EXHIBIT 1.1
Rayovac Corporation,
ROV Holding, Inc.
and
Rovcal Inc.
$ 350,000,000
8 1/2% Senior Subordinated Notes due 2013
PURCHASE AGREEMENT
dated September 26, 0000
Xxxx xx Xxxxxxx Securities LLC
Citigroup Global Markets Inc.
ABN AMRO Incorporated
Table of Contents
SECTION 1. Representations and Warranties.......................................................... 3
(a) No Registration Required......................................................................... 3
(b) No Integration of Offerings or General Solicitation.............................................. 3
(c) Eligibility for Resale under Rule 144A........................................................... 3
(d) The Offering Memorandum.......................................................................... 3
(e) Incorporated Documents........................................................................... 4
(f) The Purchase Agreement........................................................................... 4
(g) The Registration Rights Agreement................................................................ 4
(h) The DTC Agreement................................................................................ 4
(i) Authorization of the Securities and the Exchange Securities...................................... 4
(j) Authorization of the Indenture................................................................... 5
(k) Description of the Securities, Exchange Securities and the Indenture............................. 5
(l) No Material Adverse Change....................................................................... 5
(m) Independent Accountants.......................................................................... 6
(n) Preparation of the Financial Statements.......................................................... 6
(o) Incorporation and Good Standing of the Company and its Subsidiaries.............................. 6
(p) Capitalization and Other Capital Stock Matters................................................... 7
(q) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required....... 7
(r) No Material Actions or Proceedings............................................................... 8
(s) Intellectual Property Rights..................................................................... 8
(t) All Necessary Permits, etc....................................................................... 8
(u) Title to Properties.............................................................................. 8
(v) Tax Law Compliance............................................................................... 8
(w) Company Not an "Investment Company".............................................................. 9
(x) Insurance........................................................................................ 9
(y) No Price Stabilization or Manipulation........................................................... 9
(z) Solvency......................................................................................... 9
(aa) No Unlawful Contributions or Other Payments................................................... 9
(bb) Company's Accounting System................................................................... 9
(cc) Compliance with Environmental Laws............................................................ 10
(dd) Periodic Review of Costs of Environmental Compliance.......................................... 10
(ee) ERISA Compliance.............................................................................. 11
(ff) No Default in Senior Indebtedness............................................................. 11
(gg) Amended Credit Agreement...................................................................... 11
(hh) Regulation S.................................................................................. 11
SECTION 2. Purchase, Sale and Delivery of the Securities........................................... 12
(a) The Securities................................................................................... 12
(b) The Closing Date................................................................................. 12
(c) Delivery of the Securities....................................................................... 12
(d) Delivery of Offering Memorandum to the Initial Purchasers........................................ 12
(e) Initial Purchasers as Qualified Institutional Buyers............................................. 13
SECTION 3. Additional Covenants.................................................................... 13
(a) Initial Purchasers' Review of Proposed Amendments and Supplements................................ 13
(b) Amendments and Supplements to the Offering Memorandum and Other Securities Act Matters........... 13
(c) Copies of the Offering Memorandum................................................................ 14
(d) Blue Sky Compliance.............................................................................. 14
(e) Use of Proceeds.................................................................................. 14
(f) The Depositary................................................................................... 14
(g) Additional Issuer Information.................................................................... 14
(h) Agreement Not to Offer or Sell Additional Securities............................................. 14
(i) Future Reports to the Initial Purchasers......................................................... 14
(j) No Integration................................................................................... 15
i
(k) Legended Securities.............................................................................. 15
(l) PORTAL........................................................................................... 15
SECTION 4. Payment of Expenses..................................................................... 15
SECTION 5. Conditions of the Obligations of the Initial Purchasers................................. 16
(a) Accountants' Comfort Letter...................................................................... 16
(b) No Material Adverse Change or Ratings Agency Change.............................................. 16
(c) Opinion of Counsel for the Company and the Guarantors............................................ 16
(d) Opinion of Counsel for the Initial Purchasers.................................................... 16
(e) Officers' Certificate............................................................................ 17
(f) Bring-down Comfort Letter........................................................................ 17
(g) PORTAL Listing................................................................................... 17
(h) Registration Rights Agreement.................................................................... 17
(i) Concurrent Transactions.......................................................................... 17
(j) Notice of Redemption............................................................................. 17
(k) Notice of Termination............................................................................ 17
(l) Additional Documents............................................................................. 18
SECTION 6. Reimbursement of Initial Purchasers' Expenses........................................... 18
SECTION 7. Offer, Sale and Resale Procedures....................................................... 18
SECTION 8. Indemnification......................................................................... 19
(a) Indemnification of the Initial Purchasers........................................................ 19
(b) Indemnification of the Company, the Guarantors, their Directors and Officers..................... 20
(c) Notifications and Other Indemnification Procedures............................................... 21
(d) Settlements...................................................................................... 21
SECTION 9. Contribution............................................................................ 22
SECTION 10. Termination of this Agreement........................................................... 23
SECTION 11. Representations and Indemnities to Survive Delivery..................................... 23
SECTION 12. Notices................................................................................. 24
SECTION 13. Successors.............................................................................. 24
SECTION 14. Partial Unenforceability................................................................ 24
SECTION 15. Governing Law Provisions................................................................ 25
SECTION 16. Default of One or More of the Several Initial Purchasers................................ 25
SECTION 17. General Provisions...................................................................... 25
SCHEDULES, EXHIBITS AND ANNEX
SCHEDULE A - INITIAL PURCHASERS
SCHEDULE C - SUBSIDIARIES
EXHIBIT A-1 - FORM OF OPINION OF SKADDEN, ARPS, SLATE, XXXXXXX & XXXX LLP
EXHIBIT A-2 - FORM OF TAX OPINION OF SKADDEN, ARPS, SLATE,
XXXXXXX & XXXX LLP
EXHIBIT A-3 - FORM OF OPINION OF XXXXX X. XXXXX
ANNEX I - RESALE PROCEDURES
ii
Purchase Agreement
September 26, 0000
XXXX XX XXXXXXX SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
ABN AMRO Incorporated
As Initial Purchasers
c/o BANC OF AMERICA SECURITIES LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Introductory. Rayovac Corporation, a Wisconsin corporation
(the "Company"), proposes to issue and sell to the several Initial Purchasers
named in Schedule A (the "Initial Purchasers"), acting severally and not
jointly, the respective amounts set forth in such Schedule A of $350,000,000
aggregate principal amount of the Company's 8 1/2% Senior Subordinated Notes due
2013 (the "Notes"). Banc of America Securities LLC, Citigroup Global Markets
Inc. and ABN AMRO Incorporated have agreed to act as the several Initial
Purchasers in connection with the offering and sale of the Notes.
The Notes will be issued pursuant to an indenture, to be dated
as of September 30, 2003 (the "Indenture"), among the Company, the guarantors
named in the Indenture (including ROV Holding, Inc., a Delaware Corporation, and
Rovcal Inc., a California Corporation; each of ROV Holding, Inc. and Rovcal Inc.
a "Guarantor and together the "Guarantors") and U.S. Bank Trust National
Association, as trustee (the "Trustee"). Notes issued in book-entry form will be
issued in the name of Cede & Co., as nominee of The Depository Trust Company
(the "Depositary") pursuant to a DTC Agreement, to be dated as of the Closing
Date (as defined in Section 2) (the "DTC Agreement"), among the Company, the
Trustee and the Depositary.
The holders of the Notes will be entitled to the benefits of a
registration rights agreement, to be dated as of September 30, 2003 (the
"Registration Rights Agreement"), among the Company, the Guarantors and the
Initial Purchasers, pursuant to which each of the Company and the Guarantors
will agree to file, within 90 days of the Closing Date, a registration statement
with the Commission registering the Exchange Securities under the Securities
Act.
The payment of principal, of premium and Liquidated Damages
(as defined in the Indenture), if any, and interest on the Notes and the
Exchange Notes (as defined below) will be fully and unconditionally guaranteed
on a senior subordinated basis, jointly and severally by (i) the Guarantors and
(ii) any subsidiary of the Company formed or acquired after the Closing Date
that executes an additional guarantee in accordance with the terms of the
Indenture, and their respective successors and assigns, pursuant to their
guarantees (the "Guarantees"). The Notes and the Guarantees attached thereto are
herein collectively referred to as the "Securities"; and the Exchange Notes and
the Guarantees attached thereto are herein collectively referred to as the
"Exchange Securities".
The Notes are being issued as part of the financing of the
Company's acquisition (the "Acquisition") of all of the membership interests of
Remington Products Company, L.L.C., a Delaware limited liability company
("Remington"). In connection with the Acquisition, the Company will: (i) enter
into an agreement (the "Amended Credit Agreement") with lenders under its Third
Amended and Restricted Credit Agreement (the "Existing Credit Agreement") dated
as of October 1, 2002 to, among other things, increase the borrowing available
under the Existing Credit Agreement by $50,000,000 and (ii) make tender offers
(the "Tender Offers") to acquire Remington and Remington Capital Corp.'s
existing 11% Series B Senior Subordinated Notes due 2006 (the "Series B Notes")
and 11% Series D Senior Subordinated Notes due 2006 (the "Series D Notes"). The
Acquisition, the Amended Credit Agreement and the Tender Offers are hereinafter
collectively referred to as the "Concurrent Transactions." References in this
Agreement to subsidiaries of the Company shall be deemed to include Remington
and each of its subsidiaries.
