EXHIBIT 10(b)
XXXXXX XXXXX COMMAND COMPANY
$135,000,000
8.125% SENIOR NOTES DUE 2008
GUARANTEED ON AN UNSECURED SENIOR SUBORDINATED BASIS
BY
XXXXXX XXXXX CORP.
PURCHASE AGREEMENT
New York, New York
April 2, 1998
Salomon Brothers Inc
CIBC Xxxxxxxxxxx Corp.
PaineWebber Incorporated
As Representatives of the Initial Purchasers
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
Xxxxxx Xxxxx Command Company, a Nova Scotia unlimited liability
company (the "Company"), proposes to issue and sell to the parties named in
Schedule I hereto (the "Initial Purchasers"), for whom you are acting as
representatives (the "Representatives"), $135,000,000 principal amount of its
8.125% Senior Notes Due 2008 (the "Securities") which will be guaranteed on an
unsecured senior subordinated basis by Xxxxxx Xxxxx Corp., a Pennsylvania
corporation (the "Parent"). The Securities are to be issued under an indenture
(the "Indenture") dated as of April 7, 1998 among the Company, the Parent and
The Bank of New York, as trustee. If you are the only Initial Purchasers, all
references herein to the Representatives shall be deemed to be to the Initial
Purchasers. The Company is a Wholly Owned Subsidiary (as defined in the
Indenture) of the Parent.
The sale of the Securities to the Initial Purchasers will be made
without registration of the Securities under the Securities Act of 1933, as
amended (the "Securities Act"), in reliance upon exemptions from the
registration requirements of the Securities Act. You have advised the
Company that the Initial Purchasers will offer and sell the Securities
purchased by them hereunder in accordance with Section 4 hereof as soon as you
deem advisable.
In connection with the sale of the Securities, the Company and the
Parent have prepared a preliminary offering memorandum, dated March 26, 1998
(the "Preliminary Memorandum"), and a final offering memorandum, dated April 2,
1998 (the "Final Memorandum" and together with the Preliminary Memorandum, the
"Memorandum"). Each of the Preliminary Memorandum and the Final Memorandum
sets forth certain information concerning the Company, the Parent and the
Securities. Each of the Company and the Parent hereby confirms that it has
authorized the use of the Preliminary Memorandum and the Final Memorandum, and
any amendment or supplement thereto, in connection with the offer and sale of
the Securities by the Initial Purchasers. Unless stated to the contrary, all
references herein to the Final Memorandum are to the Final Memorandum at the
Execution Time (as defined below) and are not meant to include any amendment or
supplement subsequent to the Execution Time.
1. Representations and Warranties. Each of the Company and the
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Parent represents and warrants to each Initial Purchaser as set forth below in
this Section 1.
(a) The Preliminary Memorandum, at the date thereof, did not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Final
Memorandum, at the date hereof, does not, and at the Closing Date (as
defined below) will not, taking into account any amendment or supplement
thereto (and any amendment or supplement thereto, at the date thereof and
at the Closing Date, will not), contain any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company and the Parent make no
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representation or warranty as to the information contained in or omitted
from the Preliminary Memorandum or the Final Memorandum, or any amendment
or supplement thereto, in reliance upon and in conformity with information
furnished in
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writing to the Company by or on behalf of the Initial Purchasers through
the Representatives specifically for inclusion therein.
(b) Neither the Company, the Parent, nor any of their Affiliates (as
defined in Rule 501(b) of Regulation D under the Securities Act
("Regulation D")), nor any person acting on its or their behalf has,
directly or indirectly, made offers or sales of any security, or solicited
offers to buy any security, under circumstances that would require the
registration of the Securities under the Securities Act.
(c) Neither the Company, the Parent, nor any of their Affiliates nor
any person acting on its or their behalf (other than the Initial Purchasers
as to which no representation is made) has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States.
(d) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(e) Neither the Company, the Parent, nor any of their Affiliates, nor
any person acting on its or their behalf (other than the Initial Purchasers
as to which no representation is made) has engaged in any directed selling
efforts with respect to the Securities, and each of them has complied with
the offering restrictions requirement of Regulation S ("Regulation S")
under the Securities Act. Terms used in this paragraph have the meanings
given to them by Regulation S.
(f) Each of the Company and the Parent is not and, upon sale of the
Securities to be issued and sold in accordance herewith and upon
application of the net proceeds from such sale as described in the
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 (the "1940 Act"), without taking account of any exemption arising
out of the number of holders of the Company's or the Parent's securities.
(g) The Parent is subject to and in compliance in all material
respects with the reporting requirements of Section 13 or Section 15(d) of
the Exchange Act.
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(h) Neither the Company nor the Parent has paid or agreed to pay to
any person any compensation for soliciting another to purchase any of the
Securities (except as contemplated by this Agreement).
(i) The information provided by the Company and the Parent pursuant to
Section 5(h) hereof will not, at the date thereof, contain any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(j) Assuming the representations of the Initial Purchasers set for in
Section 4 hereof are true and correct, it is not necessary in connection
with the offer, sale and delivery of the Securities to the Initial
Purchasers in the manner contemplated by this Agreement to register the
Securities under the Securities Act or to qualify the Indenture under the
Trust Indenture Act of 1939, as amended.
(k) The Indenture has been duly and validly authorized and, upon its
execution and delivery by the Company and the Parent and assuming due
execution and delivery by the Trustee, will be a valid and binding
agreement of the Company and the Parent, enforceable in accordance with its
terms, except (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, (ii) the remedy of specific performance and other forms of
equitable relief may be subject to certain equitable defenses and to the
discretion of the court before which the proceedings may be brought and
(iii) rights to indemnity and contribution hereunder or thereunder may be
limited by federal or state or provincial or foreign securities laws or the
public policy underlying such laws and the Indenture conforms to the
description thereof in the Memorandum.
(l) The Securities when executed by the Company and authenticated by
the Trustee in accordance with the Indenture and delivered to you 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 entitled to the benefits of the Indenture and
enforceable in accordance with their terms, except (i) the enforceability
hereof or thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or hereafter
in effect relating to
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creditors' rights generally, (ii) the remedy of specific performance and
other forms of equitable relief may be subject to certain equitable
defenses and to the discretion of the court before which the proceedings
may be brought and (iii) rights to indemnity and contribution hereunder or
thereunder may be limited by federal or state or provincial or foreign
securities laws or the public policy underlying such laws and the
Securities will conform to the description thereof in the Memorandum.
(m) The Registration Agreement (as defined in the Final Memorandum)
has been duly and validly authorized and, upon its execution and delivery
by the Company and the Parent and assuming due execution and delivery by
the Initial Purchasers, will be a valid and binding agreement of each of
the Company and the Parent, enforceable in accordance with its terms,
except (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, (ii) the remedy of specific performance and other forms of
equitable relief may be subject to certain equitable defenses and to the
discretion of the court before which the proceedings may be brought and
(iii) rights to indemnity and contribution hereunder or thereunder may be
limited by federal or state or provincial or foreign securities laws or the
public policy underlying such laws.
(n) The authorized and outstanding capital stock of the Parent as of
March 20, 1998 is as set forth under the caption "Description of Capital
Stock of Xxxxxx Xxxxx" in the Memorandum.
