to the Closing Date, without the prior written consent of the
Purchaser, offer, sell, or contract to
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sell, or otherwise dispose of, directly or indirectly, or announce or file for
the registration of the offering of, any other shares of Common Stock or any
securities convertible into, or exchangeable for, shares of Common Stock.
(k) The Company confirms as of the date hereof that it
is in compliance with all provisions to Section 1 of Laws of Florida, Chapter
92-198, An Act Relating to Disclosure of Doing Business With Cuba, and the
Company further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba after the
date the Registration Statement becomes or has become effective with the
Commission or with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information reported in the
Final Prospectus, if any, concerning the Company's business with Cuba or with
any person or affiliate located in Cuba changes in any material way, the Company
will provide the Department notice of such business or change, as appropriate,
in a form acceptable to the Department.
6. Conditions to the Obligations of the Purchaser. The
obligations of the Purchaser hereunder to convert Notes into Conversion
Securities and to purchase any Purchased Securities shall be subject to the
accuracy in all material respects of the representations and warranties on the
part of the Company contained herein as of the Execution Time, each Effective
Date occurring after the Execution Time, the Redemption Date and the Closing
Date, to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) If filing of the Preliminary Final Prospectus or
Final Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), such prospectus and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been instituted or threatened.
(b) On the date of this Agreement and on the Closing
Date, the Company shall have furnished to the Purchaser the opinion of Xxxxxx X.
Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary of the
Company, dated the date of this Agreement and the Closing Date, respectively, to
the effect that:
(i) The Company and each of its significant
subsidiaries (as defined in Rule 405 under the Act) have been duly
incorporated and are validly existing and in good standing under the
laws of their respective jurisdictions of incorporation, are duly
qualified to do business and in good standing as foreign corporations
in all jurisdictions in which their respective ownership of property or
the conduct of their respective businesses requires such qualification
(except where the failure to so qualify could not have a material
adverse effect upon the Company or the Company and its subsidiaries
taken as a whole), and have all power and authority necessary to own
their respective properties and conduct the businesses in which they
are engaged as described in the Final Prospectus. Except as may be
disclosed in the Registration Statement, to the knowledge of such
counsel, the Company owns the
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shares of capital stock of its significant subsidiaries directly, or
indirectly through wholly owned subsidiaries, free and clear of any
lien, pledge or encumbrance or any claim of any third party.
(ii) The Company's authorized capital stock
as of June 30, 1997 is as set forth in the Final Prospectus; and the
statements in the Final Prospectus under the heading "Description of
Capital Stock" fairly summarize in all material respects the legal
matters therein described.
(iii) The Securities have been duly and
validly authorized and, when issued and delivered upon conversion of
any Notes in accordance with the Indenture or to the Purchaser against
payment therefor pursuant to the Standby Agreement, will be fully paid,
nonassessable and free of preemptive rights; the Conversion Securities
have been and the Purchased Securities will be as of the Closing Date
duly authorized for listing, subject to official notice of issuance, on
the New York Stock Exchange; and the Securities, when so issued and
delivered, will conform in all material respects to the description
thereof contained in the Final Prospectus.
(iv) This Standby Agreement has been duly
authorized, executed and delivered by the Company.
(v) Upon the Company's taking the actions
enumerated in such counsel's opinion, all the Notes will have been duly
called for redemption on the Redemption Date and the right to convert
the Notes into shares of Common Stock will expire at the Conversion
Expiration Time.
(vi) No consent, approval, authorization or
order of, or filing with, any governmental agency or body or any court
is required on the part of the Company for the redemption or conversion
of the Notes or the consummation of the transactions contemplated by
the Standby Agreement, except such as have been obtained and made under
the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Purchaser (as to which such counsel need express no
opinion).
(vii) Neither the issue and sale by the
Company of the Securities, nor the consummation by the Company of any
other of the transactions contemplated under the Standby Agreement nor
the fulfillment of the terms of the Standby Agreement by the Company
will result in a breach or violation of, or constitute a default under,
any statute, rule, regulation or order known to such counsel of any
governmental agency or body or any court having jurisdiction over the
Company or any of its significant subsidiaries, or the charter or
by-laws of the Company or the terms of the Indenture, the Notes or any
other material agreement or instrument known to such counsel, after due
inquiry, and 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 properties of
the Company or any of its significant subsidiaries is subject.
