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EXHIBIT 4.3
TEKNI-PLEX, INC.
$75,000,000
11 1/4% Senior Subordinated Securities due 2007
Purchase Agreement
April 1, 1997
X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Tekni-Plex, Inc., a corporation formed under the laws of Delaware (the
"Company"), proposes to issue and sell to X.X. Xxxxxx Securities Inc. (the
"Initial Purchaser") $75,000,000 principal amount of its 11 1/4% Senior
Subordinated Securities due 2007 (the "Notes"). The Notes will be issued
pursuant to the provisions of an Indenture to be dated as of April 1, 1997 (the
"Indenture") among the Company, the Guarantor (as defined) and Marine Midland
Bank, as trustee (the "Trustee"). The Notes will be guaranteed (the "Guarantee"
and, collectively with the Notes, the "Securities") on a senior subordinated
basis by Dolco Packaging Corp., a Delaware corporation (the "Guarantor").
The sale of the Securities to the Initial Purchaser will be made
without registration of the Securities under the Securities Act of 1933, as
amended (the "Act"), in reliance upon the exemption therefrom provided by
Section 4(2) of the Act. Holders of the Securities will have the benefits of a
Registration Rights Agreement to be dated as of April 4, 1997 among the Company,
the Guarantor and the Initial Purchaser (the "Registration Rights Agreement").
The Company and the Guarantor hereby agree with the Initial Purchaser
as follows:
1. The Company agrees to issue and sell the Notes and the Guarantor
agrees to issue the Guarantee to the Initial Purchaser as hereinafter provided,
and the Initial Purchaser, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter stated, agrees to
purchase from the Company all of the Securities at a price (the "Purchase
Price") equal to 97% of their principal amount. No additional consideration
shall be paid by the Initial Purchaser for the Guarantee.
2. The Company and the Guarantor understand that the Initial Purchaser
intends (x) to offer privately the Securities as soon after this Agreement has
become effective as in the
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judgment of the Initial Purchaser is advisable and (y) initially to offer the
Securities upon the terms set forth in the Offering Memorandum (as defined
below).
The Company and the Guarantor confirm that they have authorized the
Initial Purchaser, subject to the restrictions set forth below, to distribute
copies of the Offering Memorandum in connection with the offering of the
Securities. The Initial Purchaser hereby makes to the Company and the Guarantor
the following representations and agreements:
(i) it is a qualified institutional buyer within the meaning
of Rule 144A under the Act; and
(ii) (A) it will not solicit offers for, or offer to sell, the
Securities by any form of general solicitation or general advertising
(as those terms are used in Regulation D under the Act) or in any
manner involving a public offering within the meaning of Section 4(2)
of the Act (B) it will solicit offers for the Securities only from, and
will offer, sell or deliver the Securities only to, (1) persons whom it
reasonably believes to be "qualified institutional buyers" within the
meaning of Rule 144A under the Act to whom notice has been given that
such offer, sale or delivery is being made in reliance on Rule 144A in
transactions under Rule 144A, (2) institutions which it reasonably
believes are "accredited investors" as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Act ("Accredited Investors") who,
in the case of purchasers described in this clause (B)(2), purchase not
less than $250,000 principal amount of Securities for their own account
and for any discretionary account for which they are acquiring
Securities and provide it a letter in the form of Annex A to the
Offering Memorandum or (3) upon the terms and conditions set forth in
Annex I to this Agreement, and (C) it is not purchasing with a view to
or for offer or sale in connection with any distribution that would be
in violation of federal or state law.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds, to the account specified by the Company to the
Initial Purchaser no later than noon on the Business Day (as defined below)
prior to the Closing Date (as defined below), on April 4, 1997, or at such other
time on the same or such other date, not later than the fifth Business Day
thereafter, as the Initial Purchaser and the Company may agree upon in writing.
The time and date of such payment are referred to herein as the "Closing Date".
As used herein, the term "Business Day" means any day other than a day on which
banks are permitted or required to be closed in New York City.
Payment for Securities sold in reliance on Rule 144A under the
Securities Act or in offshore transactions in reliance on Regulation S under the
Securities Act shall be made against delivery to the nominee of The Depository
Trust Company for the account of the Initial Purchaser of one or more global
notes representing the Securities (collectively, the "Global Notes"), with any
transfer taxes payable in connection with the transfer to the Initial Purchaser
of the Securities duly paid by the Company. Payment for Securities sold to
Accredited Investors shall be made against delivery to the Initial Purchaser of
one or more certificated notes ("Certificated Notes") registered in such names
and in such denominations as the Initial Pur-
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chaser shall request in writing not later than two full Business Days prior to
the Closing Date, with any transfer taxes payable in connection with the
transfer to the Initial Purchasers of such Securities duly paid by the Company.
The Global Notes and the Certificated Notes will be made available for
inspection by the Initial Purchaser at the office of X.X. Xxxxxx Securities Inc.
at the address set forth above not later than 1:00 P.M., New York City time, on
the Business Day prior to the Closing Date.