The Company understands that the Initial Purchasers propose to
make an offering of the Securities on the terms and in the manner set forth
herein and in the Offering Memorandum (as defined below) and agrees that the
Initial Purchasers may resell, subject to the conditions set forth herein, all
or a portion of the Securities to purchasers (the "Subsequent Purchasers") at
any time after the date of this Agreement. The Securities are to be offered and
sold to or through the Initial Purchasers without being registered with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933 (as amended, the "Securities Act," which term, as used herein, includes
the rules and regulations of the Commission promulgated thereunder), in reliance
upon exemptions therefrom. The terms of the Securities and the Indenture will
require that investors that acquire Securities expressly agree that Securities
may only be resold or otherwise transferred, after the date hereof, if such
Securities are registered for sale under the Securities Act or if an exemption
from the registration requirements of the Securities Act is available (including
the exemptions afforded by Rule 144A under the Securities Act ("Rule 144A") or
Regulation S under the Securities Act ("Regulation S") thereunder).
The Company has prepared and delivered to each Initial
Purchaser copies of a Preliminary Offering Memorandum, dated September 12, 2003
(the "Preliminary Offering Memorandum"), and has prepared and will deliver to
each Initial Purchaser, copies of the Offering Memorandum, dated September 26,
2003 describing the terms of the Securities, each for use by such Initial
Purchaser in connection with its solicitation of offers to purchase the
Securities. As used herein, the "Offering Memorandum" shall mean, with respect
to any date or time referred to in this Agreement, the Company's Offering
Memorandum, dated September 26, 2003, including amendments or supplements
thereto and any exhibits thereto, and the Incorporated Documents (as defined by
Section 1 below) in the most recent form that has been prepared and delivered by
the Company to the Initial Purchasers in connection with their solicitation of
offers to purchase Securities. Further, any reference to the Preliminary
Offering Memorandum or the Offering Memorandum shall be deemed to refer to and
include any Additional Issuer Information (as defined in Section 3) furnished by
the Company prior to the completion of the distribution of the Securities.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Offering Memorandum (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which are incorporated by reference in the Offering Memorandum; and
all references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (as amended, the "Exchange Act," which term,
as used
2
herein, includes the rules and regulations of the Commission promulgated
thereunder) which is incorporated or deemed to be incorporated by reference in
the Offering Memorandum.
Each of the Company and the Guarantors hereby confirms its
agreements with the Initial Purchasers as follows:
SECTION 1. Representations and Warranties. Each of the Company and the
Guarantors, jointly and severally, hereby represents, warrants and covenants, to
each Initial Purchaser as follows:
(a) No Registration Required. Assuming the accuracy of the
representations and warranties of the Initial Purchasers set forth in
Section 2 hereof and compliance by the Initial Purchasers with the
procedures set forth in Section 7 hereof, it is not necessary in
connection with the offer, sale and delivery of the Securities to the
Initial Purchasers and to each Subsequent Purchaser in the manner
contemplated by this Agreement and the Offering Memorandum to register
the Securities under the Securities Act or, until such time as the
Exchange Securities are issued pursuant to an effective registration
statement, to qualify the Indenture under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act," which term, as used
herein, includes the rules and regulations of the Commission
promulgated thereunder).
(b) No Integration of Offerings or General Solicitation. The Company
and the Guarantors have not, directly or indirectly, solicited any
offer to buy or offered to sell, and will not, directly or indirectly,
solicit any offer to buy or offer to sell, in the United States or to
any United States citizen or resident, any security which is or would
be integrated with the sale of the Securities in a manner that would
require the Securities to be registered under the Securities Act. None
of the Company, the Guarantors, its respective affiliates (as such term
is defined in Rule 501 under the Securities Act (each, an "Affiliate"),
or any person acting on its or any of their behalf (other than the
Initial Purchasers, as to whom the Company and the Guarantors make no
representation or warranty) has engaged or will engage, in connection
with the offering of the Securities, in any form of general
solicitation or general advertising within the meaning of Rule 502
under the Securities Act. With respect to those Securities sold in
reliance upon Regulation S: (i) none of the Company, the Guarantors,
its Affiliates, or any person acting on its or their behalf (other than
the Initial Purchasers, as to whom the Company and the Guarantors make
no representation or warranty) has engaged or will engage in any
directed selling efforts within the meaning of Regulation S; and (ii)
each of the Company, the Guarantors, and its Affiliates and any person
acting on its or behalf (other than the Initial Purchasers, as to whom
the Company and the Guarantors makes no representation or warranty) has
complied and will comply with the offering restrictions set forth in
Regulation S.
(c) Eligibility for Resale under Rule 144A. The Securities are eligible
for resale pursuant to Rule 144A and will not be, at the Closing Date,
of the same class as securities listed on a national securities
exchange registered under Section 6 of the Exchange Act or quoted in a
U.S. automated interdealer quotation system.
(d) The Offering Memorandum. The Offering Memorandum as of the date
hereof does not, and at the Closing Date will not, include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
this representation, warranty and agreement shall not apply to any
statements in or omissions from the Offering Memorandum made in
reliance upon and in conformity with information furnished to the
Company in writing by any Initial Purchaser through Banc of America
Securities LLC expressly for use in the Offering Memorandum. Each of
the
3
Preliminary Offering Memorandum and the Offering Memorandum, as of its
date, contains all the information specified in, and meets the
requirements of, Rule 144A. Neither the Company nor any Guarantor has
distributed or will distribute, prior to the later of the Closing Date
and the completion of the Initial Purchasers' distribution of the
Securities, any offering material in connection with the offering and
sale of the Securities other than the Preliminary Offering Memorandum
or the Offering Memorandum.
(e) Incorporated Documents. The Offering Memorandum as delivered from
time to time shall incorporate by reference the most recent Annual
Report of each of the Company and Remington on Form 10-K filed with the
Commission and each Quarterly Report of each of the Company and
Remington on Form 10-Q, and each Current Report of each of the Company
and Remington on Form 8-K, filed with the Commission since the filing
of the end of the fiscal year to which such Annual Report relates,
except Remington's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2003 and the Company's Current Report on Form 8-K/A filed as
of December 16, 2002. The documents incorporated or deemed to be
incorporated by reference in the Offering Memorandum at the time they
were or hereafter are filed with the Commission (collectively, the
"Incorporated Documents") complied, or by subsequent amendment
complied, and will comply in all material respects with the
requirements of the Exchange Act.
(f) The Purchase Agreement. This Agreement has been duly authorized,
executed and delivered by each of the Company and the Guarantors.
(g) The Registration Rights Agreement. At the Closing Date, the
Registration Rights Agreement will be duly authorized, executed and
delivered by, and will be a valid and binding agreement of, each of the
Company and the Guarantors, enforceable in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights and remedies of creditors or by general
equitable principles (regardless of whether enforceability is
considered in a proceeding at law or in equity) and except as rights to
indemnification under the Registration Rights Agreement may be limited
by applicable law. Pursuant to the Registration Rights Agreement, the
Company will agree to file with the Commission, under the circumstances
set forth therein, (i) a registration statement under the Securities
Act relating to another series of debt securities of the Company with
terms substantially identical to the Notes (the "Exchange Notes") to be
offered in exchange for the Notes (the "Exchange Offer"); and (ii) to
the extent required by the Registration Rights Agreement, a shelf
registration statement pursuant to Rule 415 of the Securities Act
relating to the resale by certain holders of the Notes, and in each
case, to use its commercially reasonable efforts to cause such
registration statements to be declared effective.
(h) The DTC Agreement. On the Closing Date, the DTC Agreement will be
duly authorized, executed and delivered by, and will be a valid and
binding agreement of, the Company, enforceable in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights and remedies of creditors or by general
equitable principles (regardless of whether enforceability is
considered in a proceeding at law or in equity).
(i) Authorization of the Securities and the Exchange Securities. The
Notes to be purchased by the Initial Purchasers from the Company are in
the form contemplated by the Indenture, have been duly authorized for
issuance and sale pursuant to this Agreement and the Indenture and, at
the Closing Date, will have been duly executed by the
4
Company and, when authenticated in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor,
will constitute valid and binding agreements of the Company,
enforceable in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights
and remedies of creditors or by general equitable principles
(regardless of whether enforceability is considered in a proceeding at
law or in equity) and will be entitled to the benefits of the
Indenture. The Exchange Notes have been duly and validly authorized for
issuance by the Company, and when issued and authenticated in
accordance with the terms of the Indenture, the Registration Rights
Agreement and the Exchange Offer, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium, or
similar laws relating to or affecting enforcement of the rights and
remedies of creditors or by general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in
equity) and will be entitled to the benefits of the Indenture. The
Guarantees of the Notes and the Exchange Notes are in the respective
forms contemplated by the Indenture, have been duly authorized for
issuance and sale pursuant to this Agreement and the Indenture and, at
the Closing Date, will have been duly executed by each of the
Guarantors and, when the Notes have been authenticated in the manner
provided for in the Indenture and delivered against payment of the
purchase price therefor, will constitute valid and binding agreements
of the Guarantors, enforceable in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles (regardless of whether enforceability is considered in a
proceeding at law or in equity) and will be entitled to the benefits of
the Indenture.
(j) Authorization of the Indenture. The Indenture has been duly
authorized by each of the Company and the Guarantors, and at the
Closing Date will have been duly executed and delivered by each of the
Company and the Guarantors, and when executed and delivered by the
Trustee, will constitute a valid and binding agreement of each of the
Company and the Guarantors, enforceable against each of the Company and
the Guarantors in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights
and remedies of creditors or by general equitable principles
(regardless of whether enforceability is considered in a proceeding at
law or in equity).
(k) Description of the Securities, Exchange Securities and the
Indenture. On the Closing Date, the Securities and the Indenture will
conform in all material respects to the respective statements relating
thereto contained in the Offering Memorandum.
(l) No Material Adverse Change. Except as otherwise disclosed in the
Offering Memorandum, subsequent to the respective dates as of which
information is given in the Offering Memorandum: (i) there has been no
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or
in the earnings, business or operations, whether or not arising from
transactions in the ordinary course of business, of the Company and its
subsidiaries, considered as one entity (any such change is called a
"Material Adverse Change"); (ii) the Company and its subsidiaries,
considered as one entity, have not incurred any material liability or
obligation, indirect, direct or contingent, not in the ordinary course
of business nor entered into any material transaction or agreement not
in the ordinary course of business; and (iii) there has been no
dividend or distribution of any kind declared, paid
5
or made by the Company or, except for dividends paid to the Company or
other subsidiaries, any of its subsidiaries on any class of capital
stock or repurchase or redemption by the Company or any of its
subsidiaries of any class of capital stock.
(m) Independent Accountants. KPMG LLP and Deloitte & Touche LLP, who
have each expressed their opinion with respect to the financial
statements (which term as used in this Agreement includes the related
notes thereto) and supporting schedules filed with the Commission
included in the Offering Memorandum, are independent public or
certified public accountants within the meaning of Regulation S-X under
the Securities Act.
(n) Preparation of the Financial Statements. The financial statements,
together with the related schedules and notes of (i) the Company and
its subsidiaries, (ii) the Consumer Battery Group of Varta AG and (iii)
Remington and its subsidiaries, in each case included or incorporated
by reference in the Offering Memorandum present fairly the consolidated
financial position of (i) the Company and its subsidiaries (ii) the
Consumer Battery Group of Varta AG and (iii) Remington and its
subsidiaries, respectively, as of and at the dates indicated and the
results of their operations and cash flows for the periods specified.
The financial statements of (i) the Company and its subsidiaries and
(ii) Remington and its subsidiaries have been prepared in conformity
with generally accepted accounting principles as applied in the United
States, applied on a consistent basis throughout the periods involved,
except as may be expressly stated in the related notes thereto. The
financial statements of the Consumer Battery Group of Varta AG have
been prepared in conformity with generally accepted accounting
principles as applied in Germany, applied on a consistent basis
throughout the periods involved, except as may be expressly stated in
the related notes thereto, and reconciled to generally accepted
accounting principles applied in the United States in accordance with
Item 17 of Form 20-F under the Exchange Act. The financial data set
forth in the Offering Memorandum under the captions "Summary--Summary
Financial Data--Rayovac," "Summary--Summary Financial Data--Remington,"
"Selected Historical Financial Data--Rayovac" and "Selected Historical
Financial Data--Remington" fairly present the information set forth
therein on a basis consistent with that of the audited financial
statements contained in the Offering Memorandum. The pro forma
condensed financial statements of the Company and its subsidiaries and
the related notes thereto included under the caption "Summary--Summary
Unaudited Pro Forma Condensed Consolidated Financial Data," "Unaudited
Pro Forma Condensed Consolidated Financial Data" and elsewhere in the
Offering Memorandum present fairly the information contained therein,
have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and have been
properly presented on the bases described therein, and the assumptions
used in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(o) Incorporation and Good Standing of the Company and its
Subsidiaries. Each of the Company and its subsidiaries has been duly
incorporated or otherwise formed and is validly existing as a
corporation, limited liability company, partnership or other legal
entity in good standing under the laws of the jurisdiction of its
incorporation or formation and has power and authority to own, lease
and operate its properties and to conduct its business as described in
the Offering Memorandum. Each of the Company and each subsidiary is
duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except for such jurisdictions where the failure to so qualify or to be
in good standing would not, individually or in the aggregate,
6
result in a Material Adverse Change. All of the issued and outstanding
capital stock of each subsidiary has been duly authorized and validly
issued, is fully paid and nonassessable and (except for any directors'
qualifying shares and except for Varta AG) is owned or will be owned as
of the Closing Date by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim. The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than the
subsidiaries listed in Schedule B hereto.
(p) Capitalization and Other Capital Stock Matters. All of the
outstanding shares of the Company's Common Stock have been duly
authorized and validly issued, are fully paid and nonassessable and
have been issued in compliance with federal and state securities laws.
None of the outstanding shares of the Company's Common Stock were
issued in violation of any preemptive rights, rights of first refusal
or other similar rights to subscribe for or purchase securities of the
Company. There are no authorized or outstanding options, warrants,
preemptive rights, rights of first refusal or other rights to purchase,
or equity or debt securities convertible into or exchangeable or
exercisable for, any capital stock of the Company or any of its
subsidiaries other than those accurately described in the Offering
Memorandum.
(q) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor any of
its subsidiaries (i) is in violation of its charter, by-laws or similar
organizational documents or (ii) is in default (or, with the giving of
notice or lapse of time, would be in default) ("Default") under any
indenture, mortgage, loan or credit agreement, note, contract,
franchise, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any of its
subsidiaries is subject (each, an "Existing Instrument"), except for
such Defaults as would not, individually or in the aggregate, result in
a Material Adverse Change. The Company's and the Guarantors' execution,
delivery and performance of this Agreement, the Registration Rights
Agreement, the DTC Agreement and the Indenture, and the issuance and
delivery of the Securities or the Exchange Securities, and the
consummation of the transactions contemplated hereby and thereby (i)
will not result in any violation of the provisions of the charter or
by-laws of the Company or any subsidiary, (ii) will not conflict with
or constitute a breach of, or Default or a Debt Repayment Triggering
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, or require the consent
of any other party to, any Existing Instrument, except for such
conflicts, breaches, Defaults, liens, charges or encumbrances as would
not, individually or in the aggregate, result in a Material Adverse
Change and (iii) will not result in any violation of any law,
administrative regulation or administrative or court decree applicable
to the Company or any subsidiary. No consent, approval, authorization
or other order of, or registration or filing with, any court or other
governmental or regulatory authority or agency, is required for the
Company's and the Guarantors' execution, delivery and performance of
this Agreement, the Registration Rights Agreement, the DTC Agreement,
the Indenture, or the issuance and delivery of the Securities or the
Exchange Securities, or consummation of the transactions contemplated
hereby and thereby, except such as have been obtained or made by the
Company or the Guarantors and are in full force and effect under the
Securities Act, applicable state securities or blue sky laws and except
such as may be required by federal and state securities laws with
respect to the Company's and the Guarantors' obligations under the
Registration Rights Agreement. As used herein, a "Debt Repayment
Triggering Event" means any event or condition which gives, or with the
giving of notice
7
or lapse of time would give, the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any of its
subsidiaries.
(r) No Material Actions or Proceedings. Except as set forth or
contemplated in the Offering Memorandum, there are no legal or
governmental actions, suits or proceedings pending or, to each of the
Company's and the Guarantors' knowledge: (i) threatened against or
affecting the Company or any of its subsidiaries; or (ii) which have as
the subject thereof any property owned or leased by, the Company or any
of its subsidiaries, where in any such case there is a reasonable
possibility that such action, suit or proceeding will be determined
adversely to the Company or such subsidiary and any such action, suit
or proceeding, if so determined adversely, would reasonably be expected
to result in a Material Adverse Change or adversely affect the
consummation of the transactions contemplated by this Agreement. No
material labor dispute with the employees of the Company or any of its
subsidiaries or to each of the Company's and the Guarantor's knowledge,
with the employees of any principal supplier of the Company or any of
its subsidiaries, exists or, to each of the Company's and the
Guarantors' knowledge, is threatened or imminent.
(s) Intellectual Property Rights. Except as otherwise disclosed in the
Offering Memorandum, the Company and its subsidiaries own or possess
sufficient trademarks, trade names, patent rights, copyrights,
licenses, approvals, trade secrets and other similar rights
(collectively, "Intellectual Property Rights") reasonably necessary to
conduct their businesses as now conducted; and the expected expiration
of any of such Intellectual Property Rights is not reasonably expected
to result in a Material Adverse Change. Neither the Company nor any of
its subsidiaries has received any notice of infringement or conflict
with asserted Intellectual Property Rights of others, which
infringement or conflict, if the subject of an unfavorable decision,
would result in a Material Adverse Change.
(t) All Necessary Permits, etc. The Company and each subsidiary possess
such valid and current certificates, authorizations or permits issued
by the appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct their respective businesses, and neither
the Company nor any subsidiary has received any written notice of
proceedings relating to the revocation or modification of, or
non-compliance with, any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Change.
(u) Title to Properties. The Company and each of its subsidiaries has
good and marketable title to all the properties and assets reflected as
owned in the financial statements referred to in paragraph (m) above,
in each case free and clear of any security interests, mortgages,
liens, encumbrances, equities, claims and other defects, except such as
do not materially and adversely affect the value of such property and
do not materially interfere with the use made or proposed to be made of
such property by the Company or such subsidiary. The real property,
improvements, equipment and personal property held under lease by the
Company or any subsidiary are held under valid and enforceable leases,
with such exceptions as are not material and do not materially
interfere with the use made or proposed to be made of such real
property, improvements, equipment or personal property by the Company
or such subsidiary.
(v) Tax Law Compliance. The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns
or have properly requested
8
extensions thereof, and have paid all taxes required to be paid by any
of them and, if due and payable, any related or similar assessment,
fine or penalty levied against any of them except as may be being
contested in good faith and by appropriate proceedings, except where
the failure to file such tax returns or pay such taxes, assessments,
fines and penalties individually or in the aggregate would not
reasonably be expected to result in a Material Adverse Change. The
Company has made adequate charges, accruals and reserves in the
applicable financial statements referred to in paragraph (n) above in
respect of all federal, state and foreign income and franchise taxes
for all periods as to which the tax liability of the Company or any of
its subsidiaries has not been finally determined.
(w) Company Not an "Investment Company". The Company has been advised
of the rules and requirements under the Investment Company Act of 1940,
as amended (the "Investment Company Act"). The Company is not, and
after receipt of payment for the Securities and consummation of the
Concurrent Transactions will not be, an "investment company" within the
meaning of Investment Company Act.
(x) Insurance. Each of the Company and its subsidiaries are insured by
recognized, financially sound institutions with policies in such
amounts and with such deductibles and covering such risks as are
generally deemed reasonably adequate for their businesses. The Company
has no reason to believe that it or any subsidiary will not be able (i)
to renew its existing insurance coverage as and when such policies
expire or (ii) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct its business as now
conducted and at a cost that would not result in a Material Adverse
Change. Neither of the Company nor any subsidiary has been denied any
insurance coverage which it has sought or for which it has applied.
(y) No Price Stabilization or Manipulation. Each of the Company and the
Guarantors has not taken and will not take, directly or indirectly, any
action designed to or that might be reasonably expected to cause or
result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(z) Solvency. Each of the Company and the Guarantors is, and
immediately after the Closing Date will be, Solvent. As used herein,
the term "Solvent" means, with respect to each of the Company and the
Guarantors on a particular date, that on such date: (i) the fair market
value of its assets is greater than the total amount of its liabilities
(including contingent liabilities); (ii) the present fair salable value
of its assets is greater than the amount that will be required to pay
the probable liabilities on its debts as they become absolute and
matured; (iii) it is able to realize upon its assets and pay its debts
and other liabilities, including contingent obligations, as they
mature; and (iv) it does not have unreasonably small capital.
(bb) No Unlawful Contributions or Other Payments. Neither the Company
nor any of its subsidiaries nor, to the best of the Company's or any
Guarantor's knowledge, any employee, director or agent of the Company
or any subsidiary, has made any contribution or other payment to any
official of, or candidate for, any federal, state or foreign office in
violation of any law or of the character necessary to be disclosed in
the Offering Memorandum in order to make the statements therein not
misleading.
(cc) Company's Accounting System. Each of the Company and, to the
Company's knowledge, Remington maintains a system of 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
9
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles as applied in the United
States 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.
(dd) Compliance with Environmental Laws. Except as disclosed in the
Offering Memorandum or as would not, individually or in the aggregate,
result in a Material Adverse Change: (i) neither the Company nor any of
its subsidiaries is in violation of any federal, state, local or
foreign law or regulation relating to pollution or protection of human
health or the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or
wildlife, including without limitation, laws and regulations relating
to emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum and petroleum products (collectively, "Materials
of Environmental Concern"), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Materials of Environmental Concern (collectively,
"Environmental Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company or its
subsidiaries under applicable Environmental Laws, or noncompliance with
the terms and conditions thereof, nor has the Company or any of its
subsidiaries received any written communication, whether from a
governmental authority, citizens group, employee or otherwise, that
alleges that the Company or any of its subsidiaries is in violation of
any Environmental Law; (ii) there is no claim, action or cause of
action filed with a court or governmental authority, no investigation
with respect to which the Company or any of its subsidiaries has
received written notice, and no written notice by any person or entity
alleging potential liability for investigatory costs, cleanup costs,
governmental responses costs, natural resources damages, property
damages, personal injuries, attorneys' fees or penalties arising out
of, based on or resulting from the presence, or release into the
environment, of any Material of Environmental Concern at any location
owned, leased or operated by the Company or any of its subsidiaries,
now or in the past (collectively, "Environmental Claims"), pending or,
to each of the Company's and the Guarantors' knowledge, threatened
against the Company or any of its subsidiaries or any person or entity
whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by
operation of law; and (iii) to each of the Company's and the
Guarantors' knowledge, there are no past or present actions,
activities, circumstances, conditions, events or incidents, including,
without limitation, the release, emission, discharge, presence or
disposal of any Material of Environmental Concern, that would
reasonably be expected to result in a violation of any Environmental
Law or form the basis of a potential Environmental Claim against the
Company or any of its subsidiaries or against any person or entity
whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by
operation of law.
(ee) Periodic Review of Costs of Environmental Compliance. In the
ordinary course of its business, the Company conducts a periodic review
of the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of which
it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval,
10
any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review and the
amount of its established reserves, the Company has reasonably
concluded that such associated costs and liabilities would not,
individually or in the aggregate, result in a Material Adverse Change.
(ff) ERISA Compliance. The Company and its subsidiaries and any
"employee benefit plan" (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (collectively, "ERISA"))
established or maintained by the Company, its subsidiaries or their
"ERISA Affiliates" (as defined below) are in compliance in all material
respects with ERISA. "ERISA Affiliate" means, with respect to the
Company or a subsidiary, any member of any group of organizations
described in Sections 414, or of the Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations thereunder
(the "Code") of which the Company or such subsidiary is a member. No
"reportable event" (as defined under ERISA) has occurred or is
reasonably expected to occur with respect to any "employee benefit
plan" established or maintained by the Company, its subsidiaries or any
of their ERISA Affiliates. No "employee benefit plan" established or
maintained by the Company, its subsidiaries or any of their ERISA
Affiliates, if such "employee benefit plan" were terminated, would have
any "amount of unfunded benefit liabilities" (as defined under ERISA),
except for the Rayovac Madison Hourly Retirement Plan No. 23, the
Rayovac Madison Hourly Retirement Plan No. 24, the Rayovac Portage
Hourly Retirement Plan No. 28 and the Rayovac Corporation Xxxxxxxxx
Hourly Retirement Plan No. 34., which together have aggregate unfunded
benefit liabilities not in excess of $2,500,000. Neither the Company,
its subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any material liability under (i) Title IV
of ERISA with respect to termination of, or withdrawal from, any
"employee benefit plan"; or (ii) Sections 412, 4971, 4975 or 4980B of
the Code. Each "employee benefit plan" established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates that is
intended to be qualified under Section 401 of the Code has received a
determination letter from the Internal Revenue Service stating that it
is so qualified, and nothing has occurred, whether by action or failure
to act, which would cause the loss of such qualification.
(gg) No Default in Senior Indebtedness. No event of default exists
under any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument constituting Senior Indebtedness (as
defined in the Indenture).
(hh) Amended Credit Agreement. The Amended Credit Agreement has been
duly and validly authorized by the Company and Varta Geratebatterie
GmbH ("Varta"), and when duly executed and delivered by each of the
Company and Varta, will be the valid and legally binding obligation of
each of the Company and Varta, enforceable in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights and remedies of creditors or by general
equitable principles (regardless of whether enforceability is
considered in a proceeding at law or in equity).
(ii) Regulation S. The Company and its Affiliates, the Guarantors and
their respective affiliates and all persons acting on their behalf
(other than the Initial Purchasers, as to whom the Company and the
Guarantors make no representation) have complied with and will comply
with the offering restrictions requirements of Regulation S in
connection with the offering of the Securities outside the United
States and, in connection therewith, the Offering Memorandum will
contain the disclosure required by Rule 902 under the Securities Act.
The Securities sold in reliance on Regulation S will be represented
upon
11
issuance by a temporary global security that may not be exchanged for
definitive securities until the expiration of the 40-day restricted
period referred to in Rule 903 of the Securities Act and only upon
certification of beneficial ownership of such Securities by non-U.S.
persons or U.S. persons who purchased such Securities in transactions
that were exempt from the registration requirements of the Securities
Act.
Any certificate signed by an officer of the Company or any
Guarantor and delivered to the Initial Purchasers or to counsel for the
Initial Purchasers shall be deemed to be a representation and warranty
by each of the Company or the Guarantors to each Initial Purchaser as
to the matters set forth therein.
SECTION 2. Purchase, Sale and Delivery of the Securities.
(a) The Securities. The Company agrees to issue and sell to the several
Initial Purchasers, severally and not jointly, all of the Securities
upon the terms herein set forth. On the basis of the representations,
warranties and agreements herein contained, and upon the terms but
subject to the conditions herein set forth, the Initial Purchasers
agree, severally and not jointly, to purchase from the Company the
aggregate principal amount of Securities set forth opposite their names
on Schedule A, at a purchase price of 97.5% of the principal amount
thereof payable on the Closing Date. The Company's obligation set forth
in the first sentence of this paragraph is subject to the completion of
the Acquisition pursuant to the Purchase Agreement by and among Rayovac
Corporation, Remington Products Company, L.L.C., Vestar Equity
Partners, L.P., Investors/RP, L.L.C. and RPI Corp., dated as of August
21, 2003.
(b) The Closing Date. Delivery of certificates for the Securities in
definitive form to be purchased by the Initial Purchasers and payment
therefor shall be made at the offices of Shearman & Sterling LLP, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000 (or such other place
as may be agreed to by the Company and the Initial Purchasers) at 9:00
a.m. New York City time, on September 30, 2003 or such other time and
date as the Initial Purchasers shall designate by notice to the Company
(the time and date of such closing are called the "Closing Date"). The
Company hereby acknowledges that circumstances under which the Initial
Purchasers may provide notice to postpone the Closing Date as
originally scheduled include, but are in no way limited to, any
determination by the Company or the Initial Purchasers to recirculate
to investors copies of an amended or supplemented Offering Memorandum
or a delay as contemplated by the provisions of Section 16 hereof.
(c) Delivery of the Securities. The Company shall deliver, or cause to
be delivered, to Banc of America Securities LLC for the accounts of the
several Initial Purchasers certificates for the Securities at the
Closing Date against the irrevocable release of a wire transfer of
immediately available funds for the amount of the purchase price
therefor. The certificates for the Securities shall be in such
denominations and registered in the name of Cede & Co., as nominee of
the Depository, pursuant to the DTC Agreement, and shall be made
available for inspection on the business day preceding the Closing Date
at a location in New York City, as the Initial Purchasers may
designate. Time shall be of the essence, and delivery at the time and
place specified in this Agreement is a further condition to the
obligations of the Initial Purchasers.
(d) Delivery of Offering Memorandum to the Initial Purchasers. Not
later than 12:00 p.m. on the second business day following the date of
this Agreement, the Company shall deliver or cause to be delivered
copies of the Offering Memorandum in such quantities and at such places
as the Initial Purchasers shall reasonably request.
12
(e) Initial Purchasers as Qualified Institutional Buyers. Each Initial
Purchaser severally and not jointly represents and warrants to, and
agrees with, the Company that it is a "qualified institutional buyer"
within the meaning of Rule 144A (a "Qualified Institutional Buyer") and
an "accredited investor" within the meaning of Rule 501 under the
Securities Act (an "Accredited Investor").
SECTION 3. Additional Covenants. Each of the Company and the Guarantors,
jointly and severally, further covenants and agrees with each Initial Purchaser
as follows:
(a) Initial Purchasers' Review of Proposed Amendments and Supplements.
Prior to amending or supplementing the Offering Memorandum (including
any amendment or supplement through incorporation by reference of any
report filed under the Exchange Act), the Company shall furnish to the
Initial Purchasers for review a copy of each such proposed amendment or
supplement, and the Company shall not use any such proposed amendment
or supplement to which the Initial Purchasers reasonably object.
(b) Amendments and Supplements to the Offering Memorandum and Other
Securities Act Matters. If, prior to the completion of the placement of
the Securities by the Initial Purchasers with the Subsequent
Purchasers, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Offering Memorandum in
order to make the statements therein, in the light of the circumstances
when the Offering Memorandum is delivered to a purchaser, not
misleading, or if in the opinion of the Initial Purchasers or counsel
for the Initial Purchasers it is otherwise necessary to amend or
supplement the Offering Memorandum to comply with law, the Company
agrees to promptly prepare (subject to Section 3 hereof), and furnish
at its own expense to the Initial Purchasers, amendments or supplements
to the Offering Memorandum so that the statements in the Offering
Memorandum as so amended or supplemented will not, in the light of the
circumstances when the Offering Memorandum is delivered to a purchaser,
be misleading or so that the Offering Memorandum, as amended or
supplemented, will comply with law.
Following the consummation of the Exchange Offer or the
effectiveness of an applicable shelf registration statement and for so
long as the Securities are outstanding if, in the reasonable judgment
of the Initial Purchasers, the Initial Purchasers or any of their
affiliates (as such term is defined in the rules and regulations under
the Securities Act) are required to deliver a prospectus in connection
with sales of, or market-making activities with respect to, such
securities, to periodically amend the applicable registration statement
so that the information contained therein complies with the
requirements of Section 10 of the Securities Act, to amend the
applicable registration statement or supplement the related prospectus
or the documents incorporated therein when necessary to reflect any
material changes in the information provided therein so that the
registration statement and the prospectus will not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances existing as of the date the prospectus is so delivered,
not misleading and to provide the Initial Purchasers with copies of
each amendment or supplement filed and such other documents as the
Initial Purchasers may reasonably request.
Each of the Company and the Guarantors hereby expressly
acknowledges that the indemnification and contribution provisions of
Sections 8 and 9 hereof are specifically applicable and relate to each
offering memorandum, registration statement, prospectus, amendment or
supplement referred to in this Section 3.
13
(c) Copies of the Offering Memorandum. The Company agrees to furnish
the Initial Purchasers, without charge, as many copies of the Offering
Memorandum and any amendments and supplements thereto as they shall
have reasonably requested.
(d) Blue Sky Compliance. Each of the Company and the Guarantors shall
cooperate with the Initial Purchasers and counsel for the Initial
Purchasers to qualify or register the Securities for sale under (or
obtain exemptions from the application of) the Blue Sky or state
securities laws of those jurisdictions designated by the Initial
Purchasers, shall comply with such laws and shall continue such
qualifications, registrations and exemptions in effect so long as
required for the distribution of the Securities. The Company and the
Guarantors shall not be required to qualify as a foreign corporation or
to take any action that would subject it to general service of process
in any such jurisdiction where it is not presently qualified or where
it would be subject to taxation as a foreign corporation. The Company
will advise the Initial Purchasers promptly of the suspension of the
qualification or registration of (or any such exemption relating to)
the Securities for offering, sale or trading in any jurisdiction or any
initiation or threat of any proceeding for any such purpose, and in the
event of the issuance of any order suspending such qualification,
registration or exemption, the Company shall use its commercially
reasonable efforts to obtain the withdrawal thereof at the earliest
possible moment.
(e) Use of Proceeds. The Company shall apply the net proceeds from the
sale of the Securities sold by it in the manner described under the
caption "Use of Proceeds" in the Offering Memorandum.
(f) The Depositary. The Company will cooperate with the Initial
Purchasers and use its commercially reasonable efforts to permit the
Securities to be eligible for clearance and settlement through the
facilities of the Depositary.
(g) Additional Issuer Information. Prior to the completion of the
placement of the Securities by the Initial Purchasers with the
Subsequent Purchasers, the Company shall file, on a timely basis, with
the Commission and the New York Stock Exchange all reports and
documents required to be filed under Section 13 or 15 of the Exchange
Act. Additionally, at any time when the Company is not subject to
Section 13 or 15 of the Exchange Act, for the benefit of holders and
beneficial owners from time to time of Securities, the Company shall
furnish, at its expense, upon request, to holders and beneficial owners
of Securities and prospective purchasers of Securities information
("Additional Issuer Information") satisfying the requirements of
subsection (d) of Rule 144A.
(h) Agreement Not to Offer or Sell Additional Securities. During the
period of 90 days following the date of the Offering Memorandum, the
Company will not, without the prior written consent of Banc of America
Securities LLC (which consent may be withheld at the sole discretion of
Banc of America Securities LLC), directly or indirectly, sell, offer,
contract or grant any option to sell, pledge, transfer or establish an
open "put equivalent position" within the meaning of Rule 16a 1 under
the Exchange Act, or otherwise dispose of or transfer, or announce the
offering of, or file any registration statement under the Securities
Act in respect of, any debt securities of the Company or securities
exchangeable for or convertible into debt securities of the Company
(other than as contemplated by this Agreement and to register the
Exchange Securities).
(i) Future Reports to the Initial Purchasers. For so long as any
Securities or Exchange Securities remain outstanding, the Company will
furnish to Banc of America Securities
14
LLC: (i) as soon as practicable after the end of each fiscal year,
copies of the Annual Report of the Company containing the balance sheet
of the Company as of the close of such fiscal year and statements of
income, stockholders' equity and cash flows for the year then ended and
the opinion thereon of the Company's independent public or certified
public accountants; (ii) as soon as practicable after the filing
thereof, copies of each proxy statement, Annual Report on Form 10-K,
Quarterly Report on Form 10-Q, Current Report on Form 8-K or other
report filed by the Company with the Commission, the National
Association of Securities Dealers, Inc. ("NASD") or any securities
exchange; and (iii) as soon as available, copies of any report or
communication of the Company mailed generally to holders of its capital
stock or debt securities (including the holders of the Securities).
(j) No Integration. The Company agrees that it will not and will cause
its Affiliates not to make any offer or sale of securities of the
Company of any class if, as a result of the doctrine of "integration"
referred to in Rule 502 under the Securities Act, such offer or sale
would render invalid (for the purpose of (i) the sale of the Securities
by the Company to the Initial Purchasers, (ii) the resale of the
Securities by the Initial Purchasers to Subsequent Purchasers or (iii)
the resale of the Securities by such Subsequent Purchasers to others)
the exemption from the registration requirements of the Securities Act
provided by Section 4 thereof or by Rule 144A or by Regulation S
thereunder or otherwise.
(k) Legended Securities. Each certificate for a Note will bear the
legend contained in "Transfer Restrictions" in the Offering Memorandum
for the time period and upon the other terms stated in the Offering
Memorandum.
(l) PORTAL. The Company will use its commercially reasonable efforts to
cause the Notes to be eligible for the National Association of
Securities Dealers, Inc. PORTALTM market (the "PORTAL market").
Banc of America Securities LLC, on behalf of the several
Initial Purchasers, may, in its sole discretion, waive in writing the
performance by the Company or any Guarantor of any one or more of the foregoing
covenants or extend the time for their performance.
SECTION 4. Payment of Expenses. Each of the Company and the Guarantors,
jointly and severally, agrees to pay all costs, fees and expenses incurred in
connection with the performance of its obligations hereunder and in connection
with the transactions contemplated hereby, including without limitation, (i) all
expenses incident to the issuance and delivery of the Securities (including all
printing and engraving costs), (ii) all necessary issue, transfer and other
stamp taxes in connection with the issuance and sale of the Securities to the
Initial Purchasers, (iii) all fees and expenses of the Company's and the
Guarantors' counsel, independent public or certified public accountants and
other advisors, (iv) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of each Preliminary
Offering Memorandum and the Offering Memorandum (including financial statements
and exhibits), and all amendments and supplements thereto, this Agreement, the
Registration Rights Agreement, the Indenture, the DTC Agreement, and the Notes
and the Guarantees, (v) all filing fees, attorneys' fees and expenses incurred
by the Company, the Guarantors or the Initial Purchasers in connection with
qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Securities for offer and sale under the
Blue Sky laws and, if requested by the Initial Purchasers, preparing and
printing a "Blue Sky Survey" or memorandum, and any supplements thereto,
advising the Initial Purchasers of such qualifications, registrations and
exemptions, (vi) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture, the
15
Securities and the Exchange Securities, (vii) any fees payable in connection
with the rating of the Securities or the Exchange Securities with the ratings
agencies and the listing of the Securities with the PORTAL market, (viii) any
filing fees incident to, and any reasonable fees and disbursements of counsel to
the Initial Purchasers in connection with the review by the NASD, if any, of the
terms of the sale of the Securities or the Exchange Securities, (ix) all fees
and expenses (including reasonable fees and expenses of counsel) of the Company
and the Guarantors in connection with approval of the Securities by DTC for
"book-entry" transfer, and (x) the performance by the Company and the Guarantors
of their respective other obligations under this Agreement. Except as provided
in this Section 4, Section 6, Section 8 and Section 9 hereof, the Initial
Purchasers shall pay their own expenses, including the fees and disbursements of
their counsel.
SECTION 5. Conditions of the Obligations of the Initial Purchasers. The
obligations of the several Initial Purchasers to purchase and pay for the
Securities as provided herein on the Closing Date shall be subject to the
accuracy of the representations and warranties on the part of each of the
Company and the Guarantors set forth in Section 1 hereof as of the date hereof
and as of the Closing Date as though then made and to the timely performance by
each of the Company and the Guarantors of its covenants and other obligations
hereunder, and to each of the following additional conditions:
(a) Accountants' Comfort Letter. On the date hereof, the Initial
Purchasers shall have received from (i) KPMG LLP, independent public or
certified public accountants for the Company and (ii) Deloitte & Touche
LLP, independent public or certified public accountants for Remington,
a letter dated the date hereof addressed to the Initial Purchasers, in
form and substance satisfactory to the Initial Purchasers, containing
statements and information of the type ordinarily included in
accountant's "comfort letters" to Initial Purchasers, delivered
according to Statement of Auditing Standards Nos. 72, 76 and 100 (or
any successor bulletins), with respect to the audited and unaudited
financial statements and certain financial information contained in the
Offering Memorandum.
(b) No Material Adverse Change or Ratings Agency Change. For the period
from and after the date of this Agreement and prior to the Closing
Date:
(i) in the judgment of the Initial Purchasers there shall
not have occurred any Material Adverse Change; and
(ii) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded
any securities of the Company or any of its subsidiaries by any
"nationally recognized statistical rating organization" as such term is
defined for purposes of Rule 436 under the Securities Act.
(c) Opinion of Counsel for the Company and the Guarantors. On the
Closing Date the Initial Purchasers shall have received the opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP or Xxxxx X. Xxxxx, counsel for
the Company and the Guarantors, dated as of the Closing Date, the forms
of which are attached as Exhibits X-0, X-0 xxx X-0.
(x) Xxxxxxx of Counsel for the Initial Purchasers. On the Closing Date
the Initial Purchasers shall have received the favorable opinion of
Shearman & Sterling LLP, counsel for the Initial Purchasers, dated as
of such Closing Date, with respect to such matters as may be reasonably
requested by the Initial Purchasers.
16
(e) Officers' Certificate. On the Closing Date the Initial Purchasers
shall have received a written certificate executed by the Chairman of
the Board, Chief Executive Officer or President and the Chief Financial
Officer or Chief Accounting Officer of each of the Company and the
Guarantors, dated as of the Closing Date, to the effect set forth in
subsection (b)(ii) of this Section 5, and further to the effect that:
(i) for the period from and after the date of this
Agreement and prior to the Closing Date there has not occurred any
Material Adverse Change;
(ii) the representations, warranties and covenants of the
Company and the Guarantors set forth in Section 1 of this Agreement are
true and correct with the same force and effect as though expressly
made on and as of the Closing Date; and
(iii) the Company and the Guarantors have each complied
with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the Closing Date.
(f) Bring-down Comfort Letter. On the Closing Date, the Initial
Purchasers shall have received from each of KPMG LLP, KPMG Deutsche
Treuhand--Gesellschaft and Deloitte & Touche LLP, a letter dated such
date, in form and substance satisfactory to the Initial Purchasers, to
the effect that they reaffirm the statements made in the letter
furnished by them pursuant to subsection (a) of this Section 5, except
that the specified date referred to therein for the carrying out of
procedures shall be no more than three business days prior to the
Closing Date.
(g) PORTAL Listing. At the Closing Date, the Notes shall have been
designated for trading on the PORTAL market.
(h) Registration Rights Agreement. The Company and each of the
Guarantors shall have entered into the Registration Rights Agreement
and the Initial Purchasers shall have received executed counterparts
thereof.
(i) Concurrent Transactions. The Concurrent Transactions shall have
been consummated on terms and conditions acceptable to the Initial
Purchasers.
(j) Notice of Redemption. At the Closing Date, Remington and Remington
Capital Corp. shall have mailed or caused to be mailed, by first class
mail, their irrevocable notice of redemption to (i) each Holder of
Series B Notes in accordance with the provisions of Article III of the
Indenture dated May 26, 1996, among Remington, Remington Capital Corp.
and The Bank of New York, as Trustee, and shall state that the
redemption date for the Series B Notes, which redemption date shall be
30 days from the date such notice is mailed; and (ii) each Holder of
Series D Notes and in accordance with the provisions of Article III of
the Indenture dated April 18, 2001, among Remington, Remington Capital
Corp. and The Bank of New York, as Trustee, and shall state that the
redemption date for the Series D Notes, which redemption date shall be
30 days from the date such notice is mailed.
(k) Notice of Termination. At the Closing Date, Remington shall have
delivered to the lenders under its Credit and Guarantee Agreement dated
as of August 21, 2001, as amended (the "Remington Credit Agreement"),
among Remington Products Company, L.L.C., Remington Consumer Products
Limited, Remington Products Gmbh, Remington Consumer Products (Ireland)
Limited, Remington Products (Canada) Inc., Fleet
17
Securities, Inc., Congress Financial Corporation (New England) and
Fleet Capital Corporation, its irrevocable notice of termination of the
Remington Credit Agreement.
(l) Additional Documents. On or before the Closing Date, the Initial
Purchasers and counsel for the Initial Purchasers shall have received
such information, documents and opinions as they may reasonably require
for the purposes of enabling them to pass upon the issuance and sale of
the Securities as contemplated herein, or in order to evidence the
accuracy of any of the representations and warranties, or the
satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied
when and as required to be satisfied, this Agreement may be terminated by the
Initial Purchasers by notice to the Company at any time on or prior to the
Closing Date, which termination shall be without liability on the part of any
party to any other party, except that Section 4, Section 6, Section 8 and
Section 9 shall at all times be effective and shall survive such termination.
SECTION 6. Reimbursement of Initial Purchasers' Expenses. If this
Agreement is terminated by the Initial Purchasers pursuant to Section 5 hereof,
or if the sale to the Initial Purchasers of the Securities on the Closing Date
is not consummated because of any refusal, inability or failure on the part of
the Company or any Guarantor to perform any agreement herein or to comply with
any provision hereof, each of the Company and the Guarantors, jointly and
severally, agrees to reimburse the Initial Purchasers (or such Initial
Purchasers as have terminated this Agreement with respect to themselves),
severally, upon demand for all out-of-pocket expenses that shall have been
reasonably incurred by the Initial Purchasers in connection with the proposed
purchase and the offering and sale of the Securities, including but not limited
to reasonable fees and disbursements of counsel, printing expenses, travel
expenses, postage, facsimile and telephone charges.
SECTION 7. Offer, Sale and Resale Procedures. Each of the Initial
Purchasers, on the one hand, and the Company and each of the Guarantors, on the
other hand, hereby establish and agree to observe the following procedures in
connection with the offer and sale of the Securities:
(A) Offers and sales of the Securities will be made
only by the Initial Purchasers or Affiliates thereof qualified to do so in the
jurisdictions in which such offers or sales are made. Each such offer or sale
shall only be made to (i) persons whom the offeror or seller reasonably believes
to be qualified institutional buyers (as defined in Rule 144A under the
Securities Act), or (ii) non-U.S. persons outside the United States to whom the
offeror or seller reasonably believes offers and sales of the Securities may be
made in reliance upon Regulation S under the Securities Act, upon the terms and
conditions set forth in Annex I hereto, which Annex I is hereby expressly made a
part hereof.
(B) The Securities will be offered by approaching
prospective Subsequent Purchasers on an individual basis. No general
solicitation or general advertising (within the meaning of Rule 502 under the
Securities Act) will be used in the United States in connection with the
offering of the Securities.
(C) Upon original issuance by the Company, and until
such time as the same is no longer required under the applicable requirements of
the Securities Act, the Securities (and all securities issued in exchange
therefor or in substitution thereof, other than the Exchange Securities) shall
bear the following legend:
"THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
18
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS NOTE NOR THE GUARANTEES ENDORSED
HEREON NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH
THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY
PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON)
(THE "RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE
COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") , TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSE (D) PRIOR TO THE END OF THE 40 DAY
DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE
(E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND
(ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE."
Following the sale of the Securities by the Initial Purchasers
to Subsequent Purchasers pursuant to the terms hereof, the
Initial Purchasers shall not be liable or responsible to the
Company for any losses, damages or liabilities suffered or
incurred by the Company, including any losses, damages or
liabilities under the Securities Act, arising from or relating
to any resale or transfer of any Security.
SECTION 8. Indemnification.
(a) Indemnification of the Initial Purchasers. Each of the Company and
the Guarantors, jointly and severally, agrees to indemnify and hold
harmless each Initial Purchaser, its directors, officers and employees,
and each person, if any, who controls any Initial
19
Purchaser within the meaning of the Securities Act and the Exchange Act
against any loss, claim, damage, liability or expense, as incurred, to
which such Initial Purchaser or such controlling person may become
subject, under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is
effected with the written consent of the Company), insofar as such
loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Offering Memorandum or the Offering
Memorandum (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; and to reimburse each Initial
Purchaser and each such controlling person for any and all expenses
(including the fees and disbursements of counsel chosen by Banc of
America Securities LLC) to which such Initial Purchaser or controlling
person is entitled under this Section 8 and subject to the limitations
set forth in this Section 8, as such expenses are reasonably incurred
by such Initial Purchaser or such controlling person in connection with
investigating, defending, settling, compromising or paying any such
loss, claim, damage, liability, expense or action; provided, however,
that the foregoing indemnity agreement shall not apply to any loss,
claim, damage, liability or expense to the extent, but only to the
extent, arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to the Company by
the Initial Purchasers expressly for use in any Preliminary Offering
Memorandum or the Offering Memorandum (or any amendment or supplement
thereto). The indemnity agreement set forth in this Section 8 shall be
in addition to any liabilities that the Company and the Guarantors may
otherwise have.
(b) Indemnification of the Company, the Guarantors, their Directors and
Officers. Each Initial Purchaser agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Guarantors and each of
their directors, officers and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act,
against any loss, claim, damage, liability or expense, as incurred, to
which the Company, the Guarantors or any such director, officer or
controlling person may become subject, under the Securities Act, the
Exchange Act, or other federal or state statutory law or regulation, or
at common law or otherwise (including in settlement of any litigation,
if such settlement is effected with the written consent of such Initial
Purchaser), insofar as such loss, claim, damage, liability or expense
(or actions in respect thereof as contemplated below) arises out of or
is based upon any untrue or alleged untrue statement of a material fact
contained in any Preliminary Offering Memorandum or the Offering
Memorandum (or any amendment or supplement thereto), or arises out of
or is 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 light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Offering
Memorandum or the Offering Memorandum (or any amendment or supplement
thereto), in reliance upon and in conformity with written information
furnished to the Company and the Guarantors by the Initial Purchasers
expressly for use therein; and to reimburse the Company, the Guarantors
or any such director, officer or controlling person for any legal and
other expenses to which the Company, a Guarantor or such controlling
person is entitled under this Section 8 and subject to the limitations
set forth in this Section 8, reasonably incurred by the Company, the
Guarantors or any such director, officer or controlling person in
20
connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action. The
Company and the Guarantors hereby acknowledges that the only
information that the Initial Purchasers have furnished to the Company
and the Guarantors expressly for use in any Preliminary Offering
Memorandum or the Offering Memorandum (or any amendment or supplement
thereto) are the statements set forth as in the sixth and ninth
paragraphs under the caption "Plan of Distribution" in the Offering
Memorandum; and the Initial Purchasers confirm that such statements are
correct. The indemnity agreement set forth in this Section 8 shall be
in addition to any liabilities that each Initial Purchaser may
otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement
thereof, but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified
party for contribution or otherwise than under the indemnity agreement
contained in this Section 8 or to the extent it is not prejudiced as a
proximate result of such failure. In case any such action is brought
against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in and, to the extent that it
shall elect, jointly with all other indemnifying parties similarly
notified, by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any such
action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that a
conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or
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, the indemnified party or parties
shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such
indemnifying party's election so to assume the defense of such action
and approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this Section 8
for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance
with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (together with local
counsel), approved by the indemnifying party (Banc of America
Securities LLC in the case of Section 8 and Section 9 hereof),
representing the indemnified parties who are parties to such action) or
(ii) 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 commencement of the
action, in each of which cases the fees and expenses of counsel shall
be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall not
be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any
21
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by Section 8 hereof, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or
consent to the entry of judgment in any pending or threatened action,
suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise
or consent (i) includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
action, suit or proceeding and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on
behalf of the indemnified party.
SECTION 9. Contribution. If the indemnification provided for in Section 8
hereof is for any reason held to be unavailable to or otherwise insufficient to
hold harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then (i) each indemnifying party
shall contribute to the aggregate amount paid or payable by such indemnified
party, as incurred, as a result of any losses, claims, damages, liabilities or
expenses referred to therein in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors, on the one hand,
and the Initial Purchasers, on the other hand, from the offering of the
Securities pursuant to this Agreement; or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Guarantors, on the one
hand, and the Initial Purchasers, on the other hand, in connection with the
statements or omissions or inaccuracies in the representations and warranties
herein which resulted in such losses, claims, damages, liabilities or expenses,
as well as any other relevant equitable considerations. The relative benefits
received by the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the Guarantors, and the total discount received by the Initial Purchasers
bear to the aggregate initial offering price of the Securities. The relative
fault of the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact or any such inaccurate
or alleged inaccurate representation or warranty relates to information supplied
by the Company and the Guarantors, on the one hand, or the Initial Purchasers,
on the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 8 hereof, any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in
Section 8 hereof with respect to notice of commencement of any action shall
apply if a claim for contribution is to be made under this Section 9; provided,
however, that no additional notice shall be required with respect to any action
for which notice has been given under Section 8 hereof for purposes of
indemnification.
22
The Company, the Guarantors and the Initial Purchasers agree
that it would not be just and equitable if contribution pursuant to this Section
9 were determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in this
Section 9.
Notwithstanding the provisions of this Section 9, no Initial
Purchaser shall be required to contribute any amount in excess of the discount
received by such Initial Purchaser in connection with the Securities distributed
by it. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11 of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute pursuant to this Section 9 are several,
and not joint, in proportion to their respective commitments as set forth
opposite their names in Schedule A. For purposes of this Section 9, each
director, officer and employee of an Initial Purchaser and each person, if any,
who controls an Initial Purchaser within the meaning of the Securities Act and
the Exchange Act shall have the same rights to contribution as such Initial
Purchaser, and each director of the Company and each person, if any, who
controls the Company within the meaning of the Securities Act and the Exchange
Act shall have the same rights to contribution as the Company.
SECTION 10. Termination of this Agreement. Prior to the Closing Date, this
Agreement may be terminated by the Initial Purchasers by notice given to the
Company if at any time: (i) trading or quotation in any of the Company's
securities shall have been suspended or limited by the commission or by the New
York Stock Exchange, or trading in securities generally on either the Nasdaq
Stock Market or the New York Stock Exchange shall have been suspended or
limited, or minimum or maximum prices shall have been generally established on
any of such stock exchanges by the Commission or the NASD; (ii) a general
banking moratorium shall have been declared by any federal or New York
authorities; (iii) there shall have occurred any outbreak or escalation of
national or international hostilities or any crisis or calamity, or any change
in the United States or international financial markets, or any substantial
change or development involving a prospective substantial change in United
States' or international political, financial or economic conditions, as in the
judgment of the Initial Purchasers is material and adverse and makes it
impracticable to market the Securities in the manner and on the terms described
in the Offering Memorandum or to enforce contracts for the sale of securities;
(iv) in the judgment of the Initial Purchasers there shall have occurred any
Material Adverse Change; or (v) the Company shall have sustained a material loss
by strike, fire, flood, earthquake, accident or other calamity of such character
as in the judgment of the Initial Purchasers may interfere materially with the
conduct of the business and operations of the Company regardless of whether or
not such loss shall have been insured. Any termination pursuant to this Section
10 shall be without liability on the part of (i) the Company or the Guarantors
to any Initial Purchaser, except that the Company and the Guarantors shall be
obligated to reimburse the expenses of the Initial Purchasers pursuant to
Sections 4 and 6 hereof, (ii) any Initial Purchaser to the Company or any
Guarantor, or (iii) any party hereto to any other party except that the
provisions of Section 8 and Section 9 hereof shall at all times be effective and
shall survive such termination.
SECTION 11. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the Guarantors, of their respective officers and
of the several 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 any Initial Purchaser or the Company, the Guarantors or
any of its or their partners, officers or directors or any controlling person,
as the case may be, and will survive delivery of and payment for the Securities
sold hereunder and any termination of this Agreement.
23
SECTION 12. Notices. All communications hereunder shall be in writing and
shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Initial Purchasers:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: High Yield Capital Markets
with a copy to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxxxxx
If to the Company or the Guarantors:
Rayovac Corporation
000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxx
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
SECTION 13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, including any substitute Initial Purchasers
pursuant to Section 16 hereof, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 8 and Section 9, and in
each case their respective successors, and no other person will have any right
or obligation hereunder. The term "successors" shall not include any purchaser
of the Securities as such from any of the Initial Purchasers merely by reason of
such purchase.
SECTION 14. Partial Unenforceability. The invalidity or unenforceability
of any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this
24
Agreement is for any reason determined to be invalid or unenforceable, there
shall be deemed to be made such minor changes (and only such minor changes) as
are necessary to make it valid and enforceable.
SECTION 15. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
Any legal suit, action or proceeding arising out of or based
upon this Agreement or the transactions contemplated hereby ("Related
Proceedings") may be instituted in the federal courts of the United States of
America located in the City and County of New York or the courts of the State of
New York in each case located in the City and County of New York (collectively,
the "Specified Courts"), and each party irrevocably submits to the non-exclusive
jurisdiction (except for proceedings instituted in regard to the enforcement of
a judgment of any such court (a "Related Judgment"), as to which such
jurisdiction is non-exclusive) of such courts in any such suit, action or
proceeding. Service of any process, summons, notice or document by mail to such
party's address set forth above shall be effective service of process for any
suit, action or other proceeding brought in any such court. The parties
irrevocably and unconditionally waive any objection to the laying of venue of
any suit, action or other proceeding in the Specified Courts and irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such suit, action or other proceeding brought in any such court has been brought
in an inconvenient forum.
SECTION 16. Default of One or More of the Several Initial Purchasers. If
any one or more of the several Initial Purchasers shall fail or refuse to
purchase Securities that it or they have agreed to purchase hereunder on the
Closing Date, and the aggregate number of Securities which such defaulting
Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase
does not exceed 10% of the aggregate number of the Securities to be purchased on
such date, the other Initial Purchasers shall be obligated, severally, in the
proportions that the number of Securities set forth opposite their respective
names on Schedule A bears to the aggregate number of Securities set forth
opposite the names of all such non-defaulting Initial Purchasers, or in such
other proportions as may be specified by the Initial Purchasers with the consent
of the non-defaulting Initial Purchasers, to purchase the Securities which such
defaulting Initial Purchaser or Initial Purchasers agreed but failed or refused
to purchase on such date. If any one or more of the Initial Purchasers shall
fail or refuse to purchase Securities and the aggregate number of Securities
with respect to which such default occurs exceeds 10% of the aggregate number of
Securities to be purchased on the Closing Date, and arrangements satisfactory to
the Initial Purchasers and the Company for the purchase of such Securities are
not made within 48 hours after such default, this Agreement shall terminate
without liability of any party to any other party except that the provisions of
Section 4, Section 6, Section 8 and Section 9 shall at all times be effective
and shall survive such termination. In any such case either the Initial
Purchasers or the Company shall have the right to postpone the Closing Date, as
the case may be, but in no event for longer than seven days in order that the
required changes, if any, to the Offering Memorandum or any other documents or
arrangements may be effected.
As used in this Agreement, the term "Initial Purchaser" shall
be deemed to include any person substituted for a defaulting Initial Purchaser
under this Section 16. Any action taken under this Section 16 shall not relieve
any defaulting Initial Purchaser from liability in respect of any default of
such Initial Purchaser under this Agreement.
SECTION 17. General Provisions. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This
25
Agreement may be executed in two or more counterparts, each one of which shall
be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument. This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express
or implied) may be waived unless waived in writing by each party whom the
condition is meant to benefit. The Table of Contents and the section headings
herein are for the convenience of the parties only and shall not affect the
construction or interpretation of this Agreement.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
RAYOVAC CORPORATION
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President, Secretary and
General Counsel
ROV HOLDING, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
ROVCAL INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Secretary
26
The foregoing Purchase Agreement is hereby confirmed and
accepted by the Initial Purchasers as of the date first above written.
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
ABN AMRO INCORPORATED
By: Banc of America Securities LLC
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Director
27
SCHEDULE A
INITIAL PURCHASERS
Aggregate
Principal Amount
of Securities to be
Initial Purchasers Purchased
Banc of America Securities LLC .............. $306,250,000
Citigroup Capital Markets Inc................ 35,000,000
ABN AMRO Incorporated........................ 8,750,000
Total............................... $350,000,000
============
Sch-A-1
SCHEDULE C
SUBSIDIARY JURISDICTION OF INCORPORATION
---------- -----------------------------
Sch-C-1
ANNEX I
RESALE PURSUANT TO REGULATION S OR RULE 144A.
Each Initial Purchaser understands that:
Such Initial Purchaser agrees that (i) it has not offered or
sold and will not offer or sell the Securities in the United States or to, or
for the benefit or account of, a U.S. Person (other than a distributor), in each
case, as defined in Rule 902 under the Securities Act as part of its
distribution at any time and (ii) otherwise until 40 days after the later of the
commencement of the offering of the Securities pursuant hereto and the Closing
Date, other than in accordance with Regulation S of the Securities Act or
another exemption from the registration requirements of the Securities Act. Such
Initial Purchaser agrees that, during such 40-day restricted period, it will not
cause any advertisement with respect to the Securities (including any
"tombstone" advertisement) to be published in any newspaper or periodical or
posted in any public place and will not issue any circular relating to the
Securities, except such advertisements as permitted by and include the
statements required by Regulation S.
With respect to offers and sales outside the United States to
persons who are not U.S. persons, each of the Initial Purchasers hereby further
represents and agrees with the Company that:
(i) the Securities offered and sold by it pursuant hereto in
reliance on Regulation S have been and will be offered and sold only in offshore
transactions;
(ii) the sale of the Securities offered and sold by it pursuant
hereto in reliance on Regulation S is not part of a plan or scheme to evade the
registration provisions of the Securities Act; and
(iii) it understands that 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 Rule 144A or Regulation S under the Securities Act or pursuant
to another exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
Terms used in this Annex I and not otherwise defined in this
Agreement have the meanings given to them by Regulation S.
Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Securities by it to any distributor, dealer or person
receiving a selling concession, fee or other remuneration during the 40-day
restricted period referred to in Rule 903 under the Securities Act, it will send
to such distributor, dealer or person receiving a selling concession, fee or
other remuneration a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (the "Securities Act"), and
may not be offered and sold within the United States or to, or for the
account or benefit of, U.S. persons as part of your distribution at any
time or (ii) otherwise until 40 days after the later of the
commencement of the Offering and the Closing Date, except in either
case in accordance with Regulation S under the Securities Act (or Rule
144A or to Accredited Institutions in transactions that are exempt
ANNEX-1
from the registration requirements of the Securities Act), and in
connection with any subsequent sale by you of the Notes covered hereby
in reliance on Regulation S during the period referred to above to any
distributor, dealer or person receiving a selling concession, fee or
other remuneration, you must deliver a notice to substantially the
foregoing effect. Terms used above have the meanings assigned to them
in Regulation S."
Such Initial Purchaser agrees that the Securities offered and
sold in reliance on Regulation S will be represented upon issuance by a
global security that may not be exchanged for definitive securities
until the expiration of the 40-day restricted period referred to in
Rule 903 of the Securities Act and only upon certification of
beneficial ownership of such Securities by non-U.S. persons or U.S.
persons who purchased such Securities in transactions that were exempt
from the registration requirements of the Securities Act.
ANNEX-2