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(viii) The Registration Statement has become
effective under the Act as of the date specified in such opinion; any
required filing of the Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule
424(b); to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under the
Act and no proceedings for that purpose have been instituted or
threatened by the Commission; and the Registration Statement and the
Preliminary Final Prospectus and the Final Prospectus (other than the
financial statements and other financial and statistical information
contained therein, as to which such counsel need not express an
opinion) comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder.
(ix) Such counsel does not know of any legal
or governmental proceedings required to be described in the
Registration Statement which are not described as required or of any
contracts or documents of a character required to be disclosed in the
Registration Statement or Final Prospectus or to be filed as exhibits
to the Registration Statement which are not described or filed as
required.
In addition, such counsel shall state that he has participated
in conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company, and
representatives of the Purchaser, at which the contents of the Registration
Statement and Final Prospectus and related matters were discussed and, although,
except as set forth in paragraph (i) above, such counsel need not pass upon, and
need not assume any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement and Preliminary Final
Prospectus and the Final Prospectus and need not make any independent check or
verification thereof, during the course of such participation, no facts came to
the attention of such counsel that lead such counsel to believe that, as of the
Effective Date, the Registration Statement contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that, as of their
respective dates, the Preliminary Final Prospectus or the Final Prospectus
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
in which they were made, not misleading; it being understood that such counsel
need not express a belief with respect to the financial statements, schedules
and notes thereto and other financial and statistical data included in the
Registration Statement, the Preliminary Final Prospectus or the Final
Prospectus.
In rendering such opinions, such counsel may rely (a) as to
matters involving the application of laws of any jurisdiction other than the
United States, the Delaware General Corporation Law or the State of New York (it
being understood that such counsel's opinion as to matters of laws of the State
New York shall be limited to those laws as govern the enforceability of the
Indenture and the Notes), to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they believe to
be reliable and who are satisfactory to counsel for the Purchaser and (b) as to
matters of fact, to the extent they deem proper on certificates of responsible
officers of the Company and public
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officials. References to the Final Prospectus in this Section 6(b) include any
supplements thereto on the Closing Date.
(c) On the date of this Agreement and on the Closing Date, the
Purchaser shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx such opinion or
opinions, dated the date of this Agreement and the Closing Date, respectively,
with respect to the issuance and sale of the Securities, the Registration
Statement, the Final Prospectus (together with any supplement thereto) and other
related matters as the Purchaser may reasonably require, and the Company shall
have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(d) On each Effective Date and on the Closing Date, the
Company shall have furnished to the Purchaser a certificate of the Company,
signed by the President or any Vice President and a principal financial or
accounting officer of the Company, dated the date of delivery, to the effect
that the signers of such certificate have carefully examined the Registration
Statement, the Preliminary Final Prospectus, the Final Prospectus, any
supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material respects on and
as of the date of such certificate as if made on the date of such
certificate and the Company has complied with all agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the date of such certificate;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge, threatened
by the Commission; and
(iii) since the date of the most recent financial
statements included in the Preliminary Final Prospectus (exclusive of
any supplement thereto), there has been no material adverse change in
the financial condition, results of operations, business or properties
of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Preliminary Final Prospectus
(exclusive of any supplement thereto).
(e) At the Execution Time, on each Effective Date occurring
after the Execution Time on which financial information is included or
incorporated in the Registration Statement or the date of the Final Prospectus
and on the Closing Date, Ernst & Young LLP shall have delivered to the Purchaser
a letter or letters, dated as of its delivery date and the Closing Date,
respectively, in form and substance satisfactory to the Purchaser, confirming
that they are independent accountants within the meaning of the Act and the
Exchange Act and the applicable published rules and regulations thereunder and
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Registration Statement and the Preliminary Final Prospectus
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and Final Prospectus. References to the Final Prospectus in this subsection 6(e)
include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Preliminary Final Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change specified in the
letter or letters referred to in subsection 6(e) above or (ii) any change, or
any development involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the good faith judgment of the
Purchaser, so material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the Preliminary
Final Prospectus (exclusive of any supplement thereto).
(g) The Securities shall have been approved for listing on the
New York Stock Exchange, subject to official notice of issuance.
(h) The Company shall have furnished to the Purchaser such
further information, certificates and documents as the Purchaser may reasonably
request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and counsel for the Purchaser, this Agreement and
all obligations of the Purchaser hereunder may be canceled at, or at any time
prior to, the Closing Date by the Purchaser. Notice of such cancellation shall
be given to the Company in writing or by telephone confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, on the date of this Agreement or on the Closing Date,
as applicable.