4. Each of the Company and the Guarantor represents and warrants to the
Initial Purchaser that:
(a) A preliminary offering memorandum, dated March 14, 1997
(the "Preliminary Offering Memorandum") and an offering memorandum,
dated April 1, 1997 (the "Offering Memorandum") have been prepared in
connection with the offering of the Securities. Any reference to the
Preliminary Offering Memorandum or the Offering Memorandum shall be
deemed to refer to and include any Rule 144A(d)(4) Information (as
defined in Section 5(m)) furnished by the Company prior to the
completion of the distribution of the Securities. The Preliminary
Offering Memorandum or the Offering Memorandum and any amendments or
supplements thereto did not and will not, as of their respective dates,
contain 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 and warranty does not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing by the Initial Purchaser relating to
the Initial Purchaser to the Company expressly for use in the
Preliminary Offering Memorandum, the Offering Memorandum or any
amendment or supplement thereto;
(b) the financial statements, and the related notes thereto,
included in the Offering Memorandum present fairly the consolidated
financial position of the Company and its consolidated subsidiary, as
of the dates indicated and the results of their operations and the
changes in their consolidated cash flows for the periods specified;
said financial statements have been prepared in conformity with
generally accepted accounting principles and practices applied on a
consistent basis; and the pro forma financial information, and the
related notes thereto, included in the Offering Memorandum are based
upon good faith estimates and assumptions believed by the Company to be
reasonable;
(c) since the respective dates as of which information is
given in the Offering Memorandum, except as otherwise stated therein,
there has not been any material change in the capital stock or
long-term debt of the Company or its subsidiary, or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the business, prospects, financial
position, stockholders' equity or results of operations of the Company
and the Guarantor, taken as a whole, otherwise than as set forth or
contemplated in the Offering Memorandum; and except as set forth or
contemplated in the Offering Memorandum, neither the Company nor the
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Guarantor has entered into any transaction or agreement (whether or not
in the ordinary course of business) material to the Company and the
Guarantor, taken as a whole;
(d) the Company has been duly incorporated and is validly
existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Offering
Memorandum, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have
a material adverse effect on the Company and the Guarantor, taken as a
whole;
(e) the Company has no subsidiary other than the Guarantor;
the Guarantor has been duly incorporated and is validly existing as a
corporation under the laws of its jurisdiction of incorporation, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Memorandum, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction in
which its owns or leases properties or conducts any business, so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse effect
on the Company and the Guarantor, taken as a whole; and all the
outstanding shares of capital stock of the Guarantor has been duly
authorized and validly issued, are fully-paid and non-assessable under
the corporate laws of the state of incorporation, and (except as
described in the Offering Memorandum) are owned by the Company free and
clear of all liens, encumbrances, security interests and claims;
(f) this Agreement has been duly authorized, executed and
delivered by each of the Company and the Guarantor;
(g) the Registration Rights Agreement has been duly authorized
by each of the Company and the Guarantor, and when executed and
delivered by them and (assuming the due authorization, execution and
delivery by the other party thereto) will constitute a valid agreement
of each of the Company and the Guarantor and, subject to (i) the effect
of applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other laws affecting creditors' rights
generally, (ii) general principles of equity and (iii) principles of
public policy limiting the rights to enforce indemnification provisions
(clauses (i), (ii) and (ii) being referred to herein as the "Creditors'
Rights Limitations"), will be binding and will be enforceable in
accordance with its terms; and will conform, in all material respects,
to the description thereof in the Offering Memorandum;
(h) the Notes have been duly authorized by the Company, and
when issued and delivered pursuant to this Agreement, will have been
duly executed, issued and delivered and, when the Notes are
authenticated by the Trustee in accordance with the
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terms of the Indenture (assuming the due authorization, execution and
delivery by the Trustee) and are delivered to and paid for by the
Initial Purchaser in accordance with the terms of this Agreement, will
constitute valid obligations of the Company entitled to the benefits
provided by the Indenture and, subject to the Creditors' Rights
Limitations, will be binding and will be enforceable in accordance with
their terms; the Indenture has been duly authorized and, when executed
and delivered by each of the Company and the Guarantor (assuming the
due authorization, execution and delivery by the Trustee), the
Indenture will constitute a valid instrument of the Company and,
subject to the Creditors' Rights Limitations, will be binding and will
be enforceable in accordance with its terms; and the Securities and the
Indenture will conform, in all material respects, to the descriptions
thereof in the Offering Memorandum;
(i) the Guarantee has been duly authorized by the Guarantor,
and when the Notes are issued and delivered pursuant to this Agreement,
will have been duly executed and delivered and, when the Notes are
authenticated by the Trustee in accordance with the terms of the
Indenture (assuming the due authorization, execution and delivery by
the Trustee) and are delivered to and paid for by the Initial Purchaser
in accordance with the terms of this Agreement, will constitute a valid
obligation of the Guarantor and, subject to the Creditors' Rights
Limitations, will be binding and will be enforceable in accordance with
its terms; the Indenture has been duly authorized by the Guarantor and,
when executed and delivered by each of the Guarantor and the Company
(assuming the due authorization, execution and delivery by the
Trustee), the Indenture will constitute a valid instrument of Guarantor
and, subject to the Creditors' Rights Limitations, will be binding and
will be enforceable in accordance with its terms;
(j) none of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale
of the Securities) will violate or result in a violation of Section 7
of the Exchange Act, or any regulation promulgated thereunder,
including, without limitation, Regulations G, T, U, and X of the Board
of Governors of the Federal Reserve System;
(k) neither the Company nor the Guarantor is, or with the
giving of notice or lapse of time or both would be, in violation of or
in default under its Certificate of Incorporation or By-Laws or any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or the Guarantor is a party or by
which it or the Guarantor or any of their respective properties is
bound, except for violations and defaults which individually and in the
aggregate are not material to the Company and the Guarantor, taken as a
whole or to the holders of the Securities as such; the issue and sale
of the Securities and the performance by each of the Company and the
Guarantor of all of the provisions of their obligations under the
Securities, the Indenture, the Registration Rights Agreement and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or the Guarantor is a party or by which
the Company or the Guar-
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antor is bound or to which any of the property or assets of the Company
or the Guarantor is subject, nor will any such action result in any
violation of the provisions of the Certificate of Incorporation or
By-Laws of the Company or the Guarantor or (assuming the accuracy of
the representations by, and compliance with the agreements of, the
Initial Purchaser set forth in paragraph 2 of this Agreement) any
applicable law or statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company,
the Guarantor or any of their respective properties; and no consent,
approval, authorization, order, license, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Securities or the consummation by the
Company or the Guarantor of the transactions contemplated by this
Agreement or the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as may be required
under any state securities or Blue Sky Laws in connection with the
purchase and distribution of the Securities by the Initial Purchaser;
(l) other than as set forth or contemplated in the Offering
Memorandum, there are no legal or governmental investigations, actions,
suits or proceedings pending or, to the knowledge of the Company or the
Guarantor, threatened against or affecting the Company or the Guarantor
or any of their respective properties or to which the Company or the
Guarantor is or may be a party or to which any property of the Company
or the Guarantor is or may be the subject which, if determined
adversely to the Company or the Guarantor, could individually or in the
aggregate have, or reasonably be expected to have, a material adverse
effect on the business, prospects, financial position, stockholders'
equity or results of operations of the Company and the Guarantor, taken
as a whole and, to the best of the Company's and the Guarantor's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(m) neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D under the Act ("Regulation D")) of the Company
has directly, or through any agent, sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any security (as
defined in the Act) which is or will be integrated with the sale of the
Securities in a manner that would require the registration under the
Act of the offering contemplated by the Offering Memorandum;
(n) neither the Company, the Guarantor nor any person (other
than the Initial Purchaser, as to which the Company makes no
representation) acting on their behalf has offered or sold the
Securities by means of any general solicitation or general advertising
within the meaning of Rule 502(c) under the Act or, with respect to
Securities sold outside the United States to non-U.S. persons (as
defined in Rule 902 under the Act), by means of any directed selling
efforts within the meaning of Rule 902 under the Act and the Company,
the Guarantor and any of their affiliates and any person (other than
the Initial Purchaser) acting on their behalf has complied with and
will implement the "offering restriction" within the meaning of such
Rule 902;
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(o) the Company is not, and will not be after giving effect to
the offering and sale of the Securities to be sold and the application
of the proceeds from such sale (as described in the Offering Memorandum
under the caption "Use of Proceeds"), an "investment company" or an
entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended;
(p) assuming that the representations of the Initial Purchaser
set forth in paragraph 2 of this Agreement are true, correct and
complete and assuming compliance by the Initial Purchaser with its
agreements in paragraph 2 of this Agreement, and assuming that the
representations contained in the accredited investor letter
(substantially in the form of Annex A to the Offering Memorandum)
completed by Accredited Investors purchasing Securities are true and
correct as of the Closing Date, and assuming compliance by such
Accredited Investors with the agreements in such letter, it is not
necessary in connection with the offer, sale and delivery of the
Securities in the manner contemplated by this Agreement to register the
Securities under the Act or to qualify an indenture under the Trust
Indenture Act of 1939, as amended (the "TIA");
(q) the Securities satisfy the requirements set forth in Rule
144A(d)(3) under the Act;
(r) BDO Xxxxxxx, LLP and Xxxx Xxxxx Xxxxxx & Co., P.A., who
have certified certain financial statements of the Company and its
subsidiaries and Coopers & Xxxxxxx L.L.P. who have certified certain
financial statements of Dolco Packaging Corporation, are independent
public accountants as required by the Act;
(s) the Company and the Guarantor have good and marketable
title in fee simple to all material items of real property and good and
marketable title to all material personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except
such as are otherwise described or referred to in the Offering
Memorandum or such as do not materially affect the value of such
property and do not interfere with the use made or proposed to be made
of such property by the Company and the Guarantor; and any real
property and buildings held under lease by the Company and the
Guarantor are held by them under valid, existing and enforceable leases
(subject to the Creditors' Rights Limitations) with such exceptions as
are not material and do not interfere with the use made or proposed to
be made of such property and buildings by the Company or the Guarantor.
The Company and the Guarantor own or possess, or have no reason to
believe they cannot acquire on reasonable terms, adequate licenses or
other rights to use all patents, trademarks, service marks, trade
names, copyrights and know-how necessary to conduct the businesses now
or proposed to be operated by them as described in the Offering
Memorandum, except where the failure to own, possess or have the
ability to acquire any such licenses or other rights could not,
individually or in the aggregate, be reasonably expected to have a
material adverse effect on the Company and the Guarantor, taken as a
whole, and neither the Company nor the Guarantor has received any
written or, to the best knowledge of the Company or the Guarantor, oral
notice of infringement of or conflict with as-
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serted rights of others with respect to any patents, trademarks,
service marks, trade names, copyrights or know-how which, if such
assertion of infringement or conflict were sustained, would have a
material adverse effect on the business, prospects, financial position,
stockholders' equity or results of operations of the Company and the
Guarantor, taken as a whole;
(t) the Company has, to the extent required, complied with all
provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws
of Florida) relating to doing business with the Government of Cuba or
with any person or affiliate located in Cuba;
(u) the Company and its subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be
filed and have paid all taxes shown thereon and all assessments
received by them or any of them to the extent that such taxes have
become due and are not being contested in good faith, except that the
Guarantor has not filed tax returns for 1995 and for the
pre-acquisition fiscal period ended February 21, 1996, which are
currently in preparation, and except for the payment of the taxes to be
shown thereon; such taxes for 1995 of the Guarantor have been estimate
and accrued in the Guarantor's income statement for 1995 presented in
the Offering Memorandum and such taxes for the fiscal period ended
February 21, 1996 of the Guarantor have been estimated and accrued in
the Guarantor's internal income statement for such fiscal period; and,
except as disclosed in the Offering Memorandum and apart from the
amounts to be shown as due on such tax returns of the Guarantor now
being prepared (which in the aggregate will not exceed, by a material
amount, the amount accrued therefor in such income statements), the
Company has no knowledge of any tax deficiency which has been or might
reasonably be expected to be asserted or threatened against the Company
or the Guarantor;
(v) each of the Company and the Guarantor owns, possesses or
has obtained all material licenses, permits, certificates, consents,
orders, approvals and other authorizations from, and has made all
declarations and filings with, all federal, state, local and other
governmental authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case may be, and
to operate its properties and to carry on its business as conducted as
of the date hereof, except to the extent that the failure to so obtain
or file, individually or in the aggregate, could not reasonably be
expected to have a material adverse effect on the Company and the
Guarantor, taken as a whole, and neither the Company nor the Guarantor
has received any actual notice, or is not aware, of any proceeding
relating to revocation or modification of any such license, permit,
certificate, consent, order, approval or other authorization, except as
described in the Offering Memorandum; and, each of the Company and the
Guarantor is in compliance with all laws and regulations relating to
the conduct of its business as of the date hereof;
(w) there are no existing or, to the best knowledge of the
Company, threatened labor disputes with the employees of the Company or
the Guarantor which are
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likely to have a material adverse effect on the Company and the
Guarantor, taken as a whole;
(x) each of the Company and the Guarantor (i) is in compliance
with any and all applicable federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) has received all permits,
licenses or other approvals required of it under applicable
Environmental Laws to conduct its business and (iii) is in compliance
or is in the process of complying with all terms and conditions of any
such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on
the Company and the Guarantor, taken as a whole; 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, any related
constraints on operating activities and any potential liabilities to
third parties) would not, individually or in the aggregate, reasonably
be expected to have a material adverse effect on the Company and the
Guarantor, taken as a whole; and
(y) each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), that is maintained, administered or contributed to by the
Company or any affiliates of the Company for employees or former
employees of the Company and its affiliates has been maintained, in all
material respects, in compliance with its terms and the requirements of
any applicable statutes, orders, rules and regulations, including but
not limited to ERISA and the Internal Revenue Code of 1986, as amended
(the "Code"); no prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975 of the Code has occurred with respect to
any such plan excluding transactions effected pursuant to a statutory
or administrative exemption; and for each such plan which is subject to
the funding rules of Section 412 of the Code or Section 302 of ERISA no
"accumulated funding deficiency" as defined in Section 412 of the Code
has been incurred, whether or not waived, and the fair market value of
the assets of each such plan which is subject to Title IV of ERISA
(excluding for these purposes accrued but unpaid contributions)
exceeded the present value of all benefits accrued under such plan as
determined pursuant to the actuarial report prepared by Coopers &
Xxxxxxx as of December 31, 1995.
5. Each of the Company and the Guarantor covenants and agrees with the
Initial Purchaser as follows:
(a) before distributing any amendment or supplement to the
Offering Memorandum, to furnish to the Initial Purchaser a copy of the
proposed amendment or
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supplement for review and not to distribute any such proposed amendment
or supplement to which the Initial Purchaser reasonably objects;
(b) if, at any time prior to the completion of the initial
placement of the Securities, any event shall occur as a result of which
it is necessary to amend or supplement the Offering Memorandum in order
that the Offering Memorandum does not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances when the
Offering Memorandum is delivered to a purchaser, not misleading, or if
it is necessary to amend or supplement the Offering Memorandum to
comply with law, forthwith to prepare and furnish, at the expense of
the Company, to the Initial Purchaser and to the dealers (whose names
and addresses the Initial Purchaser will furnish to the Company) to
which Securities may have been sold by the Initial Purchaser on behalf
of the Initial Purchaser and to any other dealers upon request, such
amendments or supplements to the Offering Memorandum as may be
necessary so that the Offering Memorandum as so amended or supplemented
will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances when the Offering Memorandum
is delivered to a purchaser, not misleading or so that the Offering
Memorandum will comply with law;
(c) to cooperate with you and your counsel in connection with
the registration or qualification of the Securities for offering and
sale by the Initial Purchaser and by dealers under the securities or
Blue Sky laws of such jurisdictions as you may designate and will file
such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification;
provided that in no event shall the Company or the Guarantor be
obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to
taxation or service of process in suits, other than those arising out
of the Offering or sale of the Securities, in any jurisdiction where it
is not now so subject;
(d) so long as the Securities are outstanding, to furnish to
the Initial Purchaser copies of all reports or other communications
(financial or other) furnished to holders of Securities, and copies of
any reports and financial statements furnished to or filed with the
Commission or any national securities exchange;
(e) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell, or otherwise dispose of any
debt securities of or guaranteed by the Company or the Guarantor which
are substantially similar to the Securities;
(f) to use the net proceeds received by the Company from the
sale of the Securities pursuant to this Agreement in the manner
specified in the Offering Memorandum under the caption "Use of
Proceeds";
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(g) if requested by you, to use its best efforts to cause such
Securities to be eligible for the PORTAL trading system of the National
Association of Securities Dealer, Inc.;
(h) to furnish to the holders of the Securities as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries
certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the date of
the Offering Memorandum), consolidated summary financial information of
the Company and its subsidiaries of such quarter in reasonable detail;
(i) during the period of two years after the Closing Date, not
to, and not to permit any of its "affiliates" (as defined in Rule 144
under the Act) to, resell any of the Securities which constitute
"restricted securities" under Rule 144 that have been reacquired by any
of them;
(j) whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses incident to the performance of
their obligations hereunder, including without limiting the generality
of the foregoing, all costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the
Securities, including any expenses of the Trustee, (ii) incident to the
preparation, printing and distribution of the Offering Memorandum and
any preliminary offering memorandum (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in
connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such
jurisdictions as the Initial Purchaser may designate (including fees of
counsel for the Initial Purchaser and their disbursements), (iv) in
connection with the application for eligibility for trading of the
Securities in the PORTAL trading system, (v) in connection with the
printing (including word processing and duplication costs) and delivery
of this Agreement, the Indenture, the Registration Rights Agreement,
the Preliminary and Supplemental Blue Sky Memoranda and any Legal
Investment Survey and the furnishing to the Initial Purchaser and
dealers of copies of the Offering Memorandum, including mailing and
shipping, as herein provided, (vi) payable to rating agencies in
connection with the rating of the Securities, and (vii) incurred by the
Company in connection with a "road show" presentation to potential
investors;
(k) to take all reasonable action that is appropriate or
necessary to assure that its offerings of other securities will not be
integrated for purposes of the Act with the offerings contemplated
hereby;
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12
(l) not to solicit any offer to buy or offer to sell
Securities by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) of Regulation D under the
Act;
(m) while the Securities remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Act, during any period in which it is not subject to Section 13 or
15(d) under the Exchange Act, to make available to the Initial
Purchaser and any holder of Securities in connection with any sale
thereof and any prospective purchaser of Securities, in each case upon
request, the information specified in, and meeting the requirements of,
Rule 144A(d)(4) ("Rule 144A(d)(4) Information") under the Act (or any
successor thereto); and
(n) not to take any action prohibited by Regulation M under
the Exchange Act (or any successor provision), in connection with the
distribution of the Securities contemplated hereby.
6. The obligations of the Initial Purchaser hereunder to purchase the
Securities on the Closing Date are subject to the performance, in all material
respects, by each of the Company and the Guarantor of their obligations
hereunder and to the following additional conditions:
(a) the representations and warranties of each of the Company
and the Guarantor contained herein are true and correct on and as of
the Closing Date as if made on and as of the Closing Date and each of
the Company and the Guarantor shall have complied, in all material
respects, with all agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
(b) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (iii) any
review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term
is defined for purposes of Rule 436(g)(2) under the Act;
(c) since the respective dates as of which information is
given in the Offering Memorandum, except as otherwise stated therein,
there shall not have been any material change in the capital stock or
long-term debt of any of the Company or the Guarantor or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the business, prospects, financial
position, stockholders' equity or results of operations of the Company
or the Guarantor, taken as a whole, otherwise than as set forth or
contemplated in the Offering Memorandum, the effect of which in the
judgment of the Initial Purchaser makes it impracticable or inadvisable
to proceed with the offering or the delivery of the Securities on the
Closing Date on the terms and in the manner contemplated in the
Offering Memorandum; and
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13
neither the Company nor the Guarantor has sustained since the date of
the latest audited financial statements included in the Offering
Memorandum any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Offering Memorandum;
(d) the Initial Purchaser shall have received on and as of the
Closing Date a certificate of the Company and the Guarantor signed for
the Company and the Guarantor by an executive officer of each of the
Company and the Guarantor, with specific knowledge about such Company's
or Guarantor's financial matters, respectively, satisfactory to the
Initial Purchaser to the effect set forth in subsections (a) and (b) of
this Section and to the further effect that there has not occurred any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, prospects,
financial position, stockholders' equity or results of operations of
the Company and the Guarantor, taken as a whole, from those set forth
or contemplated in the Offering Memorandum;
(e) Winthrop, Stimpson, Xxxxxx & Xxxxxxx, Counsel for the
Company, shall have furnished to the Initial Purchaser their written
opinion, dated the Closing Date in form and substance satisfactory to
the Initial Purchaser, to the effect that:
(i) the Company has been duly organized and is
validly existing as a corporation in good standing under the
laws of Delaware with power and authority to own its
properties and conduct its business as described in the
Offering Memorandum;
(ii) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of New Jersey;
(iii) the Guarantor has been duly organized and is
validly existing as a corporation under the laws of its
jurisdiction of incorporation with power and authority to own
its properties and conduct its business as described in the
Offering Memorandum and has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of the states of New Jersey, Georgia,
Indiana, Texas, and Washington; and all of the outstanding
shares of capital stock of the Guarantor have been duly and
validly authorized and issued, are fully paid and
non-assessable under the corporate laws of Delaware.
(iv) to the best of such counsel's knowledge, other
than as set forth or contemplated in the Offering Memorandum,
there are no legal or governmental investigations, actions,
suits or proceedings (i) pending or threatened against or
affecting the Company or the Guarantor or any of their
respective
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properties or to which the Company or the Guarantor is or may
be a party or to which any property of the Company or the
Guarantor is or may be the subject which, if determined
adversely to the Company or the Guarantor, could individually
or in the aggregate have, or reasonably be expected to have, a
material adverse effect on the general affairs, business,
prospects, management, financial position, stockholders'
equity or results of operations of the Company and the
Guarantor, taken as a whole or (ii) which seek to restrain,
enjoin, prevent the consummation of or otherwise challenge the
issuance or sale of the Securities in the manner contemplated
by the Offering Memorandum or the consummation of the
Transactions; to such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others (its being acknowledged that such counsel
acts in connection with corporate and securities law matters
and are not counsel of record in any litigated matters);
(v) this Agreement has been duly authorized, executed
and delivered by each of the Company and the Guarantor; the
Registration Rights Agreement has been duly authorized,
executed and delivered by each of the Company and the
Guarantor and is a valid agreement of each of the Company and
the Guarantor and, subject to the Creditors' Rights
Limitations, is binding and is enforceable in accordance with
its terms;
(vi) the Guarantee has been duly authorized, executed
and delivered by the Guarantor and, and upon delivery to and
payment for the Notes by the Initial Purchaser in accordance
with the terms of this Agreement, will constitute a valid
obligation of the Guarantor and, subject to the Creditors'
Rights Limitations, is binding and is enforceable against the
Guarantor in accordance with its terms;
(vii) the Notes have been duly authorized, executed
and delivered by the Company and, when duly authenticated in
accordance with the terms of the Indenture and delivered to
and paid for by the Initial Purchaser in accordance with the
terms of this Agreement, will constitute valid obligations of
the Company entitled to the benefits provided by the Indenture
and, subject to the Creditors' Rights Limitations, are binding
and are enforceable against the Company in accordance with
their terms; and the Securities and the Indenture conform to
the descriptions thereof in the Offering Memorandum;
(viii) the Indenture has been duly authorized,
executed and delivered by the Company and the Guarantor and
(assuming the due authorization, execution and delivery by the
Trustee) constitutes a valid agreement of the Company and the
Guarantor and, subject to the Creditors' Rights Limitations,
is binding and is enforceable against the Company and the
Guarantor, respectively, in accordance with its terms;
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(ix) other than the subject matter of subparagraphs
(x) and (xiv), the issue and sale of the Securities and the
performance by the Company and the Guarantor of their
obligations under the Securities, the execution and delivery
of this Agreement, the Indenture and the Registration Rights
Agreement and the consummation by the Company and the
Guarantor of the transactions contemplated hereby and thereby
will not conflict with or constitute or result in a breach or
a default under or violation of any of (i) the terms or
provisions of any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument known to
such counsel to which the Company or the Guarantor is a party
or by which they or any of their properties is known by such
counsel to be bound, (ii) the Certificate of Incorporation or
By-Laws of the Company or the Guarantor, or (iii) any
applicable statute or, to the best of such counsel's
knowledge, any order, rule or regulation of any governmental
agency or body having jurisdiction over the Company, the
Guarantor or any of their respective properties or any
judgment, decree or order of any court to which the Company or
the Guarantor is a named party;
(x) other than the subject matter of paragraph (xi),
to their knowledge, no consent, approval, authorization,
order, license, registration or qualification of or with any
court or governmental agency or body is required for the issue
and sale of the Securities or the consummation of the other
transactions contemplated by this Agreement or the Indenture,
except as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Securities by the Initial Purchaser;
(xi) no registration under the Act of the Securities
is required in connection with the sale of the Securities to
the Initial Purchaser as contemplated by this Agreement and
the Offering Memorandum or in connection with the initial
resale of the Securities by the Initial Purchaser in
accordance with Section 2 (including Annex I) of this
Agreement, and prior to the commencement of the Exchange Offer
(as defined in the Registration Rights Agreement) or the
effectiveness of the Shelf Registration Statement (as defined
in the Registration Rights Agreement), the Indenture is not
required to be qualified under the TIA, in each case assuming
(i) that the purchasers who buy the Securities in the initial
resales are qualified institutional buyers (as defined in Rule
144A under the Act), non-U.S. Persons (as defined in Rule 902
under the Act) or Accredited Investors, (ii) the accuracy of
the Initial Purchaser's representations and those of the
Company and the Guarantor contained in this Agreement
regarding the absence of a general solicitation in connection
with the sale of the Securities to the Initial Purchaser and
the initial resales thereof and (iii) the accuracy of the
representations made by each Accredited Investor who purchases
Securities in the initial resale as set forth in the Offering
Memorandum;
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(xii) the Securities satisfy the requirements set
forth in Rule 144A(d)(3) under the Act;
(xiii) the statements in the Offering Memorandum
under "Business -- Environmental Matters," "Description of
Notes," and "Certain U.S. Federal Income Tax Considerations,"
insofar as such statements constitute a description of the
legal matters, documents or proceedings referred to therein,
present a fair summary of such legal matters, documents or
proceedings;
(xiv) on the basis stated below, no facts have come
to the attention of such counsel that lead such counsel to
believe, except for the financial statements, related
financial statement schedules, and other financial and
statistical information contained in the Offering Memorandum
as to which such counsel expresses no opinion, that the
Offering Memorandum, as of its date of issuance and as amended
or supplemented, if applicable, as of the Closing Date,
contained an untrue statement of a material fact or omitted 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; and
(xv) the Company is not and, after giving effect to
the offering and sale of the Securities to be sold and the
application of the proceeds from such sale (as described in
the Offering Memorandum under the caption "Use of Proceeds")
will not be, an "investment company" as defined in the
Investment Company Act of 1940, as amended.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the federal laws
of the United States, the corporate law of the State of Delaware and
the laws of the State of New York, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (reasonably satisfactory to the Initial Purchaser's
counsel) of other counsel, reasonably acceptable to the Initial
Purchaser's counsel, familiar with the applicable laws; and (B) as to
matters of fact, to the extent such counsel deems proper, on the
representations and warranties made by the Company and the Guarantor
herein, and certificates and statements of public officials and
officers and other representatives of the Company and the Guarantor
(and such counsel has not independently verified or investigated, nor
does such counsel assume any responsibility for, the factual accuracy
or completeness of such representations and warranties or certificates
or of such factual statements). The opinion of such counsel for the
Company shall state that the opinion of any such other counsel upon
which they relied is in form satisfactory to such counsel and, in such
counsel's opinion, the Initial Purchaser and they are justified in
relying thereon. With respect to the matters to be covered in
subparagraph (xiv) above counsel may state that their opinion and
belief is based upon their participation in the preparation of the
Offering Memorandum and any amendment or supplement thereto, and that
since such counsel has not conducted any independent investigation with
regard to the information set forth in the Offering Memorandum and any
amendment or supple-
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ment thereto, such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained therein except with respect to the opinions set
forth in subparagraph (xiii) above.
The opinion of Winthrop, Stimpson, Xxxxxx & Xxxxxxx described
above shall be rendered to the Initial Purchaser at the request of the
Company and shall so state therein.
(f) on the date of the issuance of the Offering Memorandum and
also on the Closing Date, BDO Xxxxxxx, LLP, Coopers & Xxxxxxx L.L.P.
and Xxxx Xxxxx Xxxxxx & Co., P.A. shall have furnished to the Initial
Purchaser letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, containing statements and
information of the type customarily included in accountants "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Offering Memorandum;
(g) the Company and the Guarantor shall have executed and
delivered the Registration Rights Agreement substantially in the form
attached hereto as Annex II;
(h) the sale of common stock to Tekni-Plex Partners L.P., a
limited partnership organized under the laws of the State of Delaware
in the amount of at least $18.2 million shall have occurred; the
Company shall have previously executed the New Credit Facility (as
defined in the Offering Memorandum) in form and substance reasonably
satisfactory to the Initial Purchaser;
(i) the Initial Purchaser shall have received on and as of the
Closing Date an opinion of Xxxxxx Xxxxxx & Xxxxxxx, counsel to the
Initial Purchaser, with respect to the validity of the Indenture and
the Securities, and such other related matters as the Initial Purchaser
may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters; and
(j) on or prior to the Closing Date, the Company shall have
furnished to the Initial Purchaser such further certificates and
documents as the Initial Purchaser shall reasonably request.
7. Each of the Company and the Guarantor, jointly and severally, agrees
to indemnify and hold harmless the Initial Purchaser, each affiliate of the
Initial Purchaser which assists the Initial Purchaser in the distribution of the
Securities, its officers and directors, and each person, if any, who controls
the Initial Purchaser within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including without limitation the legal fees and other
expenses reasonably incurred in connection with any suit, action or proceeding
or any claim asserted) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Offering Memorandum (and any
amendment or supplement thereto if the Company shall have furnished
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any amendments or supplements thereto) or any Preliminary Offering Memorandum,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission (i) made in
reliance upon and in conformity with information relating to the Initial
Purchaser furnished to the Company in writing by the Initial Purchaser expressly
for use therein or (ii) contained in the Preliminary Offering Memorandum if the
Initial Purchaser was required to and failed to send or deliver a copy of the
Offering Memorandum to the person asserting such losses, claims, damages or
liabilities on or prior to the delivery of written confirmation of sale of the
Securities to such person and such Offering Memorandum would have corrected such
untrue statement or omission and it shall have been determined that such losses,
claims, damages or liabilities would not have arisen had the Offering Memorandum
been delivered or sent.
The Initial Purchaser agrees to indemnify and hold harmless each of the
Company, the Guarantor, their respective directors and officers and each person
who controls the Company within the meaning of Section 15 of the Act and Section
20 of the Exchange Act, to the same extent as the foregoing indemnity from the
Company to the Initial Purchaser, but only with reference to information
relating to the Initial Purchaser furnished to the Company in writing by the
Initial Purchaser expressly for use in the Offering Memorandum, any amendment or
supplement thereto, or any preliminary offering memorandum.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed in writing to the contrary, (ii) the Indemnifying Person has
failed within a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding (including
any impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Initial
Purchaser, each affiliate of the Initial Purchaser which assists the Initial
Purchaser in the distribution of the Securities, its officers and directors and
such control persons of Initial Purchaser shall be designated in writing by X.X.
Xxxxxx Securities Inc. and any such separate firm for the
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Company, the Guarantor, their directors, their officers and such control persons
of the Company shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested in writing to the chief legal officer
or, if no chief legal officer exists, to the chief executive officer of the
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding or claim effected without its written consent if (i) such settlement
is entered into more than 60 days after receipt by such Indemnifying Person of
the aforesaid request, (ii) a second such written request shall have been sent
to and received by the chief legal officer or, if no chief legal officer exists,
by the chief executive officer of the Indemnifying Person at least 30 days after
the first such request but at least 15 days prior to the date of such
settlement, and (iii) with respect to such request, such Indemnifying Person
shall not have reimbursed such Indemnified Person for all reasonable fees and
expenses of such counsel prior to the date of such settlement. No Indemnifying
Person shall, without the prior written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person from all liability
on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantor on the one hand and the
Initial Purchaser on the other hand from the offering of the Securities or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Guarantor on the one hand and the Initial Purchaser on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Guarantor
on the one hand and the Initial Purchaser on the other shall be deemed to be in
the same respective proportions as the net proceeds from the offering (before
deducting expenses) received by the Company and the total discounts and
commissions received by the Initial Purchaser, in each case as set forth in the
table on the cover of the Offering Memorandum, bear to the aggregate offering
price of the Securities. The relative fault of the Company and the Guarantor on
the one hand and the Initial Purchaser on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to
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state a material fact relates to information supplied by the Company or the
Guarantor or by the Initial Purchaser and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Guarantor and the Initial Purchaser agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall
the Initial Purchaser be required to contribute any amount in excess of the
amount by which the total price at which the Securities purchased by it were
offered exceeds the amount of any damages that the Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties made as of the date hereof and as of
Closing Date of the Company, the Guarantor and the Initial Purchaser set forth
in this Agreement shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Initial Purchaser or any person controlling the Initial Purchaser
or by or on behalf of the Company, the Guarantor, such Company's officers or
directors or any other person controlling the Company and (iii) acceptance of
and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Initial Purchaser, by notice given
to the Company, if after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange or the National Association of Securities
Dealers, Inc., (ii) trading of any securities of or guaranteed by the Company
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities, or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Initial Purchaser, is material and adverse and which, in the judgment of the
Initial Purchaser,
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makes it impracticable to market the Securities on the terms and in the manner
contemplated in the Offering Memorandum.
9. This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
10. If this Agreement shall be terminated by the Initial Purchaser,
because of any failure or refusal on the part of any of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason any of the Company shall be unable to perform its obligations under
this Agreement or any condition of the Initial Purchaser's obligations cannot be
fulfilled other than solely by reason of a default by the Initial Purchaser in
payment for the Securities on the Closing Date, the Company agrees to reimburse
the Initial Purchaser for all out-of-pocket expenses (including the fees and
expenses of its counsel) reasonably incurred by the Initial Purchaser in
connection with this Agreement or the offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Initial Purchaser, any controlling persons referred to herein
and their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person, firm
or corporation any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. No purchaser of Securities
from the Initial Purchaser shall be deemed to be a successor by reason merely of
such purchase.
12. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Initial Purchaser shall be
given to them at the following address: X.X. Xxxxxx Securities Inc., 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Syndicate Department. Notices to
the Company shall be given to them at the following address: Tekni-Plex, Inc.,
000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000; Attention: Xxxxxxx Xxxxx;
with a copy to Winthrop, Stimson, Xxxxxx & Xxxxxxx, Xxx Xxxxxxx Xxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000; Attention: Xxxxxx X. Xxxx, Esq.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
14. Pursuant to Section 5-1401 of the General Obligations Laws of the
State of New York, this Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
other conflicts of laws provisions.
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22
If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
TEKNI-PLEX, INC.
By: /s/ Xxxxxxx X.X. Xxxxx
------------------------------
Name: Xxxxxxx X.X. Xxxxx
Title: President
DOLCO PACKAGING CORP.
By: /s/ Xxxxxxx X.X. Xxxxx
------------------------------
Name: Xxxxxxx X.X. Xxxxx
Title: President
Accepted: April 1, 1997
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
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23
ANNEX I
(A) In addition to offers pursuant to clauses (B)(1) and (B)(2) of
paragraph 2(ii) of the Agreement, the Initial Purchaser intends to offer and
sell the Securities in accordance with Regulation S under the Act. Accordingly,
the Initial Purchaser agrees that neither it, its affiliates nor any persons
acting on its or their behalf has engaged or will engage in any directed selling
efforts within the meaning of Rule 902 under the Act with respect to the
Securities and it and they have complied and will comply with the offering
restrictions requirement of Regulation S. The Initial Purchaser agrees that, at
or prior to confirmation of sale of Securities (other than a sale pursuant to
and in accordance with paragraph 2(ii) of the Agreement to purchasers described
in clauses (B)(1) and (B)(2) thereof), it will have sent to each distributor,
dealer or person receiving a selling concession, fee or other remuneration that
purchases Securities from it during the restricted period a confirmation or
notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the United States Securities Act of 1933, as amended (the "Act"), and
may not be offered, sold or delivered within the United States or to,
or for the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after the
later of the commencement of the offering and the closing date, except
in either case in accordance with Regulation S (or Rule 144A if
available) under the Act. Terms used above have the meaning given to
them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
The Initial Purchaser agrees that it has not entered and will not enter
into any contractual arrangement with respect to the distribution or delivery of
the Securities in accordance with this paragraph (A), except with its affiliates
or with the prior written consent of the Company.
(B) The Initial Purchaser represents and agrees that (i) it has not
offered or sold, and will not offer or sell, in the United Kingdom by means of
any document, any Securities other than to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their business or which it is reasonable
to expect will so do, or in circumstances which do not otherwise constitute an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995 of Great Britain, (ii) it has complied,
and will comply, with all applicable provisions of the Financial Services Xxx
0000 and any regulation promulgated thereto of Great Britain with respect to
anything done by it in relation to the Securities in, from or otherwise
involving the United Kingdom, and (iii) it has only issued or passed on, and
will only issue or pass on, in the United Kingdom, any document received by it
in connection with the issuance of the Securities to a person who is of a kind
described in Article 11(3) of the Financial Serv-
24
ices Xxx 0000 (Investment Advertisements) (Exemptions) Order 1995 of Great
Britain or is a person to whom such document may otherwise lawfully be issued or
passed on.
(C) The Initial Purchaser agrees that it will not directly or
indirectly offer, sell or deliver any of the Securities or distribute any
offering memorandum, prospectus or other document or information in any
jurisdiction outside the United States except under circumstances that will
result in compliance with the applicable laws thereof, and that it will take at
its own expense whatever action is required to permit its purchase and resale of
the Securities in such jurisdictions. The Initial Purchaser understands that no
action has been taken by the Company to permit a public offering in any
jurisdiction outside the United States where action would be required for such
purposes. The Initial Purchaser agrees not to cause any advertisement of the
Securities to be published in any newspaper or periodical or posted in any
public place and not to issue any circular relating to the Securities in any
jurisdiction outside of the United States. Without prejudice to the generality
of the foregoing, the Initial Purchaser is not authorized to give any
information or to make any representation in connection with the offering or
sale of the Securities other than those contained in the Offering Memorandum.
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