(o) The Parent is a corporation duly organized and validly subsisting
under the laws of the Commonwealth of Pennsylvania with full corporate
power and authority to own, lease and operate its properties and to conduct
its business as described in the Memorandum. The Parent is duly registered
and qualified to conduct its business and in good standing in each
jurisdiction 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 would not be reasonably likely to (1)
have a material adverse effect on the condition (financial or other),
business, properties, shareholders' equity or results of operations of the
Parent and the Subsidiaries (as hereinafter defined), taken as a whole,
or (2) materially adversely affect the consummation
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of any of the transactions contemplated by this Agreement (each of (1), and
(2) above, a "Parent Material Adverse Effect").
(p) The Company is an unlimited liability company duly organized and
validly subsisting under the laws of the Province of Nova Scotia with full
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Memorandum. The Company is
duly registered and qualified to conduct its business and in good standing
in each jurisdiction 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 would not be reasonably likely to (1)
have a material adverse effect on the condition (financial or other),
business, properties, shareholders' equity or results of operations of
the Company, or (2) materially adversely affect the consummation of any of
the transactions contemplated by this Agreement (each of (1), and (2)
above, a "Company Material Adverse Effect").
(q) All the Parent's subsidiaries (as defined in Rule 1-02(x) of
Regulation S-X and as required to be identified by Item 601(b)(21) of
Regulation S-K) are listed in an exhibit to the Parent's Form 10-K for the
fiscal year ended December 31, 1997 filed with the Securities and Exchange
Commission on March 31, 1998 (collectively, with Archivex Limited, the
"Subsidiaries"). Each Subsidiary is either (i) a corporation duly
organized, validly existing and in good standing in the jurisdiction of its
incorporation, or (ii) a partnership duly organized and validly existing
under the applicable laws of the Commonwealth of Pennsylvania. Each
Subsidiary has the requisite corporate or partnership, as the case may be,
power and authority to own, lease and operate its properties and to conduct
its business as described in the 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 would not be reasonably likely to
individually or in the aggregate have a Parent Material Adverse Effect or a
Company Material Adverse Effect. All the outstanding shares of capital
stock of each of the corporate Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable, and are 99% or greater
owned by the Parent directly, or indirectly through one or more of the
other Subsidiaries, free and clear of any material lien, adverse claim,
security interest, equity or other encumbrance, other than the pledge of
such
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shares pursuant to the Amended and Restated Pledge and Intercreditor
Agreement, dated as of July 7, 1997 by and among PLC Command Company I,
L.P., PLC Command Company II, L.P., Canadian Imperial Bank of Commerce,
New York Agency, United States Trust Company of New York and The Bank of
New York, and the Credit Facility (as defined in the Final Memorandum).
(r) There are no legal or governmental proceedings pending or, to the
knowledge of the Company or the Parent, threatened, against the Parent or
any of its Subsidiaries which are reasonably likely to be materially
adverse to the Company, the Parent and its Subsidiaries, taken as a whole,
or to which any of their respective properties is subject which are
reasonably likely to be material to the Company, the Parent and its
Subsidiaries, taken as a whole, that are required to be described in the
Memorandum but are not described therein.
(s) Neither the Parent nor any of its Subsidiaries is (i) in violation
of its certificate or articles of incorporation, memorandum of association,
articles of association, or by-laws, or other similar organizational and
governance documents, (ii) in violation of any statute, law, ordinance,
administrative or governmental rule or regulation applicable to the
Parent or any of its Subsidiaries or of any ruling, judgment, injunction,
order or decree of any court or governmental agency or body having
jurisdiction over the Parent or any of its Subsidiaries (except where any
such violation or violations in the aggregate would not be reasonably
likely to have a Parent Material Adverse Effect or a Company Material
Adverse Effect), or (iii) 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
Parent or any of its Subsidiaries is a party or by which any of them or any
of their respective properties may be bound (except where any such default
or defaults in the aggregate would not be reasonably likely to have a
Parent Material Adverse Effect or a Company Material Adverse Effect).
(t) Assuming the closing of the Archivex Acquisition (as defined in
the Final Memorandum) with respect to clause (iii) of this paragraph (t),
other than as will be obtained, waived or otherwise corrected prior to the
Closing Date, neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement, the Indenture or the
Registration
7
Agreement by the Company and the Parent, as the case may be, nor the
consummation by the Company or the Parent, as the case may be, of the
transactions contemplated hereby and 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, agency or official (except as may be required under any state
securities or foreign laws) or (ii) 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 the Company, the Parent or any of the
Subsidiaries or (iii) conflicts or will conflict with or constitutes or
will constitute a material breach of, or a default under, any agreement,
indenture, lease or other instrument to which the Company, the Parent 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 any
statute, law, regulation or filing (except as may be required under any
state securities or foreign laws) or judgment, injunction, order or decree
applicable to the Company, the Parent 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 property or assets of the
Company, the Parent 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 property or assets of any of them
is subject other than security interests granted pursuant to the Credit
Agreement, the 1996 Notes (as defined in the Memorandum), the 1997 Notes
(as defined in the Memorandum) and the Securities.
(u) The accountants, Xxxxxx Xxxxxxxx LLP and Xxxxxxxx & Xxxxxxxx, who
have certified or shall certify the financial statements set forth in the
Memorandum (or any amendment or supplement thereto) are independent
public accountants.
(v) The historical consolidated financial statements of the Parent,
together with related notes, forming part of the Memorandum (and any
amendment or supplement thereto), and, to the knowledge of the Company and
the Parent, the historical financial statements of Archivex Inc., together
with related notes, forming part of the Memorandum (and any amendment or
supplement thereto), comply with the requirements of the Act and, present
fairly the consolidated financial position, results of operations, cash
flows and changes in financial position of the Parent and its consolidated
subsidiaries,
8
and Archivex Inc., as the case may be, on the basis stated in
the Memorandum at the respective dates or for the respective periods to
which they apply; the statements and related notes of the Parent and its
consolidated subsidiaries and, to the knowledge of the Company and the
Parent, the statements and related notes of Archivex Inc., have been
prepared in accordance with generally accepted accounting principles
(U.S. or Canadian, as applicable) consistently applied throughout the
periods involved, except as disclosed therein; the pro forma financial
information, and the related notes thereto, included in the Memorandum (and
any amendment or supplement thereto) have been prepared in accordance with
the applicable requirements of the Act and the assumptions used in
preparing such information are reasonable; and the other historical and pro
forma financial and statistical information and data set forth in the
Memorandum (and any amendment or supplement thereto) are accurately
presented in all material respects and prepared on a basis consistent with
the books and records of the Parent and its Subsidiaries, as applicable.
(w) The execution and delivery of, and the performance by each of the
Company and the Parent of their respective obligations under this Agreement
have been duly and validly authorized by the Company and the Parent, as the
case may be, and this Agreement has been duly executed and delivered by
each of the Company and the Parent and constitutes the valid and legally
binding agreement of each of the Company and the Parent, enforceable
against such parties in accordance with its terms, except (i) the
enforceability hereof or thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally, (ii) the
remedy of specific performance and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the court
before which the proceedings may be brought and (iii) rights to indemnity
and contribution hereunder or thereunder may be limited by federal or state
or provincial or foreign securities laws or the public policy underlying
such laws.
(x) Except as disclosed or contemplated in the Memorandum (or any
amendment or supplement thereto), subsequent to the respective dates as of
which such information is given in the Memorandum (or any amendment or
supplement thereto), neither the Company, the Parent 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, the Parent and the Subsidiaries
taken as a whole,
9
and there has not been any change in the capital stock of the Company and
the Parent, or material increase in the short-term debt or long-term debt,
of either the Company, the Parent or any of the Subsidiaries, or any
development having or which may reasonably be expected to result in a
Parent Material Adverse Effect or a Company Material Adverse Effect.
(y) Each of the Company, the Parent and the Subsidiaries has good and
valid title to all property (real and personal) described in the Memorandum
as being owned by it which is material to the business of the Parent and
its Subsidiaries taken as a whole, free and clear of all liens, claims,
security interests or other encumbrances except such as are described in
the Memorandum (including without limitation the liens related to long-term
debt set forth in Note 6 of the Parent's consolidated financial statement
contained in the Final Memorandum) and all the property described in the
Memorandum as being held under lease by each of the Company, the Parent and
the Subsidiaries which is material to the business of the Company, the
Parent and the Subsidiaries taken as a whole is held by such entity under
valid, subsisting and enforceable leases, with only such exceptions to all
the foregoing as in the aggregate do not interfere in any material respect
with the conduct of the business of the Company, the Parent and the
Subsidiaries, taken as a whole or the use made or proposed to be made of
such property by the Company, the Parent or their Subsidiaries.
(z) Neither the Company, the Parent nor any affiliate of such parties
has distributed and, prior to the later to occur of (i) the Closing Date
and (ii) completion of the distribution of the Securities, will distribute
any offering material in connection with the offering and sale of the
Securities other than the Preliminary Memorandum, the Final Memorandum or
other materials, if any, permitted by the Act.
(aa) The Company, the Parent and each of the Subsidiaries have such
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("Permits") as are necessary to own their respective
properties and to conduct their business in the manner described in the
Memorandum except where the failure to so possess would not, individually
or in the aggregate, be reasonably likely to have a Parent Material Adverse
Effect or a Company Material Adverse Effect and, subject to such
qualifications as may be set forth in the Memorandum, the Company, the
Parent and each of the Subsidiaries have fulfilled and performed all of
their respective
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material obligations with respect to such Permits and no event
has occurred that allows, or after notice or lapse 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 Memorandum except
where any such revocation, termination or impairment would not be
reasonably likely to have a Parent Material Adverse Effect or a Company
Material Adverse Effect.
(ab) Each of the Company and the Parent 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.
(ac) To the Company's and the Parent's knowledge, neither the Company,
the Parent nor any of their Subsidiaries nor any employee or agent of the
Company, the Parent or any Subsidiary has made any payment of funds of the
Company, the Parent or any Subsidiary or received or retained any funds in
violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the
Memorandum.
(ad) The Company, the Parent and, to the Company's and the Parent's
knowledge, each of the Subsidiaries have filed all tax returns required
to be filed or obtained extensions therefor, which returns are true and
correct in all material respects, and neither the Company, the Parent nor
any Subsidiary is in default in the payment of any taxes which were payable
pursuant to said returns or any assessments with respect thereto except
where the failure to file such returns or to pay such taxes would not be
reasonably likely to have a Parent Material Adverse Effect or a Company
Material Adverse Effect.
(ae) Except as described in the Memorandum, no holder of any security
of the Company or the Parent has any right to require registration of
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any securities of the Company or the Parent because of the consummation of
the transactions contemplated by this Agreement or the filing of the
Exchange Offer (as defined in the Memorandum) or Shelf Registration
Statement (as defined in the Memorandum). Except as described in or
contemplated by the Memorandum, there are no outstanding options, warrants
or other rights calling for the issuance of, and there are no commitments,
plans or arrangements to issue, any shares of capital stock of the Company
or the Parent or any security convertible into or exchangeable or
exercisable for the capital stock of the Company or the Parent, as the case
may be, except under the Parent's stock option or other benefit plans.
(af) The Parent and its Subsidiaries own or possess all patents,
trademarks, trademark registration, service marks, service mark
registrations, trade names, copyrights, licenses, inventions, trade secrets
and rights described in the Memorandum as being owned by them or any of
them or necessary for the conduct of their respective businesses except
where the lack of such ownership or possession would not, individually or
in the aggregate, be reasonably likely to have a Parent Material Adverse
Effect or a Company Material Adverse Effect, and neither the Company nor
the Parent is aware of any claim to the contrary or any challenge by any
other person to the rights of the Company, the Parent and the Subsidiaries
with respect to the foregoing.
(ag) The Company and the Parent and, to the Company's and the
Parent's knowledge, each of their Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as the Company and the Parent deem prudent and customary to
cover replacement costs of real and personal property; subject to certain
limitations and deductibles, such policies also cover extraordinary
expenses associated with business interruption and damage or loss from
fire, flood or earthquakes (in certain geographic areas), and losses at the
Company's and the Parent's facilities of up to approximately $400 million;
neither the Company, the Parent nor, to the knowledge of the Company or
the Parent, any such Subsidiary has been refused any insurance coverage
sought or applied for; and neither the Company, the Parent nor, to the
knowledge of the Company or the Parent, any such Subsidiary has any reason
to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a
cost that would not have a Parent
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Material Adverse Effect or a Company Material Adverse Effect, except as
described in or contemplated by the Memorandum.
(ah) No Subsidiary of the Parent is currently prohibited, directly or
indirectly, from paying any dividends to the Parent from making any other
distribution on such Subsidiary's capital stock, from repaying to the
Company or the Parent, as the case may be, any loans or advances to such
Subsidiary from the Company or the Parent or from transferring any of such
Subsidiary's property or assets to the Company or the Parent or any other
Subsidiary of the Company or the Parent, except as described in or
contemplated by the Memorandum.
(ai) Except for the shares of capital stock or partnership interests
of each of the Subsidiaries owned by the Parent and such Subsidiaries,
neither the Parent nor any such Subsidiary owns any shares of stock or any
other equity securities of any corporation or has any equity interest in
any firm, partnership, association or other entity, except as described in
or contemplated by the Memorandum, except for certain interests which are
not material to the Parent and its Subsidiaries taken as a whole.
(aj) There are no labor disputes with the Company's, the Parent's or
the Subsidiaries' employees that exist or, to the Company's or the Parent's
knowledge, are imminent that are reasonably likely to materially adversely
affect the Company, the Parent and the Subsidiaries taken as a whole, and
each of the Company and the Parent is not aware of any existing or imminent
labor disturbance by any of their or the Subsidiaries' principal suppliers,
contractors or customers that are reasonably likely to have a Parent
Material Adverse Effect or a Company Material Adverse Effect.
(ak) With respect to each employee benefit plan, program and
arrangement (including, without limitation, any "employee benefit plan" as
defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")), maintained or contributed to by the Company,
the Parent or the Subsidiaries, or with respect to which the Company, the
Parent or the Subsidiaries could incur any liability under ERISA
(collectively, the "Benefit Plans"), no Reportable Event (as defined in
Section 4043 of ERISA) has occurred during the five year period to the date
on which this representation is made or deemed to be made and there exists
no condition or set of circumstances in connection with which the Company,
the Parent or the
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Subsidiaries could be reasonably likely to be subject to any liability
under the terms of such Benefit Plan or applicable law (including, without
limitation, ERISA and the Internal Revenue Code of 1986, as amended (the
"Code")) that would be reasonably likely to have a Parent Material Adverse
Effect or a Company Material Adverse Effect.
(al) Except as described in the Final Memorandum, the Company, the
Parent and, to the Company's and the Parent's knowledge, the Subsidiaries
are (i) (A) in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (B) have
received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses, and
(C) and are in compliance with all terms and conditions of any such permit,
license or approval, except, in each case, where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals would not be reasonably likely, singly or in
the aggregate, to have a Parent Material Adverse Effect or a Company
Material Adverse Effect; (ii) except as disclosed in the Memorandum,
there is no civil, criminal or administrative action, suit, demand,
hearing, notice of violation or deficiency, investigation, proceeding or
notice of potential responsibility or liability or demand letter or request
for information pending, or to the knowledge of the Company or the Parent,
threatened against the Company, the Parent or any of their Subsidiaries
under any Environmental Laws which, if determined adversely to any of the
Company or the Parent or any such Subsidiary, would, individually or in the
aggregate, be reasonably likely to result in a Parent Material Adverse
Effect or a Company Material Adverse Effect. Neither the Company, the
Parent nor, to the Company's or the Parent's knowledge, any of the
Subsidiaries has been named as a "potentially responsible party" under
the Comprehensive Environmental Response Compensation and Liability Act
of 1980, as amended.
(am) Each of the Guarantees (as defined in the Indenture) has been
duly and validly authorized and, upon its execution and delivery by each
Guarantor (as defined in the Indenture) will be a valid and binding
agreement of such Guarantor, enforceable in accordance with its terms,
except (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganiza-
14
tion, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, (ii) the
remedy of specific performance and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the court
before which the proceedings may be brought and (iii) rights to indemnity
and contribution hereunder or thereunder may be limited by federal or state
or provincial or foreign securities laws or the public policy underlying
such laws and the Guarantees conform to the description thereof in the
Memorandum.
2. Purchase and Sale. Subject to the terms and conditions and in
-----------------
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Initial Purchaser, and each Initial Purchaser agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
99.641% of the principal amount thereof, plus accrued interest, if any, from
April 7, 1998 to the Closing Date, the principal amount of Securities set forth
opposite such Initial Purchaser's name in Schedule I hereto. In connection with
the purchase and sale of the Securities pursuant to this Agreement, the Company
agrees to pay the Initial Purchasers an aggregate fee of $2,025,000 (the "Fee").
3. Delivery and Payment. Delivery of and payment for the Securities
--------------------
shall be made at 10:00 A.M., New York City time, on April 7, 1998 , or such
later date (not later than April 9, 1998 ) as the Representatives and the
Company shall designate, which date and time may be postponed by agreement
between the Representatives and the Company or as provided in Section 10
hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). The Fee shall be paid to the Initial
Purchasers by the Company on the Closing Date in immediately available funds to
or upon the order of the Initial Purchasers or such other manner of payment as
may be agreed by the Company and the Representatives. Delivery of the Securities
shall be made to the Representatives for the respective accounts of the Initial
Purchasers against payment of the purchase price thereof in immediately
available funds to or upon the order of the Company or such other manner of
payment as may be agreed by the Company and the Representatives. Delivery of the
Securities shall be made at such location as the Representatives shall
reasonably designate at least one business day in advance of the Closing Date
and payment for the Securities and the Fee shall be made at the office of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP ("Counsel for the Initial Purchasers"),
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx. Certificates for the Securities shall be
registered in such names and in such denominations as the Representatives may
request not less than two business days in advance of the Closing Date.
15
The Company agrees to have the Securities available for inspection,
checking by the Representatives in New York, New York, not later than 1:00 P.M.
on the business day prior to the Closing Date.
4. Offering of Securities. Each Initial Purchaser, severally and not
----------------------
jointly, represents and warrants to and agrees, with the Company and the Parent
that:
(a) It has not offered or sold, and will not offer or sell, any
Securities except (i) to those it reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Securities Act)
and that, in connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of such Securities is aware
that such sale is being made in reliance on Rule 144A, or (ii) in
accordance with the restrictions set forth in Exhibit A hereto.
(b) Neither it nor any person acting on its behalf has made or will
make offers or sales of the Securities in the United States by means of any
form of general solicitation or general advertising (within the meaning of
Regulation D) in the United States or in any manner involving a public
offering within the meaning of Section 4(2) of the Act.
(c) All offers and sales of securities outside the United States will
comply with all applicable securities laws thereto, including without
limitation, Canadian federal and provincial laws.
5. Agreements. Each of the Company and the Parent agrees with each
----------
Initial Purchaser that:
(a) The Company and the Parent will furnish to each Initial Purchaser
and to counsel for the Initial Purchasers, without charge (subject to the
following sentence), during the period referred to in paragraph (c) below,
as many copies of the Final Memorandum and any amendments and supplements
thereto as it may reasonably request. The Initial Purchasers will pay the
expenses of printing, distribution or other production of all documents
relating to the offering.
(b) The Company and the Parent will not amend or supplement the Final
Memorandum without the prior written consent of the Representatives which
consent will not be unreasonably withheld.
16
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers (as determined by the
Representatives), any event occurs as a result of which the Final
Memorandum, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it should be necessary to amend
or supplement the Final Memorandum to comply with applicable law, the
Company and the Parent will promptly notify the Representatives of the same
(who thereafter will not use such Final Memorandum until so amended or
supplemented) and, subject to the requirements of paragraph (b) of this
Section 5, will prepare and provide to the Representatives pursuant to
paragraph (a) of this Section 5 an amendment or supplement which will
correct such statement or omission or effect such compliance, provided,
however, that the Company's and the Parent's obligations under this
paragraph (c) shall not be applicable to the extent resale by the Initial
Purchasers may be accomplished pursuant to an effective Registration
Statement (as defined in the Registration Agreement) prepared by the
Company and the Parent pursuant to such effective Registration Agreement.
(d) The Company and the Parent will cooperate with the Initial
Purchasers in arranging for qualification of the Securities for offering
and sale under the securities or "Blue Sky" laws of such jurisdictions as
the Initial Purchasers may reasonably designate and will continue such
qualifications in effect for as long as may be reasonably necessary to
complete the sale of the Securities; provided, however, that the Company
will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which
would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(e) The Company and the Parent will not, and will not permit any of
its Affiliates to, resell any Securities that have been acquired by any of
them.
(f) Neither the Company, the Parent, nor any of their Affiliates, nor
any person acting on its or their behalf will, directly or indirectly, make
offers or sales of any security, or solicit offers to buy any security,
under circumstances that would require the registration of the Securities
under the Securities Act.
17
(g) Neither the Company, the Parent nor any of their Affiliates, nor
any person acting on its or their behalf will engage in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States.
(h) So long as any of the Securities are "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, the Company
will, during any period in which the Company or, if applicable, the Parent,
is not subject to and in material compliance with Section 13 or l5(d) of
the Exchange Act, provide to each holder of such restricted securities and
to each prospective purchaser (as designated by such holder) of such
restricted securities, upon the request of such holder or prospective
purchaser, any information required to be provided by Rule 144A(d)(4) under
the Securities Act. This covenant is intended to be for the benefit of the
holders and the prospective purchasers designated by such holders, from
time to time of such restricted securities.
(i) Neither the Company, the Parent, nor any of their Affiliates, nor
any person acting on its or their behalf will engage in any directed
selling efforts with respect to the Securities, and each of them will
comply with the offering restrictions requirement of Regulation S. Terms
used in this paragraph have the meanings given to them by Regulation S.
(j) The Company and the Parent will cooperate with the Representatives
and use their best efforts to permit the Securities to be eligible for
clearance and settlement through The Depository Trust Company.
(k) The Company will apply the net proceeds from the sale of the
Securities substantially in accordance with the description set forth in
the Memorandum.
6. Conditions to the Obligations of the Initial Purchasers. The
-------------------------------------------------------
obligations of the Initial Purchasers to purchase the Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Company and the Parent contained herein at the date and time that this Agreement
is executed and delivered by the parties hereto (the "Execution Time") , and the
Closing Date, to the accuracy of the statements of the Company and the Parent
made in any certificates pursuant to the provisions hereof, to the performance
in all material respects by the
18
Company and the Parent of their obligations hereunder and to the following
additional conditions:
(a) The Parent shall have furnished to the Representatives the opinion
of Xxxxx and X'Xxxxxx, counsel for the Parent and the Company (with respect
to certain non-Canadian matters), dated the Closing Date, to the effect
that:
(i) The Parent is a corporation duly incorporated and validly
subsisting under the laws of the Commonwealth of Pennsylvania with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Final
Memorandum, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of the
jurisdictions listed on an exhibit thereto;
(ii) Each of the Subsidiaries organized under the laws of the
United States or any State thereof (the "U.S. Subsidiaries") is either
(A) a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, or
(B) a limited partnership duly organized under the laws of the
Commonwealth of Pennsylvania, in each case with full corporate or
partnership, as the case may be, power and authority to own, lease and
operate its properties and to conduct its business as described in the
Final Memorandum;
(iii) The authorized capital stock of the Parent is as set forth
under the caption "Description of Capital Stock of Xxxxxx Xxxxx" in
the Final Memorandum; and the authorized capital stock of the Parent
conforms in all material respects as to legal matters to the
description thereof contained in the Final Memorandum under the
caption "Description of Capital Stock of Xxxxxx Xxxxx";
(iv) The Parent has the requisite corporate power and authority
to enter into this Agreement and this Agreement has been duly
authorized, executed and delivered by the Parent;
(v) The Indenture has been duly and validly authorized, executed
and delivered by the Parent and, assuming due execution and
19
delivery by the Company and the Trustee, constitutes a valid and
binding agreement of the Company and the Parent, enforceable in
accordance with its terms, subject to customary exceptions reasonably
acceptable to counsel for the Initial Purchasers;
(vi) The Registration Agreement (as defined in the Final
Memorandum) has been duly and validly authorized, executed and
delivered by the Parent and, assuming due execution and delivery by
the Company and the Initial Purchasers, is a valid and binding
agreement of the Company and the Parent, enforceable in accordance
with its terms, subject to customary exceptions reasonably acceptable
to counsel for the Initial Purchasers;
(vii) Each of the Domestic Guarantees (as defined in the
Indenture) has been duly and validly authorized, executed and
delivered by each such Domestic Guarantor (as defined in Indenture)
and, constitutes a valid and binding agreement of such Domestic
Guarantor, enforceable in accordance with its terms, subject to
customary exceptions reasonably acceptable to counsel for the Initial
Purchasers;
(viii) Assuming the due authorization, execution and delivery of
the Canadian Guarantee (as defined in the Indenture) by the Canadian
Subsidiary (as hereinafter defined), the Canadian Guarantee
constitutes a valid and binding agreement of the Canadian Subsidiary,
enforceable in accordance with its terms, subject to customary
exceptions reasonably acceptable to counsel for the Initial
Purchasers;
(ix) Assuming the Securities have been duly and validly
authorized and executed by the Company and, assuming due
authentication of the Securities by the Trustee, upon delivery to the
Initial Purchasers against payment therefor in accordance with the
terms hereof, assuming the Securities will have been validly issued
and delivered, the Securities will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture
and the statements set forth under the heading "Description of the
Notes" in the Final Memorandum insofar as such statements purport to
summarize certain provisions of the Securities and the Indenture,
provide a fair summary of such provisions;
20
(x) Neither the Parent nor, to the knowledge of such counsel, any
of the U.S. Subsidiaries (for the purposes of clause (A) of this
paragraph) and the U.S. Subsidiaries and the Canadian Subsidiary
(for purposes of clause (B) of this paragraph) is (A) in violation of
its respective certificate of incorporation or bylaws, or other
organizational documents, or (B) to the knowledge of such counsel, in
default in the performance of any material obligation, agreement or
condition contained in any bond, debenture, note or other evidence of
indebtedness, except as may be disclosed in the Final Memorandum or
where any such default or defaults in the aggregate would not be
reasonably likely, singularly or in the aggregate, to have a Parent
Material Adverse Effect or a Company Material Adverse Effect;
(xi) None of the offer, issuance, sale or delivery of the
Securities, the execution, delivery or performance by the Company or
the Parent of this Agreement, the Indenture and the Registration
Agreement, compliance by the Company or the Parent with the provisions
hereof and thereof, or consummation by the Company or the Parent of
the transactions contemplated hereby and thereby, conflicts or will
conflict with or constitutes or will constitute a breach of, or a
default under, the certificate of incorporation or bylaws, or other
organizational documents, of the Parent or any of the U.S.
Subsidiaries or, to such counsel's knowledge, any material agreement,
indenture, lease or other instrument to which the Parent or the
Subsidiaries is a party or by which it or any of their properties is
bound or, except as disclosed in the Final Memorandum, will, to such
counsel's knowledge, result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Parent or any
of the U.S. Subsidiaries under any such agreement, indenture, lease or
other instrument, or, to such counsel's knowledge, will any such
action result in any violation of any existing law or regulation
(assuming compliance with all applicable state securities or Blue Sky
and foreign laws), or any ruling, judgment, injunction, order or
decree of any court or governmental entity or instrumentality known to
such counsel and applicable to the Parent, the U.S. Subsidiaries or
any of their respective properties;
(xii) Except as set forth in the Final Memorandum, and assuming
the Securities are sold by the Initial Purchasers and as
21
contemplated in the Final Memorandum under the section "Plan of
Distribution and assuming the accuracy of the representations and
warranties contained herein, 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 Parent or any U.S. Subsidiary
for the valid issuance and sale of the Securities to the Initial
Purchasers as contemplated by this Agreement; except (a) as may be
required under state securities or "Blue Sky" laws or the laws of any
foreign jurisdiction in connection with the offer and sale of the
Notes (b) for any required filing required pursuant to Regulation D of
the Securities Act or (c) as would not reasonably be likely to
individually or in the aggregate have a Parent Material Adverse Effect
or Company Material Adverse Effect;
(xiii) To the knowledge of such counsel, (A) other than as
described or contemplated in the Final Memorandum, there are no legal
or governmental proceedings pending or threatened against the Parent
or any of the U.S. Subsidiaries, or to which the Parent or any of the
U.S. Subsidiaries, or any of their property, is subject, which are
required to be described in the Final Memorandum (or any amendment
or supplement thereto) and (B) there are no agreements, contracts,
indentures, leases or other instruments relating to the Parent or any
of the U.S. Subsidiaries, of a character, that are required to be
described in the Final Memorandum (or any amendment or supplement
thereto) that are not described as required;
(xiv) Assuming the accuracy of the representations and warranties
and compliance with the agreements contained herein, no registration
of the Securities under the Securities Act is required, and no
qualification of the Indenture under the Trust Indenture Act of 1939,
as amended, is necessary, for the offer and sale by the Initial
Purchasers of the Securities in the manner contemplated by this
Agreement; and
(xv) Each of the Company and the Parent is not and, upon sale of
the Securities to be issued and sold in accordance with the Purchase
Agreement and upon application of the net proceeds from such sale as
described in the Final Memorandum under the caption
22
"Use of Proceeds," will not be an "investment company" within the
meaning of the 1940 Act.
In addition, such counsel shall state that although 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 in the Final Memorandum, such counsel
has participated in the preparation of the Final Memorandum, including general
review and discussion of the contents thereof, and nothing has come to the
attention of such counsel that would lead them to believe that the Final
Memorandum, as of its date and as of the Closing Date, 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 the case of the
Final Memorandum, in the light of the circumstances under which they were made,
not misleading or that any amendment or supplement to the Final 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 in the Final Memorandum or necessary in order to make the statements
therein, in the case of the Final Memorandum, in the light of the circumstances
under which they were made, not misleading (it being understood that such
counsel need express no statement with respect to the financial statements,
financial schedules, pro forma financial statements and the notes thereto and
other financial and statistical data included in the Final Memorandum).
In rendering such opinion, such counsel may, as to factual matters,
rely, to the extent counsel deems proper, upon written certificates or
statements of officers of the Company, the Parent and public officials. The
foregoing opinion may be limited to the federal laws of the United States of
America and the Commonwealth of Pennsylvania and the General Corporation Law
of the State of Delaware.
All references to this Section 6(a) to the Final Memorandum shall be deemed
to include any amendment or supplement thereto at the Closing Date.
(b) You shall have received on the Closing Date an opinion of
Xxxxxxx, XxXxxxxx, Stirling, Scales, Canadian counsel for the Company and
the Parent, dated the Closing Date and addressed to you, as Representatives
of the several Initial Purchasers, to the effect that:
(i) The Company is an unlimited liability company duly organized
and validly existing under the laws of the jurisdiction of its
23
organization with full corporate power and authority to own, lease,
and operate its properties and to conduct its business as described in
the Final Memorandum (and any amendment or supplement thereto); and
all of the issued and outstanding shares of capital stock of the
Company are registered in the name of PLC Command I, L.P. as to 659
common shares and PLC Command II, L.P. as to 659 further common
shares, each of which are outstanding and fully paid and
nonassessable.
(ii) Archivex Limited (the "Canadian Subsidiary") is a
corporation duly organized and validly existing under the laws of
the jurisdiction of its organization with full corporate power
and authority to own, lease and operate its properties and to
conduct its business as described in the Final Memorandum;
(iii) The Company has the requisite corporate power and authority
to enter into this Agreement and to issue, sell and deliver the
Securities to the Initial Purchasers as provided herein, and this
Agreement has been duly authorized, executed and delivered by the
Company, and this Agreement and the obligations of Company
thereunder, is not contrary to and does not violate any applicable
laws of the province of Nova Scotia or the federal laws of Canada;
(iv) The Company has the requisite corporate power and authority
to enter into the Indenture and the Indenture has been duly and
validly authorized, executed and delivered by the Company, and the
Indenture and the obligations of parties thereunder, is not contrary
to and does not violate any applicable laws of the province of Nova
Scotia or the federal laws of Canada;
(v) The Company has the requisite corporate power and authority
to enter into the Registration Agreement (as defined in the Final
Memorandum) and the Registration Agreement has been duly and validly
authorized, executed and delivered by the Company, and Registration
Agreement and the obligations of the Company thereunder, is not
contrary to and does not violate any applicable laws of the province
of Nova Scotia or the federal laws of Canada;
24
(vi) The Canadian Subsidiary has the requisite corporate power
and authority to enter into the Canadian Guarantee and the Canadian
Guarantee has been duly and validly authorized, executed and delivered
by the Canadian Subsidiary, and the Canadian Guarantee and the
obligations of the Canadian Subsidiary thereunder, is not contrary to
and does not violate any applicable laws of the province of Nova
Scotia or the federal laws of Canada;
(vii) The Company has the requisite corporate power and
authority to issue the Securities and the Securities have been duly
and validly authorized and executed by the Company and, assuming due
authentication of the Securities by the Trustee, upon delivery to the
Initial Purchasers against payment therefor in accordance with the
terms hereof, will have been validly issued and delivered, and the
Notes and the obligations of the Company thereunder, is not contrary
to and does not violate any applicable laws of the province of Nova
Scotia or the federal laws of Canada;
(viii) Neither the Company nor, to the knowledge of such counsel,
the Canadian Subsidiary is in violation of its respective certificate
of incorporation or bylaws, or other organizational documents,
(ix) None of the offer, issuance, sale or delivery of the
Securities, the execution, delivery or performance by the Company of
this Agreement, the Indenture and the Registration Rights Agreement,
compliance by the Company with the provisions hereof and thereof, or
consummation by the Company of the transactions contemplated hereby
and thereby, conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the certificate of
incorporation, memorandum of association, articles of association or
bylaws, or other organizational documents, of the Company or the
Canadian Subsidiary, or, to such counsel's knowledge, will any such
action result in any violation of any existing law or regulation
(assuming compliance with all applicable provincial securities
laws), or any ruling, judgment, injunction, order or decree of any
court or governmental entity or instrumentality known to such
counsel and applicable to the Company, the Canadian Subsidiary or any
of their respective properties;
25
(x) 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,
in each case in the province of Nova Scotia, is required on the part
of the Company or the Canadian Subsidiary for the valid issuance and
sale of the Securities to the Initial Purchasers as contemplated by
this Agreement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the Province of
Nova Scotia or the federal laws of Canada applicable therein, to the extent they
deem proper and specified in such opinion, upon the opinion of other counsel of
good standing whom they believe to be reliable and who are satisfactory to
counsel for the Initial Purchasers and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Parent, the
Company and public officials.
All reference to this Section 6(b) to the Final Memorandum shall be
deemed to include any amendment or supplement thereto at the Closing Date.
(c) The Representatives shall have received from counsel for the
Initial Purchasers such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the Final Memorandum
(as amended or supplemented at the Closing Date) and other related matters
as the Representatives may reasonably require, and the Company and the
Parent shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(d) Each of the Company and the Parent shall have furnished to the
Representatives a certificate of the Company and the Parent, as the case
may be, signed on behalf of the Company or the Parent, as applicable, by
the Chairman of the Board or the President and the principal financial or
accounting officer of each of the Company and the Parent (or such other
officers as are reasonably acceptable to you), dated the Closing Date, to
the effect that the signers of such certificate have carefully examined the
Final Memorandum, any amendment or supplement to the Final Memorandum and
this Agreement and that:
26
(i) the representations and warranties of the Company and the
Parent in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as if made
on the Closing Date, and the Company and the Parent have complied in
all material respects with all the agreements and satisfied all the
conditions on their respective parts to be performed or satisfied
hereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial statements
included in the Final Memorandum, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Parent and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated by the Final
Memorandum (exclusive of any amendment or supplement thereto).
(e) At the Execution Time and at the Closing Date, Xxxxxx Xxxxxxxx LLP
shall have furnished to the Representatives a letter or letters, dated
respectively as of the Execution Time and as of the Closing Date, in form
and substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Securities Act and the
Exchange Act and the applicable rules and regulations thereunder and Rule
101 of the Code of Professional Conduct of the American Institute of
Certified Public Accountants (the "AICPA") and stating in effect, among
other things, that:
(i) in their opinion the audited consolidated financial
statements of the Parent included or incorporated in the Final
Memorandum and reported on by them comply in form in all material
respects with the applicable accounting requirements of the Act and
the related published rules and regulations thereunder;
(ii) on the basis of a reading of the minutes of the meetings of
the shareholders, directors and executive, finance and audit
committees of the Parent and its Subsidiaries; and inquiries of
certain officials of the Parent who have responsibility for financial
and accounting matters of the Parent and the Company and their
subsidiaries as to transactions and events subsequent to December 31,
1997, nothing came to their attention which caused them to believe
that with
27
respect to the period subsequent to December 31, 1997, there
were any changes, at a specified date not more than five business days
prior to the date of the letter, in the long-term debt of the Parent
and its subsidiaries or capital stock of the Parent or any decrease in
net current assets of the Parent in each case as compared with the
amounts shown on the December 31, 1997 consolidated balance sheet
included or incorporated in the Final Memorandum, or for the period
from January 1, 1998 to such specified date there were any decreases,
as compared with the corresponding period in the preceding year in net
revenues or income before income taxes or in total or per share
amounts of net income of the Parent and its subsidiaries, total
operating revenues, income from operations or net income, except in
all instances for changes or decreases set forth in such letters, in
which case the letter shall be accompanied by an explanation by the
Parent and the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives;
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Parent and it subsidiaries) set
forth in the Final Memorandum, including the information set forth
under the captions "Selected Historical and Pro Forma Consolidated
Statement of Operations, Other Data and Balance Sheet of Xxxxxx Xxxxx
Corp.", "Management's Discussion and Analysis of Financial Condition
and Results of Operations", "Executive Compensation of Xxxxxx Xxxxx",
"Stock Option Grants of Xxxxxx Xxxxx", and "Stock Option Exercises and
Holdings of Xxxxxx Xxxxx" in the Final Memorandum; and
(iv) They have read the unaudited pro forma financial statements
(the "pro forma financial statements") included or incorporated in
the Financial Memorandum; carried out certain specified procedures;
inquired of certain officials of the Parent and the Company who have
responsibility for financial and accounting matters regarding the
basis for determination of the pro forma adjustment and proved the
arithmetic accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial statements.
28
All references in this Section 6(e) to the Final Memorandum shall be
deemed to include any amendment or supplement thereto at the date of the
letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Final Memorandum, there shall not have
been (i) any change or decrease specified in the letter or letters referred
to in paragraph (e) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the business
or properties of the Parent, the Company and their subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to market the Securities as contemplated by the
Final Memorandum.
(g) Each of the Company and the Parent shall not have failed at or
prior to the Closing Date to have performed or complied in all material
respects with any of its agreements herein contained and required to be
performed or complied with by it hereunder at or prior to the Closing Date.
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Parent debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act) or any notice given of
any intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
(i) Prior to the Closing Date, the Company and the Parent shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(j) Prior to the Closing Date, the Company, the Parent and the Initial
Purchasers shall have entered into the Registration Agreement
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the
29
Representatives and counsel for the Initial Purchasers, this Agreement and all
obligations of the Initial Purchasers hereunder may be canceled at, or at any
time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company or the Parent in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the office of Counsel for the Initial Purchasers, at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, on the Closing Date.
7. Conditions to the Obligations of the Parent and the Company. The
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obligations of the Parent and the Company to sell the Securities hereby shall be
subject to the consummation by the Company of the Archivex Acquisition (as
defined in the Final Memorandum).
8. Reimbursement of Expenses. If the sale of the Securities provided
-------------------------
for herein is not consummated because any condition to the obligations of the
Initial Purchasers set forth in Section 6 (except for Section 6(c)) hereof is
not satisfied, because any condition to the obligations of the Company and the
Parent set forth in Section 7 hereof is not satisfied, because of any
termination pursuant to Section 11 hereof or because of any refusal, inability
or failure on the part of the Company or the Parent to perform any agreement
herein or comply with any provision hereof other than by reason of a default by
any of the Initial Purchasers in payment for the Securities on the Closing Date,
the Company and the Parent will reimburse the Initial Purchasers severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
9. Indemnification and Contribution. (a) The Company and the Parent
--------------------------------
agree to indemnify and hold harmless each Initial Purchaser, the directors,
officers, employees and agents of each Initial Purchaser and each person who
controls any Initial Purchaser within the meaning of either the Securities Act
or the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Preliminary Memorandum, the Final Memorandum, or in any amendment thereof or
supplement thereto, or any informa-
30
tion provided by the Company or the Parent to any holder or prospective
purchaser of Securities pursuant to Section 5(h), or arise out of or based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agree to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
-------- -------
Company and the Parent will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made in the Preliminary Memorandum or the Final Memorandum, or in any
amendment thereof or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company and the Parent by or on behalf of
any Initial Purchasers through the Representatives specifically for inclusion
therein; provided, further, that the foregoing indemnity with respect to the
-------- -------
Preliminary Memorandum shall not inure to the benefit of any Initial Purchaser
(or to the benefit of any person controlling such Initial Purchaser) from whom
the person asserting any such losses, claims, damages or liabilities purchased
Securities, if a copy of the Final Memorandum (as then amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Initial Purchaser to such person at or
prior to the written confirmation of the sale of the Securities to such person,
and if the Final Memorandum (as so amended or supplemented) would have cured
the defect giving rise to such losses, claims, damages or liabilities, unless
such failure to provide such Final Memorandum is the result of noncompliance by
the Company and the Parent with Sections 5(a) or (c) hereof. This indemnity
agreement will be in addition to any liability which the Company and the Parent
may otherwise have.
(b) Each Initial Purchaser severally agrees to indemnify and hold harmless
the Company and the Parent, their directors, their officers, and each person who
controls the Company or the Parent within the meaning of either the Securities
Act or the Exchange Act, to the same extent as the foregoing indemnity from the
Company and the Parent to each Initial Purchaser, but only with reference to
written information relating to such Initial Purchaser furnished to the
Company and the Parent by or on behalf of such Initial Purchaser through the
Representatives specifically for inclusion in the Preliminary Memorandum or the
Final Memorandum (or in any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability which any Initial Purchaser may
otherwise have. The Company and the Parent acknowledge that the statements set
forth in the last paragraph on the bottom
31
of the inside front cover and under the heading "Plan of Distribution" in the
Preliminary Memorandum and the Final Memorandum constitute the only information
furnished in writing by or on behalf of the Initial Purchasers for inclusion in
the Preliminary Memorandum or the Final Memorandum.
(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses or otherwise materially
prejudices the indemnifying party and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be reasonably
-------- -------
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of one such separate counsel (and one local counsel in any
jurisdiction) in connection with a proceeding or related proceedings if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent which consent will not be unreasonably
withheld, but if settled with
32
such consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment to the extent provided
herein. An indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgement with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason (other than failure to provide the requisite notice
required herein), the Company and the Parent on the one hand and the Initial
Purchasers on the other hand agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigation or defending the same) (collectively
"Losses") to which the Company and the Parent on the one hand and one or more of
the Initial Purchasers on the other hand may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Parent on the one hand and by the Initial Purchasers on the other hand from the
offering of the Securities. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the Parent on
the one hand and the Initial Purchasers on the other hand shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and the Parent on the one hand and of
the Initial Purchasers on the other hand in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company and the Parent shall be deemed
to be equal to the total net proceeds from the offering (before deducting
expenses), and benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions received by the Initial
Purchasers from the Company and the Parent in connection with the purchase of
the Securities hereunder. Relative fault shall be determined by reference,
among other things, to whether any alleged untrue statement or omission relates
to information provided by the Company and the Parent on the one hand or the
Initial Purchasers on the other hand. The Company, the Parent and the Initial
Purchasers agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
33
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 9,
each person who controls an Initial Purchaser within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee and
agent of an Initial Purchaser shall have the same rights to contribution as such
Initial Purchaser, and each person who controls the Company or the Parent within
the meaning of either the Securities Act or the Exchange Act and each officer
and director of the Company or the Parent shall have the same rights to
contribution as the Company and the Parent, subject in each case to the
applicable terms and conditions of this paragraph (d).
10. Default by an Initial Purchaser. If any one or more Initial
-------------------------------
Purchasers shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Initial Purchasers shall be obligated severally to
take up and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Initial Purchasers) the Securities which the defaulting Initial
Purchaser or Initial Purchasers agreed but failed to purchase; provided,
--------
however, that in the event that the aggregate principal amount of Securities
-------
which the defaulting Initial Purchaser or Initial Purchasers agreed but failed
to purchase shall exceed 10% of the aggregate principal amount of Securities set
forth in Schedule I hereto, the remaining Initial Purchasers shall have the
right to purchase all, but shall not be under any obligation to purchase any, of
the Securities, and if such non-defaulting Initial Purchasers do not purchase
all the Securities, this Agreement will terminate without liability to any non-
defaulting Initial Purchaser or the Company or the Parent. In the event of a
default by any Initial Purchaser as set forth in this Section 10, the Closing
Date shall be postponed for such period, not exceeding seven days, as the
Representatives and the Company shall determine in order that the required
changes in the Final Memorandum or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting
Initial Purchaser of its liability, if any, to the Company, the Parent or any
non-defaulting Initial Purchaser for damages occasioned by its default
hereunder.
11. Termination. This Agreement shall be subject to termination in
-----------
the absolute discretion of the Representatives, by notice given to the Company
prior
34
to delivery of and payment for the Securities, if prior to such time (i)
trading in any of the Parent's securities shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such exchange, (ii) a general commercial
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity, crisis or change the effect of which on financial markets is
such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Memorandum.
12. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company, the Parent or their officers and of the Initial Purchasers set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Initial Purchasers,
the Company, the Parent or any of the officers, directors or controlling persons
referred to in Section 9 hereof, and will survive delivery of and payment for
the Securities. The provisions of Sections 8 and 9 hereof shall survive the
termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telecopied and confirmed to them, care of Salomon Brothers Inc, at
Seven World Trade Center, New York, New York, 10048; or, if sent to the Company
and the Parent, will be mailed, delivered or telecopied and confirmed to it at
000 Xxxx Xxxxxx, Xxxx xx Xxxxxxx, XX 00000, attention: President.
14. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and,
except as expressly set forth in Section 5(h) hereof, no other person will have
any right or obligation hereunder. Neither the term "successor" nor the term
"successors and assigns" as used in this Agreement shall include a purchaser of
the Securities from an Initial Purchaser in its status as such a purchaser.
15. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of New York.
35
16. Business Day. For purposes of this Agreement, "business day"
------------
means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in The City of New York, New York are authorized or
obligated by law, executive order or regulation to close.
17. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which will be deemed to be an original, but all such
counterparts will together constitute one and the same instrument.
36
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement among the
Company, the Parent and the Initial Purchasers.
Very truly yours,
XXXXXX XXXXX COMMAND COMPANY
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: XX
XXXXXX XXXXX CORP.
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: VP
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
SALOMON BROTHERS INC
CIBC XXXXXXXXXXX CORP.
PAINEWEBBER INCORPORATED
By: Salomon Brothers Inc
By_______________________
Name:
Title:
For themselves and the other
Initial Purchasers named in
Schedule I to the foregoing Agreement
37
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement among the
Company, the Parent and the Initial Purchasers.
Very truly yours,
XXXXXX XXXXX COMMAND COMPANY
By
-----------------------------
Name:
Title:
XXXXXX XXXXX CORP.
By
-----------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
SALOMON BROTHERS INC
CIBC XXXXXXXXXXX CORP.
PAINEWEBBER INCORPORATED
By: Salomon Brothers Inc
By /s/ Xxx X. Xxxxx
--------------------------
Name: Xxx X. Xxxxx
Title: Director
For themselves and the other
Initial Purchasers named in
Schedule I to the foregoing Agreement
38
SCHEDULE I
Principal Amount
of Securities
Initial Purchasers to be Purchased
-------------------------- ----------------
Salomon Brothers Inc ............. $ 91,800,000
CIBC Xxxxxxxxxxx Corp. ........... $ 29,700,000
PaineWebber Incorporated.......... $ 13,500,000
------------
Total................... $135,000,000
39
EXHIBIT A
Selling Restrictions for Offers and
-----------------------------------
Sales outside the United States
-------------------------------
(1)(a) The Securities have not been and will not be registered under
the Securities Act and may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons except in accordance with
Regulation S under the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act. Each Initial Purchaser
represents and agrees that, except as otherwise permitted by Section 4(a)(i) of
the Agreement to which this is an exhibit, it has offered and sold the
Securities, and will offer and sell the Securities, (i) as part of their
distribution at any time and (ii) otherwise until 40 days after the later of the
commencement of the offering and the Closing Date, only in accordance with Rule
903 of Regulation S under the Securities Act. Accordingly, each Initial
Purchaser represents and agrees that neither it, nor any of its affiliates nor
any person acting on its or their behalf has engaged or will engage in any
directed selling efforts with respect to the Securities, and that it and they
have complied and will comply with the offering restrictions requirement of
Regulation S. Each Initial Purchaser agrees that, at or prior to the
confirmation of sale of Securities (other than a sale of Securities pursuant to
Section 4(a)(i) of the Agreement to which this is an exhibit), it shall have
sent to each distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases Securities from it during the restricted
period a confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities Act") and may not
be offered or sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time or
(ii) otherwise until 40 days after the later of the commencement of the
offering and April 7, 1998, except in either case in accordance with
Regulation S or Rule 144A under the Securities Act. Terms used above have
the meanings given to them by Regulation S."
(b) Each Initial Purchaser also represents and agrees that it has not
entered and will not enter into any contractual arrangement with any distributor
with
A-1
respect to the distribution of the Securities, except with its affiliates
or with the prior written consent of the Company and the Parent.
(c) Terms used in this Section have the meanings given to them by
Regulation S.
(2) Each Initial Purchaser represents and agrees that (i) it has not
offered or sold, and will not offer or sell, in the United Kingdom, by means of
any document, any Securities other than to persons whose ordinary business it is
to buy or sell shares or debentures, whether as principal or as agent (except in
circumstances which do not constitute an offer to the public within the meaning
of the Companies Act 1985 of Great Britain), (ii) it has complied and will
comply with all applicable provisions of the Financial Services Act 1986 of the
United Kingdom with respect to anything done by it in relation to the Securities
in, from or otherwise involving the United Kingdom, and (iii) it has only issued
or passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issue of the Securities to a person who is
of a kind described in Article 9(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1988 or is a person to whom the
document may otherwise lawfully be issued or passed on.
A-2