7. Reimbursement of Purchaser's Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Purchaser set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by the Purchaser, the Company will reimburse the Purchaser upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by it in connection with the proposed
purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
the Purchaser, the directors, officers, employees and agents of the Purchaser
and each person who controls the Purchaser within the meaning of either the Act
or the Exchange Act against any
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and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in, or incorporated by reference into,
the Registration Statement for the registration of the Securities as originally
filed or in any amendment thereof, or in any Preliminary Final Prospectus or the
Final Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage or
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf the
Purchaser specifically for inclusion therein. This indemnity agreement will be
in addition to any liability that the Company may otherwise have.
(b) The Purchaser agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to the Purchaser, but only with reference
to written information relating to the Purchaser furnished to the Company by or
on behalf the Purchaser specifically for inclusion in the documents referred to
in the foregoing indemnity. This indemnity agreement will be in addition to any
liability that the Purchaser may otherwise have. The Company acknowledges that
the statements set forth in the last paragraph of the cover page in any
Preliminary Final Prospectus and the Final Prospectus constitute the only
information furnished in writing by or on behalf of the Purchaser for inclusion
in any Preliminary Final Prospectus or the Final Prospectus, and you confirm
that such statements are correct.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof, but the failure so to notify the
indemnifying party (i) will not relieve it from liability under Section 8(a) or
(b) above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in Section 8(a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties as set
forth below); provided, however, that such counsel shall be
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satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there shall be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time the indemnifying party
shall have failed to comply with its obligations under this Section 8 in all
material respects and the indemnified party shall have notified the indemnifying
party in writing of such failure, the indemnifying party 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 10 days after receipt by such
indemnifying party of the aforesaid notice and (ii) such indemnifying party
shall not have cured such failure in accordance with the requirements of this
Section 8 prior to the date of such settlement.
(d) In the event that the indemnity provided in
Section 8(a) or (b) above is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Purchaser agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively, "Losses") to which the Company and the Purchaser
may be subject in such proportion as is appropriate to reflect the relative
benefits received by Company and by the Purchaser from the offering of the
Securities; provided, however, that in no case shall the Purchaser (except as
may be provided in the agreement among purchasers relating to the offering of
the Securities) be responsible for any amount in excess of the fees payable by
the Company to the Purchaser pursuant to Section 3 hereof. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company and the Purchaser shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and of the Purchaser in connection with the statements or
omissions which resulted in such Losses as well as any
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other relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the sum of (i) the principal amount of Notes converted
by the Purchaser pursuant to Section 2(a) hereof and (ii) the net amount paid by
the Purchaser to the Company at the Closing, and benefits received by the
Purchaser shall be deemed to be equal to the total fees payable by the Company
to the Purchaser pursuant to Section 3 hereof. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Company or the Purchaser. The Company and
the Purchaser agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 8(d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls the Purchaser within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of the Purchaser shall have the
same rights to contribution as the Purchaser, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
Section 8(d).
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Purchaser, by notice given to the Company at
any time prior to the Closing Date, if prior to such time (a) (i) trading in the
Company's Common Stock shall have been suspended by the Commission or the New
York Stock Exchange or trading in the Notes shall have been suspended by the
Commission or the New York Stock Exchange prior to the Conversion Date, or (ii)
trading in securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on such
exchange, (b) a banking moratorium shall have been declared either by Federal or
New York State authorities or (c) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the judgment of the Purchaser, impracticable
or inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Preliminary Final Prospectus (exclusive of any supplement
thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Purchaser set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Purchaser or the Company or any of the
officers, directors or controlling persons referred to in Section 8 hereof, and
will survive the conversion of any Notes and the delivery of and payment for any
Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and will be mailed, delivered or telecopied and
confirmed to:
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If to the Purchaser, addressed to it at:
Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company, addressed to it at:
Township Line and Union Meeting Roads
Blue Xxxx, Pennsylvania 19424
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
12. Successors. This Agreement will insure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
14. Headings. The headings herein have been inserted for
convenience of reference only and are not intended to be part of, or affect the
meaning or interpretation of, this Agreement.
15. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but all such
counterparts together shall constitute one and the same instrument.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the Purchaser.
Very truly yours,
XXXXXX XXXXXXXXXXX
By: _______________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
SALOMON BROTHERS INC
By: _______________________
Name:
Title:
