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EXHIBIT 4.2
$85,000,000
10% SENIOR NOTES DUE 2004
PURCHASE AGREEMENT
October 16, 1997
First Chicago Capital Markets, Inc.
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Ladies and Gentlemen:
Employee Solutions, Inc., an Arizona corporation (the
"Company"), proposes, upon the terms and conditions set forth herein, to issue
and sell to you, as the initial purchaser (the "Initial Purchaser"), $85,000,000
aggregate principal amount of its 10% Senior Notes due 2004 (the "Notes"). The
Notes are to be issued pursuant to the provisions of an Indenture, to be dated
as of October 15, 1997 (the "Indenture"), between the Company and The Huntington
National Bank, as Trustee (the "Trustee"). The Notes are to be unconditionally
guaranteed (the "Guarantees") by each of the guarantors signatory hereto
(collectively, the "Guarantors"). Unless the context requires otherwise, all
references herein to the Notes shall be deemed to include the Guarantees.
The Company wishes to confirm as follows its agreement with
the Initial Purchaser in connection with the purchase and resale of the Notes.
1. Preliminary Offering Memorandum and Offering Memorandum.
The Notes will be offered and sold to the Initial Purchaser without registration
under the Securities Act of 1933, as amended (the "Act"), in reliance on an
exemption pursuant to Section 4(2) under the Act. The Company has prepared a
preliminary offering memorandum, dated September 30, 1997 (the "Preliminary
Offering Memorandum"), and an offering memorandum, dated October 16, 1997 (the
"Offering Memorandum"), setting forth information regarding the Company and the
Notes. Any references herein to the Preliminary Offering Memorandum shall be
deemed to include all amendments and supplements thereto. Any references herein
to the Offering Memorandum shall refer to the Offering Memorandum in the form
first furnished to the Initial Purchaser for use in connection with the offering
of the Notes. Any reference in this Agreement to the Offering Memorandum and
Preliminary Offering Memorandum shall be deemed to refer to and include the
documents incorporated by reference therein as of the date of the Offering
Memorandum and Preliminary Offering Memorandum, as the case may be, and any
reference to any amendment or supplement to the Offering Memorandum and
Preliminary Offering Memorandum shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934,
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as amended (the "Exchange Act") which, upon filing, are incorporated by
reference therein. As used herein, the term "Incorporated Documents" means the
documents which at the time are incorporated by reference in the Offering
Memorandum and Preliminary Offering Memorandum, or any amendment or supplement
thereto. The Company hereby confirms that it has authorized the use of the
Preliminary Offering Memorandum and the Offering Memorandum in connection with
the offering and resale of the Notes by the Initial Purchaser.
The Initial Purchaser has advised the Company that it proposes
to make offers and sales (the "Exempt Resales") of the Notes purchased by it
hereunder only on the terms and in the manner set forth in the Offering
Memorandum and Section 2 hereof, as soon as it deems advisable after this
Agreement has been executed and delivered, (i) to persons in the United States
whom the Initial Purchaser reasonably believes to be qualified institutional
buyers ("Qualified Institutional Buyers") as defined in Rule 144A under the Act,
as such rule may be amended from time to time ("Rule 144A"), in transactions
under Rule 144A and (ii) to a limited number of other institutional "accredited
investors" (as defined in Rule 501 (a) (1), (2), (3) and (7) under Regulation D
of the Act) ("Accredited Investors") in private sales exempt from registration
under the Act (such persons specified in clauses (i) and (ii) being referred to
herein as the "Eligible Purchasers").
It is understood and acknowledged that upon original issuance
thereof, and until such time as the same is no longer required under the
applicable requirements of the Act, the Notes shall bear a legend substantially
to the effect set forth below:
"THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX
XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE
UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, (d) TO AN
INSTITUTIONAL
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ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE NOTE FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF ONE OR MORE OTHER INSTITUTIONAL
ACCREDITED INVESTORS, IN EACH CASE, HAVING A MINIMUM PURCHASE PRICE OF
AT LEAST $100,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR
FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (IN THE CASE OF (d)
UPON DELIVERY OF A TRANSFEREE LETTER OF REPRESENTATION AND IN THE CASE
OF (b), (c), (d) OR (e), UPON AN OPINION OF COUNSEL IF THE COMPANY OR
TRUSTEE SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH ABOVE.
It is also understood and acknowledged that holders (including
subsequent transferees) of the Notes will have the registration rights set forth
in the registration rights agreement (the "Registration Rights Agreement") in
substantially the form of Exhibit A hereto, to be dated as of the Closing Date
(as defined).
2. Agreements to Sell, Purchase and Resell. (a) The Company
hereby agrees, subject to all the terms and conditions set forth herein, to
issue and sell to the Initial Purchaser and, upon the basis of the
representations, warranties and agreements of the Company herein contained and
subject to all the terms and conditions set forth herein, the Initial Purchaser
agrees to purchase the Notes from the Company, at a purchase price of 96.875% of
the principal amount thereof.
(b) The Initial Purchaser has advised the Company that it
proposes to offer the Notes for sale upon the terms and conditions set forth in
this Agreement and in the Offering Memorandum. The Initial Purchaser hereby
represents and warrants to, and agrees with, the Company that it (i) is a
Qualified Institutional Buyer, with such knowledge and experience in financial
and business matters as are necessary in order to evaluate the merits and risks
in an investment in the Notes and is purchasing the Notes pursuant to a private
sale exempt from registration under the Act, (ii) has not and will not solicit
offers for, or offer or sell, the Notes by means of any form of general
solicitation or general advertising or in any manner involving a public offering
within the meaning of Section 4(2) of the Act provided, however, that such
limitation shall not preclude the Initial Purchaser from placing any tombstone
announcement consistent with the rules and regulations of the Securities and
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Exchange Commission with respect to the resale by it of the Notes, (iii) will
solicit offers for the Notes only from, and will offer, sell or deliver the
Notes as part of its initial offering, only to (A) persons in the United States
whom it reasonably believes to be Qualified Institutional Buyers, or if any such
person is buying for one or more institutional accounts for which such person is
acting as fiduciary or agent, only when such person has represented to the
Initial Purchaser that each such account is a Qualified Institutional Buyer, to
whom notice has been given that such sale or delivery is being made in reliance
on Rule 144A, in each case, in transactions under Rule 144A or (B) to a limited
number of Accredited Investors that make the representations to and agreements
with the Company specified in Annex A to the Offering Memorandum in private
sales exempt from registration under the Act and (iv) will, during its initial
distribution of the Notes, unless prohibited by applicable law, furnish to each
person to whom it sells any Notes a copy of the Offering Memorandum. The Initial
Purchaser has advised the Company that it will offer the Notes to Eligible
Purchasers at a price and upon terms set forth in the Offering Memorandum. Such
price and terms may be changed by the Initial Purchaser at any time thereafter
without notice.
The Initial Purchaser understands that the Company and, for
purposes of the opinions to be delivered to the Initial Purchaser pursuant to
Section 7 hereof, counsel to the Company and counsel to the Initial Purchaser,
will rely upon the accuracy and truth of the foregoing representations and
agreements and the Initial Purchaser hereby consents to such reliance.
3. Delivery of the Notes and Payment Therefor. Delivery to the
Initial Purchaser of and payment for the Notes shall be made at the office of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
at 10:00 A.M., New York City time, on October 21, 1997 (the "Closing Date"). The
place of closing for the Notes and the Closing Date may be varied by agreement
between the Initial Purchaser and the Company.
The Notes which the Initial Purchaser may elect to purchase
will be delivered to the Initial Purchaser against payment of the purchase price
therefor in immediately available funds wired in accordance with the
instructions of the Company. The Notes will be evidence by a single global
security in definitive form (the "Global Note") and/or by additional definitive
securities, and will be registered, in the case of the Global Note, in the name
of Cede & Co. as nominee of The Depository Trust Company ("DTC"), and in the
other cases, in such names and in such denominations as the Initial Purchaser
shall request prior to 9:30 A.M., New York City time, on the second business day
preceding the Closing Date. The Notes to be delivered to the Initial Purchaser
shall be made available to the Initial Purchaser in New York City for inspection
and packaging not later than 9:30 A.M., New York City time, on the business day
next preceding the Closing Date.
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4. Agreements of the Company and the Guarantors. Each of the
Company and the Guarantors agrees with the Initial Purchaser as follows:
(a) The Company will advise the Initial Purchaser promptly
and, if requested by it, will confirm such advice in writing, within the period
of time referred to in the first sentence of subsection (e) below, of any change
in the Company's condition (financial or other), business, prospects,
properties, net worth or results of operations, or of the happening of any event
which makes any material statement made in the Offering Memorandum (as then
amended or supplemented) untrue or which requires the making of any additions to
or changes in the Offering Memorandum (as then amended or supplemented) in order
to make the statements therein, in the light of the circumstances in which they
were made, not misleading, or of the necessity to amend or supplement the
Offering Memorandum (as then amended or supplemented) to comply with any law.
(b) The Company will furnish to the Initial Purchaser, without
charge, as of the date of the Offering Memorandum, such number of copies of the
Offering Memorandum as it may then be amended or supplemented (including
documents incorporated by reference therein) as they may reasonably request.
(c) The Company will not make any amendment or supplement to
the Preliminary Offering Memorandum or to the Offering Memorandum (including the
filing of any document which, upon filing, becomes an Incorporated Document) of
which the Initial Purchaser shall not previously have been advised or to which
it shall reasonably object after being so advised and no such amendment or
supplement when it is made, shall contain an untrue statement of a material fact
or will omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances in
which they were made, not misleading.
(d) Prior to the execution and delivery of this Agreement, the
Company has delivered or will deliver to the Initial Purchaser, without charge,
in such quantities as it shall have requested or may hereafter reasonably
request, copies of the Preliminary Offering Memorandum. The Company consents to
the use, in accordance with the securities or Blue Sky laws of the jurisdictions
in which the Notes are offered by the Initial Purchaser and by dealers, prior to
the date of the Offering Memorandum, of each Preliminary Offering Memorandum so
furnished by the Company. The Company consents to the use of the Offering
Memorandum (and of any amendment or supplement thereto) in accordance with the
securities or Blue Sky laws of the jurisdictions in which the Notes are offered
by the Initial Purchaser in connection with the offering and sale of the Notes.
(e) If, at any time prior to completion of the distribution of
the Notes by the Initial Purchaser to Eligible Purchasers, any event shall occur
that in the judgment of the Company or in the opinion of the Initial Purchaser's
counsel should be set forth in the Offering Memorandum (as then amended or
supplemented) in order to make the statements
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therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary to supplement or amend the Offering Memorandum
in order to comply with any law, the Company will forthwith prepare an
appropriate supplement or amendment thereto, and will expeditiously furnish to
the Initial Purchaser a reasonable number of copies thereof.
(f) The Company will cooperate with the Initial Purchaser and
with its counsel in connection with the qualification of the Notes for offering
and sale by the Initial Purchaser and by dealers under the securities or Blue
Sky laws of such jurisdictions as the Initial Purchaser may designate and will
file such consents to service of process or other documents necessary or
appropriate in order to effect such qualification; provided that in no event
shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would subject it to
service of process in suits, other than those arising out of the offering or
sale of the Notes, in any jurisdiction where it is not now so subject.
(g) So long as any of the Notes are outstanding, the Company
will furnish to the Initial Purchaser upon its request (i) as soon as available,
a copy of each report of the Company mailed to stockholders or filed with the
Securities and Exchange Commission and (ii) from time to time such other
information concerning the Company as the Initial Purchaser may reasonably
request.
(h) If this Agreement shall terminate or shall be terminated
after execution and delivery pursuant to any provisions hereof (otherwise than
by notice given by the Initial Purchaser terminating this Agreement pursuant to
Section 9 hereof) or if this Agreement shall be terminated by the Initial
Purchaser because of any failure or refusal on the part of the Company to comply
with the terms or fulfill any of the conditions of this Agreement, the Company
agrees to reimburse the Initial Purchaser for all out-of-pocket expenses
(including fees and expenses of its counsel) reasonably incurred by it in
connection herewith, but without further obligation on the part of the Company
for loss of profits or otherwise.
(i) The Company will apply the net proceeds from the sale of
the Notes to be sold by it hereunder substantially in accordance with the
description set forth in the Offering Memorandum under the caption "Use of
Proceeds".
(j) Except as otherwise provided in this Agreement and the
Registration Rights Agreement, without the prior consent of the Initial
Purchaser, prior to the expiration of 90 days after the date of the Offering
Memorandum the Company will not offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company.
(k) Except as stated in this Agreement and in the Preliminary
Offering Memorandum and Offering Memorandum, neither the Company nor any of the
Subsidiaries has taken, nor will it take, directly or indirectly, any action
designed to or that might
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reasonably be expected to cause or result in stabilization or manipulation of
the price of the Notes to facilitate the sale or resale of the Notes. Except as
permitted by the Act, neither the Company nor any of the Subsidiaries will
distribute any offering material in connection with the Exempt Resales.
(l) The Company will use its reasonable best efforts to cause
the Notes to be eligible for trading on the PORTAL Market.
(m) From and after the Closing Date, so long as any of the
Notes are outstanding and during any period in which the Company is not subject
to Section 13 or 15(d) of the Exchange Act, the Company will make available to
holders of the Notes and prospective purchasers of Notes designated by such
holders, upon request of such holders or such prospective purchasers, the
information required to be delivered pursuant to Rule 144A (d) (4) under the Act
to permit compliance with Rule 144A in connection with resale of the Notes.
(n) Each of the Company and the Guarantors agrees that it will
not and will cause its affiliates not to sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in the Act)
that would be integrated with the sale of the Notes in a manner that would
require the registration under the Act of the sale to the Initial Purchaser or
the Eligible Purchasers of the Notes.
(o) None of the Company and its affiliates will solicit any
offer to buy or offer or sell the Notes by means of any form of general
solicitation or general advertising.
(p) During the period from the Closing Date to two years after
the Closing Date, the Company and the Guarantors will not, and will not permit
any "affiliate" (as defined in Rule 144 under the Act) of the Company or the
Guarantors to, resell any of the Notes that have been reacquired by them, except
for Notes purchased by the Company, the Guarantors or any of their affiliates
and resold in a transaction registered under the Act or under Rule 144 or
otherwise exempt from registration under the Act.
(q) The Company agrees to comply with all the terms and
conditions of the Registration Rights Agreement and all agreements set forth in
the representation letter of the Company to DTC relating to the approval of the
Notes by DTC for "book entry" transfer.
(r) The Company agrees that in connection with the
registration of the Notes pursuant to the Registration Rights Agreement, or at
such earlier time as may be required, the Indenture shall be qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act") and any necessary
supplemental indentures will be entered into in connection therewith.
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(s) Prior to the Closing Date, the Company will furnish to the
Initial Purchaser, as soon as they have been prepared, a copy of any unaudited
interim consolidated financial statements of the Company for any period
subsequent to the period covered by the most recent consolidated financial
statements of the Company appearing in the Offering Memorandum.
(t) The Company and the Guarantors will not claim the benefit
of any usury laws against the holders of the Notes.
5. Representations and Warranties of the Company and the
Guarantors. Each of the Company and the Guarantors represents and warrants to
the Initial Purchaser that:
(a) The Preliminary Offering Memorandum and Offering
Memorandum with respect to the Notes have been prepared by the Company for use
by the Initial Purchaser in connection with the Exempt Resales. No order or
decree preventing the use of the Preliminary Offering Memorandum or the Offering
Memorandum or any amendment or supplement thereto, or any order asserting that
the transactions contemplated by this Agreement are subject to the registration
requirements of the Act has been issued and no proceeding for that purpose has
commenced or is pending or, to the knowledge of the Company, is contemplated.
(b) The Preliminary Offering Memorandum and the Offering
Memorandum as of their respective dates do not, and the Offering Memorandum as
of the Closing Date will not, 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, except that this representation and warranty does not
apply to statements in or omissions from the Preliminary Offering Memorandum and
the Offering Memorandum made in reliance upon and in conformity with information
relating to the Initial Purchaser furnished to the Company in writing by or on
behalf of the Initial Purchaser expressly for use therein.
(c) The Indenture has been duly and validly authorized by the
Company and, upon its execution and delivery by the Company and assuming due
authorization, execution, delivery and performance by the Trustee, will be a
valid and binding agreement of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy, insolvency or
other similar laws affecting creditors' right generally and limits imposed by
equitable principles, and conforms in all material respects to the description
thereof in the Offering Memorandum; no qualification of the Indenture under the
1939 Act is required in connection with the offer and sale of the Notes
contemplated hereby or in connection with the Exempt Resales.
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(d) The Notes and the Guarantees have been duly authorized by
the Company and the Guarantors, respectively, and when the Guarantees are
executed by the appropriate Guarantor and the Notes are executed by the Company
and authenticated by the Trustee in accordance with the Indenture and the Notes
are delivered to the Initial Purchaser against payment therefor in accordance
with the terms hereof, the Notes and the Guarantees will have been validly
issued and delivered, and will constitute valid and binding obligations of the
Company and the Guarantors, respectively, entitled to the benefits of the
Indenture and enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other similar laws affecting
the enforcement of creditors' rights generally and limits imposed by equitable
principles, and the Notes will conform in all material respects to the
description thereof in the Offering Memorandum.
(e) The Incorporated Documents heretofore filed, when they
were filed (or, if any amendment with respect to any such document was filed,
when such amendment was filed), conformed in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder, and
any further Incorporated Documents so filed will, when they are filed, conform
in all material respects with the requirements of the Exchange Act and the rules
and regulations thereunder; no such document when it was filed (or, if an
amendment with respect to any such document was filed, when such amendment was
filed), contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; and no such further document, when it is filed, will contain an
untrue statement of a material fact or will omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(f) All the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable.
(g) The Company is a corporation duly organized, validly
existing and in good standing under the laws of Arizona with full corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum, and is duly registered and
qualified to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure so to
register or qualify does not have, individually or in the aggregate, a material
adverse effect on the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company and the
Subsidiaries (as hereinafter defined) taken as a whole (a "Material Adverse
Effect").
(h) All the Company's subsidiaries (as defined in the Act) are
referred to herein individually as a "Subsidiary" and collectively as the
"Subsidiaries." Each Subsidiary is a corporation duly organized, validly
existing and in good standing in the jurisdiction of
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its incorporation or organization, as the case may be, with full corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum, and is duly registered and
qualified to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure so to
register or qualify or be in good standing does not, individually or in the
aggregate, have a Material Adverse Effect. All the outstanding shares of capital
stock or other equity securities of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable, and are wholly
owned by the Company directly or indirectly through one of the other
Subsidiaries, free and clear of any lien, adverse claim, security interest,
equity or other encumbrance.
(i) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened, against the Company or any of the
Subsidiaries or to which the Company or any of the Subsidiaries or to which any
of their respective properties, is subject, that are not disclosed in the
Offering Memorandum and which, if adversely decided, are reasonably likely to
cause a Material Adverse Effect or to materially affect the issuance of the
Notes or the consummation of the transactions contemplated by this Agreement.
There are no material agreements, contracts, indentures, leases or other
instruments that are not described in the Offering Memorandum or any
Incorporated Document. Neither the Company nor any Subsidiary is involved in any
strike, job action or labor dispute with any group of employees, and, to the
Company's knowledge, no such action or dispute is threatened.
(j) Neither the Company nor any of the Subsidiaries is in
violation of its certificate or articles of incorporation, or bylaws or other
organizational documents, or, in any material respect, of any law, ordinance,
administrative or governmental rule or regulation applicable to the Company or
any of the Subsidiaries or of any decree of any court or governmental agency or
body having jurisdiction over the Company or any of the Subsidiaries or in
default in any material respect in the performance of any obligation, agreement
or condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any material agreement, indenture, lease or other instrument
to which the Company or any of the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound.
(k) None of the issuance, offer, sale or delivery of the
Notes, the execution, delivery or performance of this Agreement, the Indenture
or the Registration Rights Agreement by the Company and the Guarantors or the
consummation by the Company and the Guarantors of the transactions contemplated
hereby or thereby (i) requires any consent, approval, authorization or other
order of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body (including, without limitation,
any insurance regulatory agency or body), agency or official (except such as may
be required in connection with the registration under the Act of the Notes and
qualification of the Indenture
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under the 1939 Act in accordance with the Registration Rights Agreement and
compliance with the securities or Blue Sky laws of various jurisdictions), or
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, the certificate or articles of incorporation, bylaws or
other organizational documents, of the Company or any of the Subsidiaries or
(ii) conflicts or will conflict with or constitutes or will constitute a breach
of, or a default under, any material agreement, indenture, lease or other
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound, or
violates or will violate in any material respect any statute, law, regulation or
filing or judgment, injunction, order or decree applicable to the Company or any
of the Subsidiaries or any of their respective properties, or will result in the
creation or imposition of any lien, charge or encumbrance upon any material
property or assets of the Company or any of the Subsidiaries pursuant to the
terms of any agreement or instrument to which any of them is a party or by which
any of them may be bound or to which any of the material property or assets of
any of them is subject.
(l) The accountants, Xxxxxx Xxxxxxxx LLP and Deloitte & Touche
LLP who have certified or shall certify the financial statements included as
part of the Offering Memorandum (or any amendment or supplement thereto), each
are independent certified public accountants with respect to the Company and its
Subsidiaries within the meaning of Regulation S-X under the Act.
(m) The financial statements (historical and pro forma),
together with related schedules and notes included or incorporated by reference
in the Offering Memorandum, present fairly in all material respects the
consolidated financial position, results of operations and changes in
stockholders' equity and cash flows of the Company and the Subsidiaries at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; the pro forma financial
statements and other pro forma information included in the Offering Memorandum
present fairly the information shown therein, have been prepared in accordance
with Regulation S-X and have been properly compiled on the pro forma bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions or circumstances referred to therein; and the other financial
and statistical information and data included or incorporated by reference in
the Offering Memorandum (and any amendment or supplement thereto) is accurately
presented and, to the extent such information and data is derived from the
financial books and records of the Company, is prepared on a basis consistent
with such financial statements and the books and records of the Company and the
Subsidiaries.
(n) Each of the Company and the Guarantors has all requisite
power and authority to execute, deliver and perform its obligations under this
Agreement and the Registration Rights Agreement; the execution and delivery of,
and the performance by the
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Company and the Guarantors of their obligations under, this Agreement and the
Registration Rights Agreement have been duly and validly authorized by the
Company and the Guarantors, respectively, and this Agreement and the
Registration Rights Agreement have been duly executed and delivered by the
Company and the Guarantors and constitute the valid and legally binding
agreements of the Company and the Guarantors, respectively, enforceable against
the Company and the Guarantors, respectively, in accordance with their terms,
except as the enforcement hereof and thereof may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement or creditors' rights
generally and subject to the applicability of general principles of equity, and
except as rights to indemnity and contribution hereunder and thereunder may be
limited by Federal or state securities laws or principles of public policy.
(o) Except as disclosed in the Offering Memorandum, subsequent
to the date as of which such information is given in the Offering Memorandum (as
amended or supplemented on the date hereof), neither the Company nor any of the
Subsidiaries has incurred any liability or obligation, direct or contingent, or
entered into any transaction, not in the ordinary course of business, that is
material to the Company and the Subsidiaries taken as a whole, and there has not
been any material change in the capital stock, or material increase in the
short-term or long-term debt, of the Company or any of the Subsidiaries or any
material adverse change, or any development involving or which could reasonably
be expected to involve a prospective material adverse change, in the condition
(financial or other), business, properties, net worth or results of operations
of the Company and the Subsidiaries taken as a whole.
(p) Each of the Company and the Subsidiaries has good and
marketable title to all property (real and personal) described in the Offering
Memorandum as being owned by it, free and clear of all material liens, claims,
security interests or other encumbrances except such as are described in the
Offering Memorandum and all the property described in the Offering Memorandum as
being held under lease by each of the Company and the Subsidiaries is held by it
under valid, subsisting and enforceable leases, with only such exceptions as in
the aggregate are not materially burdensome and do not interfere in any material
respect with the conduct of the business of the Company and the Subsidiaries
taken as a whole.
(q) Each of the Company and the Subsidiaries have such
permits, licenses, franchises, and other approvals or authorizations of
governmental or regulatory authorities ("Permits") as are necessary to own their
respective properties and to conduct their respective businesses in the manner
described in the Offering Memorandum (including, without limitation, all
permits, licenses, franchises and other approvals or authorizations from
governmental authorities as are necessary for qualification as an insurer in
each jurisdiction in which the regular conduct of its business requires such
qualification); the Company and each of the Subsidiaries have fulfilled and
performed all their respective material obligations with respect to the Permits,
and no event has occurred which allows, or after notice or lapse
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of time would allow, revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such Permit, subject in
each case to such qualification as may be set forth in the Offering Memorandum;
and, except as described in the Offering Memorandum, none of the Permits
contains any restriction that is materially burdensome to the Company and the
Subsidiaries, taken as a whole.
(r) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(s) Neither the Company nor any of the Subsidiaries nor, to
the Company's knowledge, any employee or agent of the Company or any Subsidiary
has made any payment of funds of the Company or any Subsidiary or received or
retained any funds in violation of any law, rule or regulation, which violation
would have a Material Adverse Effect.
(t) The Company and each of the Subsidiaries have filed all
federal, state and local income tax returns required to be filed, which returns
are true and correct in all material respects, and has paid all taxes due, and
no tax deficiency has been determined adversely to the Company or any of the
Subsidiaries which has had (nor does the Company have any knowledge of any tax
deficiency which, if determined adversely to the Company or any of the
Subsidiaries, might have) a Material Adverse Effect.
(u) Except as disclosed in the Offering Memorandum, no
insurance regulatory agency or body has issued any order or decree impairing,
restricting or prohibiting (i) a payment of dividends of Camelback Insurance
Ltd. ("Camelback") to the Company or (ii) the continuation of the business of
Camelback as presently conducted.
(v) Except as disclosed in the Offering Memorandum, no change
in any insurance laws, regulations or administrative practices or National
Association of Insurance Commissioners ("NAIC") recommendations, guidelines or
model laws or regulations is pending with a reasonable possibility of adoption
that, if adopted, is reasonably expected to have, individually or in the
aggregate with all such changes, a Material Adverse Effect.
(w) No holder of any security of the Company, other than the
Notes, has any right to request or demand registration of such security because
of the consummation of the transactions contemplated by this Agreement or the
Registration Rights Agreement.
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(x) The Company and each of the Subsidiaries own or possess
all patents, trademarks, trademark registrations, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade secrets and
rights described in the Offering Memorandum as being owned by any of them or
necessary for the conduct of their respective businesses, and the Company is not
aware of any claim to the contrary or any challenge by any other person to the
rights of the Company and the Subsidiaries with respect to the foregoing.
(y) The Company is not and, upon sale of the Notes to be
issued and sold thereby in accordance herewith and the application of the net
proceeds to the Company of such sale as described in the Offering Memorandum
under the caption "Use of Proceeds," will not be an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(z) The Company has not distributed and, prior to the later to
occur of the Closing Date and completion of the distribution of the Notes, will
not distribute any offering material in connection with the offering and sale of
the Notes other than the Preliminary Offering Memorandum and Offering
Memorandum.
(aa) When the Notes are issued and delivered pursuant to this
Agreement, such Notes will not be of the same class (within the meaning of Rule
144A (d) (3) under the Act) as any security of the Company that is listed on a
national securities exchange registered under Section 6 of the Exchange Act or
that is quoted in a United States automated interdealer quotation system.
(ab) Neither the Company nor any affiliate (as defined in Rule
501 (b) of Regulation D ("Regulation D") under the Act) of the Company has
directly, or through any agent (provided that no representation is made as to
the Initial Purchaser or any person acting on its behalf), (i) sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect of, any
security (as defined in the Act) which is or will be integrated with the
offering and sale of the Notes in a manner that would require the registration
of the Notes under the Act, or (ii) engaged in any form of general solicitation
or general advertising (within the meaning of Regulation D) in connection with
the offering of the Notes.
(ac) The Company is not required to deliver the information
specified in Rule 144A (d) (4) in connection with the offering and resale of the
Notes by the Initial Purchaser.
(ad) Assuming (i) that the representations and warranties in
Section 2 hereof are true, (ii) that the Initial Purchaser complies with the
covenants set forth in Section 2 hereof, and (iii) that each person to whom the
Initial Purchaser offers, sells or delivers the Notes is a Qualified
Institutional Buyer or an Accredited Investor, the purchase and sale of the
Notes pursuant hereto (including the Initial Purchaser's proposed offering of
the Notes
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on the terms and in the manner set forth in the Offering Memorandum and Section
2 hereof) is exempt from the registration requirements of the Act and the
Indenture is not required to be qualified under the 1939 Act.
(ae) Each of the Company and the Subsidiaries is in compliance
in all material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no "reportable
event" (as defined in ERISA) has occurred for which the Company or any of the
Subsidiaries would have any liability; neither the Company nor any of the
Subsidiaries has incurred and does not expect to incur liability under (i) Title
IV of ERISA with respect to termination of, or withdrawal from, any "pension
plan" or (ii) Section 412 or 4971 of the Internal Revenue Code (the "Code"); and
each "pension plan" for which the Company or any of the 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 cause the loss of such qualification.
The execution and delivery of this Agreement, the Registration Rights Agreement
and Indenture and the sale of the Notes to the Initial Purchaser or by the
Initial Purchaser to Eligible Purchasers will not involve any prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975 of the
Code. The representation made by the Company in the preceding sentence is made
in reliance upon and subject to the accuracy of, and compliance with, the
representations and covenants made or deemed made by the Eligible Purchasers as
set forth in the Offering Memorandum under the section entitled "Notice to
Investors."
(af) The Company and its Subsidiaries are not in violation of
any Environmental Law or order, notice, or demand issued pursuant to any
Environmental Laws, in each case applicable to the assets of the Company or any
of its Subsidiaries except for such violations which would not, individually or
in the aggregate, have a Material Adverse Effect.
"Environmental Laws" shall mean all federal, state or local
laws, statutes, rules, regulations, or ordinances relating to public health,
safety, or the environment including those relating (a) to releases, discharges,
emissions, or disposals into air, water, land, or groundwater, (b) to the
withdrawal or use of groundwater, (c) to the use, handling, or disposal of
polychlorinated biphenyls or asbestos, (d) to the disposal, treatment, storage,
or management of hazardous or solid waste, or Hazardous Substances or crude oil,
fractious petroleum derivatives, or by-products thereof, (e) to exposure to
toxic or hazardous materials or (f) to the handling, transportation, discharge,
or release of gaseous or liquid Hazardous Substances.
"Hazardous Substance" shall mean any hazardous or toxic
material, substance, or waste pollutant or contaminant which is regulated as
such under any statute, law, ordinance, rule, or regulation of any federal,
state, local, or regional authority having
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jurisdiction over assets of the Company or any of its Subsidiaries or its use,
including any material, substance, or waste which is: (a) defined as a hazardous
substance under Section 311 of the Federal Water Pollution Control Act (33
U.S.C. Section 1317), as amended; (b) regulated as a hazardous waste under
Section 1004 of the Federal Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 et seq.), as amended; (c) defined as a hazardous substance under
Section 101 of the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. Section 9601, et seq.), as amended; or (d) defined or
regulated as a hazardous substance or hazardous waste under any rules or
regulations promulgated under any of the foregoing statutes.
(ag) Neither the Company nor any of its Subsidiaries have
violated any federal, state or local law relating to discrimination in the
hiring, promotion or pay of employees or any applicable wage or hour laws, or
any provisions of ERISA or the rules and regulations promulgated thereunder nor
has the Company or any of its Subsidiaries engaged in any unfair labor practice,
which, in each case might result singly or in the aggregate in a Material
Adverse Effect.
6. Indemnification and Contribution. (a) Each of the Company
and the Guarantors, jointly and severally, agrees to indemnify and hold harmless
the Initial Purchaser and each person, if any, who controls the Initial
Purchaser within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the agents, employees, officers and directors of the Initial
Purchaser, from and against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation) arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Offering Memorandum or Offering Memorandum or in
any amendment or supplement thereto, or arising out of or based upon 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, liabilities or expenses arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with the information relating to the Initial
Purchaser or the plan of distribution furnished in writing to the Company by or
on behalf of the Initial Purchaser expressly for use in connection therewith;
provided,however, that the indemnification contained in this paragraph (a) with
respect to the Preliminary Offering Memorandum shall not inure to the benefit of
the Initial Purchaser (or to the benefit of any person controlling the Initial
Purchaser) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Notes by the Initial Purchaser to any person if the
untrue statement or alleged untrue statement or omission or alleged omission of
a material fact contained in the Preliminary Offering Memorandum was corrected
in the Offering Memorandum and the Initial Purchaser sold Notes to that person
without sending or giving at or prior to the written confirmation of such sale,
a copy of the Offering Memorandum (as then amended or supplemented) if the
Company has previously furnished sufficient copies thereof to the Initial
Purchaser on a timely basis to permit such sending or giving. The foregoing
indemnity
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agreement shall be in addition to any liability which the Company or
the Guarantors may otherwise have.
(b) If any action, suit or proceeding shall be brought against
the Initial Purchaser or any person controlling the Initial Purchaser in respect
of which indemnity may be sought against the Company or the Guarantors, the
Initial Purchaser or such controlling person shall promptly notify the parties
against whom indemnification is being sought (the "indemnifying parties"), and
such indemnifying parties shall assume the defense thereof, including the
employment of counsel and payment of all fees and expenses. The Initial
Purchaser or any such controlling person shall have the right to employ separate
counsel in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the Initial Purchaser or such controlling person unless (i) the indemnifying
parties have agreed in writing to pay such fees and expenses, (ii) the
indemnifying parties have failed to assume the defense and employ counsel, or
(iii) the named parties to any such action, suit or proceeding (including any
impleaded parties) include both the Initial Purchaser or such controlling person
and the indemnifying parties and the Initial Purchaser or such controlling
person shall have been advised by its counsel that representation of such
indemnified party and any indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct (whether or not
such representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the indemnifying party
shall not have the right to assume the defense of such action, suit or
proceeding on behalf of the Initial Purchaser or such controlling person). It is
understood, however, that the indemnifying parties shall, in connection with any
one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for the Initial Purchaser and controlling persons not
having actual or potential differing interests with the Initial Purchaser or
among themselves, which firm shall be designated in writing by the Initial
Purchaser, and that all such fees and expenses shall be reimbursed on a monthly
basis as provided in paragraph (a) hereof. The indemnifying parties shall not be
liable for any settlement of any such action, suit or proceeding effected
without their written consent, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, the indemnifying parties agree to indemnify and hold harmless the
Initial Purchaser and any such controlling person, to the extent provided in
paragraph (a), from and against any loss, claim, damage, liability or expense by
reason of such settlement or judgment.
(c) The Initial Purchaser agrees to indemnify and hold
harmless the Company, the Guarantors and their directors and officers, and any
person who controls the Company or the Guarantors within the meaning of Section
15 of the Act or Section 20 of the Exchange Act to the same extent as the
indemnity from the Company and the Guarantors to the Initial Purchaser set forth
in paragraph (a) hereof, but only with respect to information
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relating to the Initial Purchaser or the plan of distribution furnished in
writing by or on behalf of the Initial Purchaser expressly for use in the
Preliminary Offering Memorandum or Offering Memorandum or any amendment or
supplement thereto. If any action, suit or proceeding shall be brought against
the Company, the Guarantors, their directors or officers, or any such
controlling person based on the Preliminary Offering Memorandum or Offering
Memorandum, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against the Initial Purchaser pursuant to this paragraph
(c), the Initial Purchaser shall have the rights and duties given to the Company
and the Guarantors by paragraph (b) above (except that if the Company and the
Guarantors shall have assumed the defense thereof the Initial Purchaser shall
not be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the Initial Purchaser's expense), and the Company, the Guarantors,
their directors and officers, and any such controlling person shall have the
rights and duties given to the Initial Purchaser by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which the
Initial Purchaser may otherwise have.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors on the one hand and the Initial Purchaser on the
other hand from the offering of the Notes, 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 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, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantors on the one hand and the
Initial Purchaser on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total discount received by the Initial Purchaser, in
each case as set forth in the table on the cover page of the Offering
Memorandum. The relative fault of the Company and the Guarantors on the one hand
and the Initial Purchaser on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied by
the Company and the Guarantors on the one hand or by the Initial Purchaser on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) Each of the Company, the Guarantors and the Initial
Purchaser agree that it would not be just and equitable if contribution pursuant
to this Section 6 were determined
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by a pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitation set forth above, any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating any claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 6, the Initial Purchaser shall
not be required to contribute any amount in excess of the amount by which the
total discount received by it with respect to the Notes exceeds the amount of
any damages which 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 6 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 6 and the
representations and warranties of the Company and the Guarantors set forth in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of the Initial Purchaser or any
persons controlling the Initial Purchaser, the Company, the Guarantors, their
directors or officers or any person controlling the Company or the Guarantors,
(ii) acceptance of any Notes and payment therefore hereunder, and (iii) any
termination of this Agreement. A successor to the Initial Purchaser, its
officers or directors or any person controlling the Initial Purchaser, or to the
Company or the Guarantors, their directors or officers or any person controlling
the Company or the Guarantors, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
6.
(g) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
7. Conditions of the Initial Purchaser's Obligation. The
obligation of the Initial Purchaser to purchase the Notes is subject to the
following conditions:
(a) At the time of execution of this Agreement and on the
Closing Date, no order or decree preventing the use of the Offering Memorandum
or any amendment or supplement thereto, or any order asserting that the
transactions contemplated by the Agreement are subject to the registration
requirements of the Act shall have been issued and
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no proceedings for that purpose shall have been commenced or shall be pending
or, to the knowledge of the Company, be contemplated. No stop order suspending
the sale of the Notes in any jurisdiction designated by the Initial Purchaser
shall have been issued and no proceedings for that purpose shall have been
commenced or shall be pending or, to the knowledge of the Company, shall be
contemplated.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of the Company or the
Subsidiaries not contemplated by the Offering Memorandum, which in the opinion
of the Initial Purchaser, would materially adversely affect the market for the
Notes, or (ii) any event or development relating to or involving the Company or
any officer or director of the Company which makes any material statement made
in the Offering Memorandum untrue or which, in the opinion of the Company and
its counsel or the Initial Purchaser and its counsel, requires the making of any
addition to or change in the Offering Memorandum in order to state a material
fact required by any law to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, if amending or supplementing the Offering Memorandum to reflect
such event or development would, in the opinion of the Initial Purchaser,
materially adversely affect the market for the Notes.
(c) The Initial Purchaser shall have received on the Closing
Date an opinion of Xxxxxxx & Xxxxx, counsel for the Company dated the Closing
Date and addressed to the Initial Purchaser, to the effect that:
(i) The Company is a corporation validly existing in good
standing under the laws of Arizona with full corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Offering Memorandum (and any amendment or supplement thereto);
(ii) Each of the Company and the Guarantors has the
corporate power and authority to enter into this Agreement and the Registration
Rights Agreement and, in the case of the Company, to issue, sell and deliver the
Notes to be sold by it to the Initial Purchaser as provided herein, and this
Agreement and the Registration Rights Agreement have been duly authorized,
executed and delivered by the Company and the Guarantors and are the valid,
legal and binding agreements of the Company and the Guarantors, enforceable
against the Company and the Guarantors in accordance with their terms, except
(A) as enforcement of rights to indemnity and contribution hereunder and
thereunder may be limited by Federal or state securities laws or principles of
public policy, (B) that a court may not give effect to the choice of law or
forum selection clauses of such agreements and (C) subject to the qualification
that the enforceability of the Company's and the Guarantors' obligations
hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance and
transfer,
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insolvency, reorganization, moratorium, and other similar laws affecting
creditors' rights generally, by general equitable principles and by usury laws;
(iii) The Indenture has been duly and validly authorized,
executed and delivered by the Company and the Guarantors and, assuming due
authorization, execution and delivery by the Trustee, is a valid and binding
agreement of the Company and the Guarantors, enforceable in accordance with its
terms, subject to the qualification that (A) the enforceability of the Company's
and the Guarantors' obligations thereunder may be limited by bankruptcy,
fraudulent conveyance and transfer, insolvency, reorganization, moratorium, and
other similar laws affecting creditors' rights generally, by general equitable
principles and (B) that a court may not give effect to the choice of law or
forum selection clauses of the Indenture; no qualification of the Indenture
under the 1939 Act is required in connection with the offer and sale of the
Notes contemplated hereby or in connection with the Exempt Resales;
(iv) The Notes have been duly and validly authorized by
the Company and when executed by the Company in accordance with the Indenture
and, assuming due authentication of the Notes by the Trustee, upon delivery to
the Initial Purchaser against payment therefor in accordance with the terms
hereof, will have been validly issued and delivered, and will constitute valid
and binding obligations of the Company enforceable in accordance with their
terms and entitled to the benefits of the Indenture, subject to the
qualification that the enforceability of the Company's obligations thereunder
may be limited by bankruptcy, fraudulent conveyance and transfer, insolvency,
reorganization, moratorium, and other laws relating to or affecting creditors'
rights generally, by general equitable principles and by usury laws;
(v) Neither the offer, sale or delivery of the Notes, the
execution, delivery or performance by the Company or the Guarantors of this
Agreement, the Registration Rights Agreement or the Indenture, compliance by the
Company and the Guarantors with the provisions hereof or thereof nor
consummation by the Company and the Guarantors of the transactions contemplated
hereby or thereby conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the certificate or articles of
incorporation or bylaws of the Company or any of the Subsidiaries or any
agreement, indenture, lease or other instrument which the Company has filed as
an exhibit to its periodic reports under the Exchange Act, or has identified to
such counsel as requiring filing thereunder, results or will result in the
creation or imposition of any lien, charge or encumbrance upon any material
property or assets of the Company or any of the Subsidiaries, nor will any such
action result in any violation in any material respect of any existing law, of
any regulation, ruling (assuming compliance with all applicable state securities
and Blue Sky laws), judgment, injunction, order or decree known to such counsel,
applicable to the Company, the Subsidiaries or any of their respective
properties;
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(vi) Each of the Guarantees has been duly and validly
authorized by the appropriate Guarantor and when executed by each such Guarantor
in accordance with the Indenture and, assuming due authentication of the Notes
by the Trustee, upon delivery to the Initial Purchaser against payment therefor
in accordance with the terms hereof, will have been validly issued and
delivered, and will constitute valid and binding obligations of the appropriate
Guarantor enforceable in accordance with its terms and entitled to the benefits
of the Indenture, subject to the qualification that the enforceability of each
of the Guarantors' obligations thereunder may be limited by bankruptcy,
fraudulent conveyance and transfer, insolvency, reorganization, moratorium, and
other laws relating to or affecting creditors' rights generally, by general
equitable principles and by usury laws;
(vii) No consent, approval, authorization or other order
of, or registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official is required on the part of
the Company for the valid issuance and sale of the Notes to the Initial
Purchaser as contemplated by this Agreement and the Indenture (except such as
may be required under securities or Blue Sky laws of various jurisdictions);
(viii) Each Subsidiary is a corporation validly existing
and in good standing under the laws of the jurisdiction of its organization,
with full corporate power and authority, as the case may be, to own, lease, and
operate its properties and to conduct its business as described in the Offering
Memorandum (and any amendment or supplement thereto); and all the outstanding
shares of capital stock or other equity securities of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and nonassessable,
and are owned by the Company directly, or indirectly through one of the other
Subsidiaries, free and clear of any security interest, lien, adverse claim,
equity or other encumbrance;
(ix) To the knowledge of such counsel after reasonable
inquiry, (A) other than as described in the Offering Memorandum (or any
supplement thereto), there are no legal or governmental proceedings pending or
threatened against the Company or any of the Subsidiaries or to which the
Company or any of the Subsidiaries or any of their properties, are subject,
which are not disclosed in the Offering Memorandum or the Incorporated Documents
which would be required to be disclosed pursuant to Item 103 of Regulation S-K
under the Act and (B) there are no material agreements, contracts, indentures,
leases or other instruments, which the Company has filed as an exhibit to its
periodic reports under the Exchange Act, or has identified to us as requiring
filing thereunder that are not described in the Offering Memorandum (or any
amendment or supplement thereto) or described or incorporated by reference in
the Incorporated Documents to the extent that such description is required to be
included to avoid a material omission or misstatement in such documents;
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(x) The statements contained or incorporated by reference
in the Offering Memorandum, insofar as they are descriptions of specified
written contracts, agreements or other legal documents, or refer to statements
of law or legal conclusions, are accurate in all material respects and present
fairly the information required to be shown and each of the Incorporated
Documents (except for the financial statements and the notes thereto and the
schedules and other financial and statistical data included therein or omitted
therefrom, as to which counsel need not express any opinion) complied as to form
in all material respects with the Exchange Act and the rules and regulations of
the Commission thereunder;
(xi) Except as described in the Offering Memorandum, such
counsel does not know of any person who has the right, contractual or otherwise,
to cause the Company to sell or otherwise issue to them, or to permit them to
underwrite the sale of, any of the Notes or the right, as a result of the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement, to require registration under the Act of any
shares of Common Stock or other securities of the Company;
(xii) When the Notes are issued and delivered pursuant to
this Agreement, such Notes will not be of the same class (within the meaning of
Rule 144A(d) (3) under the Act) as any security of the Company that is listed on
a national securities exchange registered under Section 6 of the Exchange Act or
that is quoted in a United States automated interdealer quotation system;
(xiii) No registration of the Notes under the Act or
qualification of the Indenture under the 1939 Act is required for the sale of
the Notes to the Initial Purchaser or for the Exempt Resales in the manner
contemplated by the Purchase Agreement and the Offering Memorandum;
(xiv) The Company is not required to obtain stockholder
consent for the issuance of offering of the Notes; and
(xv) Although such counsel has not undertaken, except as
otherwise indicated in their opinion, to determine independently, and does not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained or incorporated by reference in the Offering Memorandum,
such counsel has participated in the preparation of the Offering Memorandum,
including review and discussion of the contents thereof (including a review and
discussion of the contents of all Incorporated Documents), and nothing has come
to the attention of such counsel that has caused them to believe that the
Offering Memorandum (including the Incorporated Documents), as of its date and
as of the Closing Date (except to the extent that information disclosed in an
Incorporated Document may be superseded by information contained in subsequently
filed Incorporated Documents), 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, in light of the
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circumstances under which they were made, not misleading or that any amendment
or supplement to the Offering Memorandum, as of its respective date, and as of
the Closing Date, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements and the notes thereto and the
schedules and other financial and statistical data included or incorporated by
reference in, or omitted from, the Offering Memorandum).
The opinion of such counsel may be limited to the laws of the
United States and the States of Arizona, Florida and Wisconsin and the corporate
law of Delaware and Nevada; with respect to other jurisdictions counsel may rely
upon an opinion or opinions, each dated the Closing Date, of other counsel
retained by them or the Company as to the laws of any such other jurisdictions,
provided that (1) each such other counsel is acceptable to the Initial
Purchaser, (2) such reliance is expressly authorized by each opinion so relied
upon and a copy of each such opinion is delivered to the Initial Purchaser and
is, in form and substance, reasonably satisfactory to the Initial Purchaser and
its counsel, and (3) counsel shall state in their opinion that they have no
reason to believe that they and the Initial Purchaser are not justified in
relying thereon.
(d) The Initial Purchaser shall have received on the Closing
Date an opinion of Xxxx X. Xxxxx, Esq., general counsel of the Company, dated
the Closing Date and addressed to the Initial Purchaser to the effect that:
(i) The Company is duly registered and qualified to
conduct its business and is in good standing as a foreign corporation in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
so to register or qualify or to be in good standing does not have, individually
or in the aggregate, a Material Adverse Effect;
(ii) Each Subsidiary is duly registered and qualified to
conduct its business and is in good standing as a foreign corporation in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
so to register or qualify or to be in good standing does not have, individually
or in the aggregate, a Material Adverse Effect;
(iii) Neither the Company nor any of the Subsidiaries is
in violation of its respective certificate or articles of incorporation, or
bylaws, or other organizational documents, or to the best knowledge of such
counsel after reasonable inquiry, is in default in the performance of any
material obligation, agreement or condition contained in any bond, debenture,
note or other evidence of indebtedness or in any material agreement, indenture,
lease or other instrument to which the Company or any of the Subsidiaries is a
party or by
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which any of them or any of their respective properties may be bound, except as
disclosed in the Offering Memorandum;
(iv) Neither the Company nor any of the Subsidiaries is
in material violation of any law, ordinance, administrative or governmental rule
or regulation applicable to the Company or any of the Subsidiaries or of any
decree of any court or governmental agency or body having jurisdiction over the
Company or any of the Subsidiaries;
(v) The Company and each of its Subsidiaries have full
corporate power and authority to own their respective properties and to conduct
their respective businesses as now being conducted as described in the Offering
Memorandum and have all Permits that are required to own their respective
properties and to conduct their respective businesses as now being conducted as
described in the Offering Memorandum except where the failure to have any such
Permits would not, individually or in the aggregate, have a Material Adverse
Effect;
(vi) To our knowledge, except as disclosed in the
Offering Memorandum, no change in any insurance laws, regulations or
administrative practices or NAIC recommendations, guidelines or model laws or
regulations is pending with a reasonable possibility of adoption that, if
adopted, is reasonably expected to have, individually or in the aggregate with
all such changes, a Material Adverse Effect; and
(vii) Neither the offer, sale or delivery of the Notes,
the execution, delivery or performance by the Company of this Agreement, the
Registration Rights Agreement or the Indenture, compliance by the Company with
the provisions hereof or thereof nor consummation by the Company of the
transactions contemplated hereby or thereby conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the certificate
or articles of incorporation, or bylaws or other organizational documents of any
of the Company's Subsidiaries or any material agreement, indenture, lease or
other instrument to which any of the Subsidiaries is a party or by which any of
them or any of their respective material properties is bound, results or will
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of any of the Subsidiaries pursuant to the terms of any
material agreement or instrument to which any of them is a party or by which any
of them may be bound or to which any of the material property or assets of any
of them is subject, nor will any such action result in any violation in any
material respect of any existing law, or any regulation, ruling (assuming
compliance with all applicable state securities and Blue Sky laws), judgment,
injunction, order or decree known to such counsel, applicable to the
Subsidiaries or any of their respective properties.
(e) The Initial Purchaser shall have received on the Closing
Date an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel for
the Initial Purchaser, dated the Closing Date, and addressed to the Initial
Purchaser, with respect to such matters as the Initial Purchaser may reasonably
request.
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(f) The Initial Purchaser shall have received letters
addressed to the Initial Purchaser, and dated the date hereof and the Closing
Date from Xxxxxx Xxxxxxxx LLP, independent certified public accountants,
substantially in the forms heretofore approved by the Initial Purchaser.
(g) (i) There shall not have been any change in the capital
stock of the Company nor any material increase in the short-term or long-term
debt of the Company (other than in the ordinary course of business) from that
set forth in the Offering Memorandum; (ii) there shall not have been, since the
respective dates as of which information is given in the Offering Memorandum,
except as may otherwise be stated therein, any material adverse change in the
condition (financial or other), business, prospects, properties, net worth or
results of operations of the Company and the Subsidiaries taken as a whole;
(iii) the Company and the Subsidiaries shall not have any liabilities or
obligations, direct or contingent (whether or not in the ordinary course of
business), that are material to the Company and the Subsidiaries, taken as a
whole, other than those reflected in the Offering Memorandum; and (iv) all the
representations and warranties of the Company and the Guarantors contained in
this Agreement shall be true and correct in all material respects on and as of
the date hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and the Initial Purchaser shall have received a certificate, dated
the Closing Date and signed by the chief executive officer and the chief
financial officer of the Company and each of the Guarantors (or such other
officers as are acceptable to the Initial Purchaser), to the effect set forth in
this Section 7(g) and in Section 7(h) hereof.
(h) The Company and the Guarantors shall not have failed at or
prior to the Closing Date to have performed or complied with any of their
agreements herein contained and required to be performed or complied with by
them hereunder at or prior to the Closing Date.
(i) After the date hereof and at or prior to the Closing Date
there shall not have been any announcement by any "nationally recognized
statistical rating organization," as defined for purposes of Rule 436 (g) under
the Act, that (i) it is downgrading its rating assigned to any class of
securities of the Company, or (ii) it is reviewing its ratings assigned to any
class of securities of the Company with a view to possible downgrading, or with
negative implications, or direction not determined.
(j) The Notes shall have been approved for trading on PORTAL.
(k) On or prior to the Closing, the Company shall have entered
into the Amended Credit Facility (as defined in the Preliminary Offering
Memorandum).
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(l) The Company shall have furnished or caused to be furnished
to the Initial Purchaser such further certificates and documents as the Initial
Purchaser shall have reasonably requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Initial Purchaser and counsel for the
Initial Purchaser.
Any certificate or document signed by any officer of the
Company or the Guarantors and delivered at Closing to the Initial Purchaser, or
to counsel for the Initial Purchaser, shall be deemed a representation and
warranty by the Company or such Guarantor to the Initial Purchaser as to the
statements made therein.
8. Expenses. (a) Whether or not the purchase and sale of the
Notes hereunder is consummated or this Agreement is terminated pursuant to
Section 9, the Company agrees to pay the following costs and expenses and all
other costs and expenses incident to the performance by it of its obligations
hereunder: (i) the preparation, printing or reproduction of the Preliminary
Offering Memorandum, Offering Memorandum (including financial statements
thereto), and each amendment or supplement to any of them; (ii) the delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of the Offering Memorandum, the Preliminary Offering Memorandum,
and all amendments or supplements to any of them as may be reasonably requested
for use in connection with the offering and sale of the Notes; (iii) the
preparation, printing, authentication, issuance and delivery of certificates for
the Notes, including any stamp taxes in connection with the original issuance
and sale of the Notes; (iv) the printing (or reproduction) and delivery of this
Agreement, and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Notes; (v) the application for
quotation of the Notes on the PORTAL market; (vi) the qualification of the Notes
for offer and sale under the securities or Blue Sky laws of the several states
as provided in Section 4(f) hereof; (vii) the performance by the Company of its
obligations under the Registration Rights Agreement; (viii) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company; (ix) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Notes; and (x) any fees payable
in connection with the rating of the Notes.
(b) If the purchase and sale of the Notes hereunder is not
consummated because any condition to the obligations of the Initial Purchaser
set forth in Section 7 hereof is not satisfied, because this Agreement is
terminated pursuant to Section 9 hereof or because of any failure, refusal or
inability on the part of the Company to perform all obligations and satisfy all
conditions on their part to be performed or satisfied hereunder other than by
reason of a default by the Initial Purchaser in payment for the Notes on the
Closing Date, the Company shall reimburse the Initial Purchaser promptly upon
demand for all out-of-pocket
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expenses (including fees and disbursements of counsel) that shall have been
incurred by it in connection with the proposed purchase and sale of the Notes
and the other transactions contemplated hereby.
9. Termination of Agreement. This Agreement shall be subject
to termination in the absolute discretion of the Initial Purchaser, without
liability on the part of the Initial Purchaser to the Company, by notice to the
Company, if prior to the Closing Date, (i) trading in securities generally, or
any securities of the Company, on the New York Stock Exchange, the American
Stock Exchange or the NASDAQ National Market shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking activities
in New York or Chicago shall have been declared, or (iii) there shall have
occurred any outbreak or escalation of hostilities or other U.S. or
international calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United States is
such as to make it, in the judgment of the Initial Purchaser, impracticable or
inadvisable to commence or continue the offering of the Notes on the terms set
forth on the cover page of the Offering Memorandum or to enforce contracts for
the resale of the Notes by the Initial Purchaser. Notice of such termination may
be given to the Company by telegram, telecopy or telephone and shall be
subsequently confirmed by letter.
10. Information Furnished by the Initial Purchaser. The
statements set forth in the stabilization legend on the inside front cover, the
last paragraph on the cover page and the statements in the first, third and
penultimate paragraphs and the first, second and final sentence of the final
paragraph under the caption "Plan of Distribution" in the Preliminary Offering
Memorandum and Offering Memorandum, constitute the only information furnished in
writing by or on behalf of the Initial Purchaser as such information is referred
to in Sections 5 (b) and 6 hereof.
11. Miscellaneous. Except as otherwise provided in Sections 4
and 9 hereof, notice given pursuant to any provision of this Agreement shall be
in writing and shall be delivered (i) if to the Company, at the office of the
Company at 0000 X. 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxx X.
Xxxxx, Senior Vice President, General Counsel and Secretary, with a copy to
Xxxxxxx X. Xxxxxxx, Esq., Xxxxxxx & Xxxxx, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000 or (ii) if to the Initial Purchaser, care of First Chicago
Capital Markets Inc., Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx XX, 00000,
Attention: Corporate Securities Structuring with a copy to Skadden, Arps, Slate,
Xxxxxxx & Xxxx (Illinois), 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attn: Xxxxxxx X. Xxxxxx.
This Agreement has been and is made solely for the benefit of
the Initial Purchaser, the Company, its directors, its officers and the
controlling persons referred to in Section 6 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
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shall include a purchaser from the Initial Purchaser of any of the Notes in his
status as such purchaser.
12. Applicable Law: Governing Law; Consent to Jurisdiction;
Waiver of Immunity and of Right to Jury Trial; Counterparts. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be performed within the State of
New York and without regard to the conflicts of law principles thereof. Each of
the Company and the Guarantors agrees that any action or proceeding based
hereon, or arising out of the transactions contemplated hereunder, shall be
brought and maintained in the courts of the State of New York located in the
city and county of New York or in the United States District Court for the
Southern District of New York. Each of the Company and the Guarantors hereby
irrevocably submits to the exclusive jurisdiction of the courts of the State of
New York located in the city and county of New York and the United States
District Court for the Southern District of New York for the purpose of any such
action or proceeding as set forth above and irrevocably agrees to be bound by
any judgment rendered thereby in connection with such action or proceeding. Each
of the Company and the Guarantors hereby irrevocably appoints Lawdock, Inc., Xxx
Xxxx Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 as their authorized agent
upon which process may be served in any action arising out of based upon this
Agreement. Each of the Company and the Guarantors hereby expressly and
irrevocably waives to the fullest extent permitted by law any immunity from
jurisdiction of any such court and any objection, claim or defense in any such
action or proceeding which they may have, or hereafter may have, based on a
claim of improper venue, forum non conveniens or any similar basis to which the
Company or the Guarantors might otherwise be entitled in any such action or
proceeding.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the
agreement between the Company, the Guarantors and the Initial Purchaser.
Very truly yours,
EMPLOYEE SOLUTIONS, INC.
By: /s/
---------------------------------
Name:
Title:
EMPLOYEE SOLUTIONS-EAST, INC.
By: /s/
---------------------------------
Name:
Title:
EMPLOYEE SOLUTIONS-SOUTHEAST, INC.
By: /s/
---------------------------------
Name:
Title:
LOGISTICS PERSONNEL CORP.
By: /s/
---------------------------------
Name:
Title:
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31
TALENT, ENTERTAINMENT AND MEDIA
SERVICES, INC. dba ESI TEAM SERVICES
By: /s/
---------------------------------
Name:
Title:
EMPLOYEE SOLUTIONS OF TEXAS, INC.
By: /s/
---------------------------------
Name:
Title:
EMPLOYEE SOLUTIONS-MIDWEST, INC.
By: /s/
---------------------------------
Name:
Title:
EMPLOYEE SOLUTIONS-OHIO, INC.
By: /s/
---------------------------------
Name:
Title:
ESI-MIDWEST, INC.
By: /s/
---------------------------------
Name:
Title:
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32
ESI RISK MANAGEMENT AGENCY, INC.
By: /s/
---------------------------------
Name:
Title:
GCK ENTERTAINMENT SERVICES, INC.
dba ESI TEAM SERVICES
By: /s/
---------------------------------
Name:
Title:
ESI AMERICA, INC.
By: /s/
---------------------------------
Name:
Title:
PHOENIX CAPITAL MANAGEMENT, INC.
By: /s/
---------------------------------
Name:
Title:
EMPLOYEE RESOURCES CORPORATION
By: /s/
---------------------------------
Name:
Title:
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33
ERC OF INDIANA, INC.
By: /s/
---------------------------------
Name:
Title:
ERC OF MINN, INC.
By: /s/
---------------------------------
Name:
Title:
ERC OF OHIO, INC.
By: /s/
---------------------------------
Name:
Title:
Confirmed as of the date
first above mentioned.
FIRST CHICAGO CAPITAL MARKETS, INC.
By: /s/
---------------------------------
Name:
Title:
