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Exhibit 10.31
XXXXX MATERIAL HANDLING COMPANY
$20,000,000 10-3/4% Senior Notes due 2006
$20,000,000 13% Senior Exchangeable Preferred Stock due 2007
PURCHASE AGREEMENT
July 13, 1998
XXXXXXXXX & COMPANY, INC.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
BEAR, XXXXXXX & CO., INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
XXXXX Material Handling Company, a Delaware corporation (the
"ISSUER"), xxxxxx agrees with each of you as follows:
1. ISSUANCE OF SECURITIES. The Issuer proposes to issue and
sell to the purchasers listed on Schedule A hereto (the "PURCHASERS") (each such
Purchaser in the amount set forth opposite its name on Schedule A hereto)
$20,000,000 aggregate principal amount of its 10-3/4% Series C Senior Notes due
2006 (the "NOTES") and $20,000,000 aggregate liquidation preference of its 13%
Senior Exchangeable Preferred Stock due 2007 (the "SENIOR PREFERRED STOCK" and,
together with the Notes, the "OFFERED SECURITIES"). The Notes will be issued
pursuant to an indenture (the "INDENTURE") to be dated as of July 17, 1998,
between the Issuer and United States Trust Company of New York, as trustee (the
"TRUSTEE"). The shares of Senior Preferred Stock will be issued pursuant to a
certificate of designation of the powers, preferences and relative,
participating, optional and other special rights and qualifications, limitations
and restrictions thereof (the "CERTIFICATE OF DESIGNATION")
The Offered Securities will be offered and sold to the
Purchasers pursuant to an exemption from the registration requirements under the
Securities Act of 1933, as amended
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(the"ACT"). The Issuer has prepared an offering circular, dated July 14, 1998
(the "OFFERING CIRCULAR"), relating to the offer and sale of the Offered
Securities (the "OFFERING").
The Offered Securities are being sold in connection with the
acquisition of the forklift division ("SAMSUNG FORKLIFT") of Samsung Heavy
Industries Co., Ltd. ("SAMSUNG") (the "ACQUISITION") pursuant to an Asset
Purchase Agreement, dated as of June 5, 1998, by and between Samsung and the
Issuer (the "ASSET PURCHASE AGREEMENT").
Upon original issuance thereof, and until such time as the
same is no longer required under the applicable requirements of the Act, the
Offered Securities shall bear the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, 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, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE THAT IS THREE YEARS (OR SUCH SHORTER PERIOD THAT MAY
HEREAFTER BE PROVIDED UNDER RULE 144(K) AS PERMITTING RESALES
BY NON-AFFILIATES OF RESTRICTED SECURITIES WITHOUT
RESTRICTION) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
AND THE LAST DATE ON WHICH XXXXX MATERIAL HANDLING COMPANY
(THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER
OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, 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
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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 IN
OFFSHORE TRANSACTIONS AND WITHOUT DIRECTED SELLING EFFORTS
WITHIN THE MEANINGS OF SUCH TERMS AS DEFINED IN REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT THAT IS PURCHASING THE SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY'S AND THE TRUSTEE'S/TRANSFER AGENT'S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D),
(E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE/TRANSFER AGENT.
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions hereof, the Issuer agrees to sell to each of the
Purchasers, and each of the Purchasers agrees, severally and not jointly, to
purchase from the Issuer, (i) the aggregate principal amount of Notes set forth
opposite such Purchaser's name on Schedule A hereto and (ii) the aggregate
liquidation preference of Senior Preferred Stock set forth opposite such
Purchaser's name on Schedule A hereto. The purchase price for the Notes shall be
100% of the principal amount thereof, plus accrued interest, if any, from May
15, 1998. The purchase price for the Senior Preferred Stock shall be $960 per
share, plus accrued dividends, if any, from the date of issuance.
3. TERMS OF OFFERING. The Purchasers have advised the Issuer
that the Purchasers will make offers to sell (the "EXEMPT RESALES") some or all
of the Offered Securities purchased by the Purchasers hereunder on the terms set
forth in the Offering
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Circular, as amended or supplemented, solely to (i) persons whom the Purchasers
reasonably believe to be "qualified institutional buyers" as defined in Rule
144A under the Act ("QIBs") and (ii) a limited number of institutional
"accredited investors," as defined in Rule 501(a)(1), (2), (3) or (7) under the
Act ("ACCREDITED INVESTORS") (such persons specified in clauses (i) and (ii)
being referred to herein as the "ELIGIBLE PURCHASERS").
Holders of the Notes (including subsequent transferees) will
have the registration rights set forth in the registration rights agreement (the
"NOTES REGISTRATION RIGHTS AGREEMENT") to be executed on and dated as of the
Closing Date (defined below). Holders of the Senior Preferred Stock (including
subsequent transferees) will have the registration rights set forth in the
registration rights agreement (the "PREFERRED STOCK REGISTRATION RIGHTS
AGREEMENT" and, together with the Notes Registration Rights Agreement, the
"REGISTRATION RIGHTS AGREEMENTS"), to be executed on and dated as of the Closing
Date. Pursuant to the Registration Rights Agreements, the Issuer will agree,
among other things, to file with the Securities and Exchange Commission (the
"COMMISSION") (i) a registration statement under the Act (the "EXCHANGE OFFER
REGISTRATION STATEMENT") relating to, among other things, the 10-3/4% Series D
Senior Notes due 2006 of the Issuer (the "EXCHANGE SENIOR NOTES"), and the 13%
Series B Senior Exchangeable Preferred Stock Due 2007 of the Issuer (the
"EXCHANGE SENIOR PREFERRED STOCK" and, together with the Exchange Senior Notes,
the "EXCHANGE SECURITIES") identical in all material respects to the Notes and
the Senior Preferred Stock (except that the Exchange Securities shall have been
registered pursuant to such registration statement) to be offered in exchange
for the Notes and the Senior Preferred Stock (such offer to exchange being
referred to as the "REGISTERED EXCHANGE Offer") and/or (ii) under certain
circumstances, a shelf registration statement pursuant to Rule 415 under the Act
(the "SHELF REGISTRATION STATEMENT") relating to the resale by certain holders
of the Notes and the Senior Preferred Stock. Collectively, the Offered
Securities and the Exchange Securities shall be referred to as the "SECURITIES."
This Agreement, the Indenture, the Certificate of Designation,
the Registration Rights Agreements, the Notes, the Senior Preferred Stock, the
Asset Purchase Agreement and all other documents or instruments executed by the
Issuer or any of its Subsidiaries in connection with the transactions
contemplated hereby and thereby are referred to herein as the "DOCUMENTS." The
transactions contemplated by the Documents, including, without limitation, (a)
the Offering and the use of the proceeds therefrom as described in the Offering
Circular and (b) the Acquisition, are collectively referred to herein as the
"TRANSACTIONS."
4. DELIVERY AND PAYMENT. Delivery to the Purchasers of and
payment for the Offered Securities shall be made at a Closing (the "CLOSING") to
be held at 9:00 a.m., New York time, on July 17, 1998 (the "CLOSING DATE") at
the offices of Dechert Price & Xxxxxx,
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00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Closing Date and the
location of delivery of and the form of payment for the Offered Securities may
be varied by agreement between the Purchasers and the Issuer.
The Issuer shall deliver to the Purchasers (i) one or more
certificates representing the Notes and the Senior Preferred Stock
(collectively, the "GLOBAL SECURITIES"), each in definitive form, registered in
the name of Cede & Co., as nominee of The Depository Trust Company ("DTC"), or
such other names as the Purchasers may request upon at least two business day's
notice to the Issuer, in an amount corresponding to the aggregate principal
amount or liquidation preference, as applicable, of the Notes and the Senior
Preferred Stock sold pursuant to Exempt Resales to QIBs and (ii) one or more
certificates representing the Notes and the Senior Preferred Stock
(collectively, the "INDIVIDUAL SECURITIES"), each in definitive form, registered
in such names and denominations as the Purchasers may so request, in an
aggregate amount corresponding to the aggregate principal amount or liquidation
preference, as applicable, of the Notes and the Senior Preferred Stock sold
pursuant to Exempt Resales to Accredited Investors, in each case against payment
by the Purchasers of the purchase price therefor by immediately available
Federal funds bank wire transfer to such bank account as the Issuer shall
designate at least two business days prior to the Closing. In compensation of
delivery of payment by the Purchasers in same day funds, the Company hereby
acknowledges that the Purchasers will deduct from the purchase price an amount
equal to Xxxxxxxxx and Company, Inc.'s one-day cost of funds with respect
thereto.
The Global Securities and the Individual Securities in
definitive form shall be made available to the Purchasers for inspection at the
New York offices of Dechert Price & Xxxxxx (or such other place as shall be
acceptable to the Purchasers) not later than 9:30 a.m. on the business day
immediately preceding the Closing Date. For purposes of this Section 4,
"business day" means each day other than Saturday or Sunday which is not a day
on which banking institutions in New York are generally authorized or obligated
by law to close.
5. AGREEMENTS OF THE ISSUER. The Issuer hereby agrees with
each of the Purchasers as follows:
(a) The Issuer shall (i) advise the Purchasers
promptly after obtaining knowledge (and, if requested by the
Purchasers, confirm such advice in writing) of (A) the issuance by any
state securities commission of any stop order suspending the
qualification or exemption from qualification of any of the Securities
for offering or sale in any jurisdiction, or the initiation of any
proceeding for such purpose by any state securities commission or other
regulatory authority, or (B) the happening of any event that makes any
statement of a material fact made in the Offering Circular untrue or
that requires the making of any additions to or changes in the Offering
Circular in
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order to make the statements therein, in the light of the circumstances
under which they are made, not misleading; (ii) use its best efforts to
prevent the issuance of any stop order or order suspending the
qualification or exemption from qualification of any of the Securities
under any state securities or Blue Sky laws; and (iii) if at any time
any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of any of the Securities under any such laws, use its
best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) The Issuer shall (i) furnish the Purchasers,
without charge, as many copies of the Offering Circular, and any
amendments or supplements thereto, as the Purchasers may request and
(ii) promptly prepare, upon the Purchasers' request, any amendment or
supplement to the Offering Circular that the Purchasers deem may be
reasonably necessary in connection with Exempt Resales. The Issuer
hereby consents to the use of the Offering Circular, and any amendments
and supplements thereto, by the Purchasers in connection with Exempt
Resales.
(c) The Issuer shall not amend or supplement the
Offering Circular prior to the Closing Date unless the Purchasers shall
previously have been advised thereof and shall not have reasonably
objected thereto within two business days after being furnished a copy
thereof.
(d) So long as either of the Purchasers shall hold
any Securities, (i) if any event shall occur as a result of which, in
the reasonable judgment of the Issuer or the Purchasers, it becomes
necessary or advisable to amend or supplement the Offering Circular in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary to
amend or supplement the Offering Circular to comply with applicable
law, the Issuer shall forthwith prepare an appropriate amendment or
supplement to the Offering Circular (in form and substance reasonably
satisfactory to the Purchasers) so that (A) as so amended or
supplemented the Offering Circular will not include an untrue statement
of 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, and (B) the Offering Circular
will comply with applicable law; and (ii) if it becomes necessary or
advisable to amend or supplement the Offering Circular so that the
Offering Circular will contain all of the information specified in, and
meet the requirements of, Rule 144(A)(d)(4) of the Act, the Issuer
shall forthwith prepare an appropriate amendment or supplement to the
Offering Circular (in form and substance reasonably satisfactory to the
Purchasers)
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so that the Offering Circular, as so amended or supplemented, will
contain the information specified in, and meet the requirements of,
such Rule.
(e) The Issuer shall cooperate with the Purchasers
and the Purchasers' counsel in connection with the qualification of the
Securities under the securities or Blue Sky laws of such jurisdictions
as the Purchasers may reasonably request and continue such
qualification in effect so long as reasonably required for Exempt
Resales; provided, however, that the Issuer shall not be required in
connection therewith to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where it is not now so qualified or to subject itself
to taxation in respect of doing business in any jurisdiction in which
it is not otherwise so subject.
(f) Whether or not any of the Transactions are
consummated or this Agreement is terminated, the Issuer shall pay (i)
all costs, expenses and fees incident to and in connection with: (A)
the preparation, printing and distribution of the Offering Circular, in
each case including all amendments and supplements thereto (including,
without limitation, financial statements and exhibits), and all
preliminary and final Blue Sky memoranda and all other agreements,
memoranda, correspondence and other documents prepared and delivered in
connection herewith, (B) the printing, processing and distribution
(including, without limitation, word processing and duplication costs)
and delivery of, each of the Documents, (C) the issuance and delivery
of the Securities, including the fees of the Trustee and the Registrar
and Transfer Agent and the cost of their respective personnel, (D) the
qualification of the Securities for offer and sale under the securities
or Blue Sky laws of the several states (including, without limitation,
the reasonable fees and disbursements of the Purchasers' counsel
relating to such registration or qualification), (E) furnishing such
copies of the Offering Circular and all amendments and supplements
thereto as may reasonably have been or be requested for use by the
Purchasers, and (F) the preparation of certificates representing the
Securities (including, without limitation, printing and engraving
thereof); (ii) all fees and expenses of the counsel and accountants of
the Issuer; (iii) all expenses and listing fees in connection with the
application for quotation of the Offered Securities in the National
Association of Securities Dealers, Inc. ("NASD") Automated Quotation
System - PORTAL ("PORTAL"); (iv) all fees and expenses (including fees
and expenses of counsel) of the Issuer in connection with approval of
the Offered Securities by DTC for "book-entry" transfer; and (v) all
fees charged by rating agencies in connection with the rating of the
Securities.
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(g) The Issuer shall use the proceeds from the sale
of the Offered Securities in the manner described in the Offering
Circular under the caption "Use of Proceeds."
(h) To the extent it may lawfully do so, the Issuer
shall not insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension, usury or other law,
wherever enacted, now or at any time hereafter in force, that would
prohibit or forgive the payment of all or any portion of the principal
or liquidation preference of or interest or dividends on the
Securities, or that may affect the covenants or the performance of the
Indenture or the Certificate of Designation. To the extent that it may
lawfully do so, the Issuer hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort
to any such law, hinder, delay or impede the execution of any power
granted to the Trustee in the Indenture or the Registrar and Transfer
Agent pursuant to the Certificate of Designation but shall suffer and
permit the execution of every such power as though no such law had been
enacted.
(i) The Issuer shall do and perform all things
required to be done and performed by it under the Documents prior to
and after the Closing Date.
(j) The Issuer shall not, and shall ensure that no
affiliate (as defined in Rule 501(b) of the Act) of the Issuer will,
sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any "security" (as defined in the Act) that would be
integrated with the sale of the Offered Securities in a manner that
would require the registration under the Act of the sale to the
Purchasers or to the Eligible Purchasers of the Offered Securities.
(k) For so long as any of the Securities remain
outstanding and are "restricted securities" within the meaning of Rule
144(a)(3) under the Act, during any period in which the Issuer is not
subject to Section 13 or 15(d) of the Securities Exchange Act of 1934,
as amended (the "EXCHANGE Act"), it shall make available, upon request,
to any owner of the Securities in connection with any sale thereof and
any prospective Eligible Purchaser of such Securities from such owner,
the information required by Rule 144A(d)(4) under the Act.
(l) The Issuer shall comply with all of its
agreements set forth in the representation letter of the Issuer to DTC
relating to the approval of the Securities by DTC for "book-entry"
transfer.
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(m) The Issuer shall use its best efforts to effect
the inclusion of the Offered Securities in PORTAL.
(n) The Issuer shall, so long as the Securities are
outstanding, and whether or not it is required to do so by the rules
and regulations of the Commission, furnish to the Trustee and deliver
or cause to be delivered to the holders of the Securities and each
Purchaser (i) all quarterly and annual financial information that would
be required to be contained in a filing with the Commission on Forms
10-Q and 10-K if the Issuer were required to file such Forms, including
for each a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and, with respect to the annual information
only, a report thereon by the Issuer's independent certified public
accountants and (ii) all reports that would be required to be filed
with the Commission on Form 8-K if the Issuer were required to file
such reports. From and after the time the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, is
declared effective by the Commission, the Issuer will file such
information with the Commission; provided, that the Commission will
accept such filing.
(o) Except in connection with the Registered Exchange
Offer or the filing of the Shelf Registration Statement, as the case
may be, the Issuer shall not, and shall not authorize or knowingly
permit any person acting on its behalf to (i) distribute any offering
material in connection with the offering and sale of the Securities
other than the Offering Circular and any amendments and supplements to
the Offering Circular prepared in compliance with Section 5(c) hereof
or (ii) solicit any offer to buy or offer to sell the Securities by
means of any form of general solicitation or general advertising
(including, without limitation, as such 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.
(p) The Issuer shall not, directly or indirectly,
without the prior consent of the Purchasers, offer, sell, grant any
option to purchase, or otherwise dispose (or announce any offer, sale,
grant of any option to purchase or other disposition) of any debt
securities of the Issuer (other than any private loan, credit or
financing agreement with a bank or similar institution) for a period of
180 days after the date of the Offering Circular, except as
contemplated by the Registration Rights Agreements.
(q) For so long as either of the Purchasers shall
hold any Securities, the Issuer shall promptly notify each Purchaser in
writing if the Issuer or any of its Affiliates becomes a party in
interest or a disqualified person with respect to any
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funded employee benefit plan. The terms "ERISA," "Affiliates," "party
in interest," "disqualified person" and "employee benefit plan" shall
have the meanings as set forth in Section 6(v) hereof. Upon the request
of the Issuer, each Purchaser shall promptly notify the Issuer when
such Purchaser no longer owns any Securities.
6. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The Issuer
represents and warrants to each of the Purchasers that:
(a) The Offering Circular as of its date did not and
as of the Closing Date will not, and each supplement or amendment to
the Offering Circular as of its date 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 under which they were made, not misleading; provided,
that the representation and warranty set forth in this sentence does
not apply to statements contained in the Offering Circular made in
reliance upon and in conformity with information relating to the
Purchasers furnished in writing by or on behalf of the Purchasers
expressly for use therein. No injunction or order has been issued that
would prevent or suspend the issuance or sale of the Securities or the
use of the Offering Circular or any amendment or supplement thereto in
any jurisdiction. The Offering Circular, as of its date contained, and
as of the Closing Date will contain, all of the information specified
in, and meet the requirements of, Rule 144A(d)(4) under the Act. Except
as adequately disclosed in the Offering Circular, to the knowledge of
the Issuer after due inquiry, there are no related party transactions
that would be required to be disclosed in the Offering Circular if the
Offering Circular were a prospectus included in a registration
statement on Form S-1 filed under the Act.
(b) There are no securities of the Issuer registered
under the Exchange Act or listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a United
States automated inter-dealer quotation system.
(c) Each of the Issuer and each Subsidiary (as
defined below) has been duly organized, is validly existing and, in the
case of the Issuer, is in good standing under the laws of its
jurisdiction of organization, and the Issuer and each Subsidiary has
all requisite power and authority to carry on the businesses to be
conducted by it upon consummation of the Acquisition as described in
the Offering Circular and to own, lease and operate the properties and
assets being acquired in the Acquisition. The Issuer and, to the
Issuer's knowledge after due inquiry, each Subsidiary is duly qualified
or licensed to do business and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the
nature of such businesses or
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the ownership or leasing of such properties requires such
qualification, except where the failure to be so qualified could not,
singly or in the aggregate, have a material adverse effect on (i) the
properties, business, prospects, operations, or condition (financial or
otherwise) of the Issuer and the Subsidiaries, taken as a whole or (ii)
the ability of the Issuer to perform its obligations under any of the
Documents (a "MATERIAL ADVERSE EFFECT").
(d) Immediately following the Closing, (i) the only
direct or indirect subsidiaries of the Issuer (collectively, the
"SUBSIDIARIES") will be the corporations identified on Schedule 6(d),
each of which is a Guarantor or Foreign Subsidiary (as defined in the
Indenture), and (ii) except as set forth in Schedule 6(d), the Issuer
will directly or indirectly beneficially own 100% of the outstanding
shares of capital stock of each Subsidiary, free and clear of any Lien
(as defined in the Indenture), except for Liens permitted under the
Indenture, and all of such shares of capital stock will be duly
authorized and validly issued, fully paid and nonassessable and not
issued in violation of, or subject to, any preemptive or similar
rights. There are no outstanding (x) securities convertible into or
exchangeable for any capital stock of the Issuer or any of the
Subsidiaries, (y) options, warrants or other rights to purchase or
subscribe for capital stock of the Issuer or any of the Subsidiaries or
securities convertible into or exchangeable for capital stock of the
Issuer or any of the Subsidiaries, or (z) contracts, commitments,
agreements, understandings, arrangements, calls or claims of any kind
relating to the issuance of any capital stock of the Issuer or any of
the Subsidiaries, any such convertible or exchangeable securities or
any such options, warrants or rights, except for the Registration
Rights Agreements. Except as set forth on Schedule 6(d), immediately
following the Closing, the Issuer will not directly or indirectly own
any capital stock or other equity interest in any other person.
(e) All of the outstanding shares of capital stock of
the Issuer, other than the Senior Preferred Stock (which consists
solely of Common Stock), have been duly authorized and validly issued,
are owned beneficially and of record by CMH Holdings Corporation free
and clear of Liens, are fully paid and nonassessable, and were not
issued in violation of, and are not subject to, any preemptive or
similar rights. The table under the caption "Capitalization" in the
Offering Circular (including the footnotes thereto) adequately
discloses, as of its date, the capitalization of the Issuer and its
Subsidiaries on a consolidated basis, after giving effect to the
Transactions, as defined in the Offering Circular. Except as set forth
in such table, immediately following the Closing, neither the Issuer
nor any of the Subsidiaries shall have any liabilities, absolute,
accrued, contingent or otherwise, other than any such liabilities that
either (x) are reflected in the Historical Financial Statements
(defined below), or
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(y) were incurred subsequent to the date thereof in the ordinary course
of business and could not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(f) Except for this Agreement and the Registration
Rights Agreements, neither the Issuer nor any of the Subsidiaries has
entered into any agreement (i) to register its securities under the Act
or (ii) to purchase or offer to purchase any securities of the Issuer,
any of the Subsidiaries or any of their respective affiliates.
(g) The Issuer has all requisite power and authority
to enter into, deliver and perform its obligations under the Documents
and to consummate the transactions contemplated hereby and thereby. The
Documents (other than the Securities) have been duly and validly
authorized by the Issuer, and this Agreement is, and when executed and
delivered on the Closing Date each Document (other than the Securities)
will be, a legal, valid and binding obligation of the Issuer,
enforceable against the Issuer in accordance with its terms, except
that (i) the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer, fraudulent conveyance or other similar laws relating to or
affecting creditors' rights generally, (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability (regardless of whether in a proceeding in equity or at
law), and (iii) in the case of the Registration Rights Agreements,
rights to indemnity may be limited by state or Federal laws relating to
securities or by policies underlying such laws. On the Closing Date,
the Indenture, the Certificate of Designation, the Offered Securities,
the Registration Rights Agreements and the Asset Purchase Agreement
will conform in all material respects to the description thereof in the
Offering Circular. On the Closing Date, the Indenture will conform in
all material respects to the requirements of the Trust Indenture Act of
1939, as amended (the "TIA"), applicable to an indenture that is
required to be qualified under the TIA.
(h) The Notes have been duly and validly authorized
by the Issuer for issuance and sale to the Purchasers pursuant to this
Agreement and, when executed and authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the Purchasers
in accordance with the terms hereof, will be legal, valid and binding
obligations of the Issuer, enforceable against the Issuer in accordance
with their terms, except that (i) the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer, fraudulent conveyance or other similar
laws relating to or affecting creditors' rights generally and (ii) the
availability of equitable remedies may be limited by equitable
principles of general applicability (regardless of whether in a
proceeding in equity or at law).
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(i) The Exchange Senior Notes have been duly and
validly authorized by the Issuer and, when executed, authenticated and
delivered in accordance with the terms of the Indenture and the
Registration Rights Agreements, will be legal, valid and binding
obligations of the Issuer, enforceable against the Issuer in accordance
with their terms, except that (i) the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer, fraudulent conveyance or other similar
laws relating to or affecting creditors' rights generally and (ii) the
availability of equitable remedies may be limited by equitable
principles of general applicability (regardless of whether in a
proceeding in equity or at law). The Certificate of Designation has
been duly authorized by the Issuer and will be, on or prior to the
Closing Date, filed with the Secretary of State of the State of
Delaware. The issuance and sale of the shares of Senior Preferred Stock
will be, on or prior to the Closing Date, duly authorized by the
Issuer's charter documents and have been duly authorized by the Issuer
and, when issued by the Issuer and paid for by the Purchasers in
accordance with the terms hereof, such shares will be duly and validly
issued, fully paid and nonassessable and free of any preemptive or
similar rights. The certificate of incorporation of the Issuer, by
virtue of the Certificate of Designation, will, as of the Closing Date,
set forth the rights, preferences and provisions of the Senior
Preferred Stock, and the holders thereof will be entitled to the
benefits of the provisions set forth in the Certificate of Designation
as provided therein. The issuance of the shares of Exchange Senior
Preferred Stock will be, on or prior to the Closing Date, duly
authorized by the Issuer's charter documents and have been duly
authorized by the Issuer and, when issued by the Issuer in accordance
with the terms of the Registration Rights Agreements, such shares will
be duly and validly issued, fully paid and nonassessable and free of
any preemptive or similar rights. The certificate of incorporation of
the Issuer, by virtue of the Certificate of Designation, will, as of
the Closing Date, set forth the rights, preferences and provisions of
the Exchange Senior Preferred Stock, and the holders thereof will be
entitled to the benefits of the provisions set forth in the Certificate
of Designation as provided therein. United States Trust Company of New
York has agreed to be the registrar and transfer agent for the Senior
Preferred Stock (the "REGISTRAR AND TRANSFER AGENT").
(j) The 13% Subordinated Notes due 2007 of the Issuer
(the "PREFERRED STOCK EXCHANGE NOTES"), on the date of issuance
thereof, will be duly and validly authorized by the Issuer for issuance
to the holders of shares of Preferred Stock in exchange for such shares
of Preferred Stock pursuant to the Certificate of Designation and, when
executed and authenticated in accordance
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with the terms of the indenture relating to the Preferred Stock
Exchange Notes, and delivered in accordance with the terms of the
Certificate of Designation, will be legal, valid and binding
obligations of the Issuer, enforceable against the Issuer in accordance
with their terms, except that (i) the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer, fraudulent conveyance or other similar
laws relating to or affecting creditors' rights generally and (ii) the
availability of equitable remedies may be limited by equitable
principles of general applicability (regardless of whether in a
proceeding in equity or at law).
(k) Neither the Issuer nor any of the Subsidiaries is
(i) in violation of its respective charter or by-laws (collectively,
"CHARTER DOCUMENTS"), other than violations with respect to Charter
Documents of Subsidiaries that could not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, (ii)
other than violations that could not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, in
violation of any Federal, state, local or foreign statute, law
(including, without limitation, common law) or ordinance, or any
judgment, decree, rule, regulation or order (collectively, "APPLICABLE
LAW") of any government, governmental or regulatory agency or body,
court or arbitrator, domestic or foreign (each, a "GOVERNMENTAL
AUTHORITY"), or (iii) other than breaches or defaults that could not,
singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect, in breach of or default under (with the
passage of time or otherwise) any bond, debenture, note or other
evidence of indebtedness, indenture, mortgage, deed of trust, lease or
any other agreement or instrument to which any such person is a party
or by which any of them or their respective property is bound
(collectively, "APPLICABLE AGREEMENTS").
(l) Neither the execution, delivery or performance of
the Documents by the Issuer, nor the consummation of the Transactions
shall conflict with, violate, constitute a breach of or a default (with
the passage of time or otherwise) under, or result in the imposition of
a Lien on any assets of the Issuer or any of the Subsidiaries (except
pursuant to the Indenture), or result in an acceleration of
indebtedness of the Issuer or any of the Subsidiaries pursuant to (i)
the Charter Documents of the Issuer or any of the Subsidiaries, (ii)
any Applicable Agreement, other than such breaches, violations or
defaults that could not, singly or in the aggregate, result in a
Material Adverse Effect, or (iii) any material Applicable Law.
Immediately after giving effect to the Transactions, no Default or
Event of Default (as defined in the Indenture) will exist.
(m) No permit, authorization, approval, consent,
license or order of, or filing, registration or qualification with, any
Governmental Authority (collectively,
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"PERMITS") and no approval or consent of any other person, is required
in connection with, or as a condition to, the execution, delivery or
performance of any of the Documents by the Issuer or the consummation
of any of the Transactions, other than such Permits, approvals and
consents (i) as have been made or obtained on or prior to the Closing
Date, (ii) as are not required to be made or obtained on or prior to
the Closing Date that will be made or obtained when required, (iii) as
may be required under the rules of the NASD by reason of the action of
the Purchasers, or (iv) those the failure of which to make or obtain
could not, singly or in the aggregate, reasonably be expected to result
in a Material Adverse Effect.
(n) Except as adequately disclosed in the Offering
Circular, there is no action, claim, suit or proceeding (including,
without limitation, an investigation or partial proceeding, such as a
deposition), domestic or foreign (collectively, "PROCEEDINGS"), pending
or, to the knowledge of the Issuer after due inquiry, threatened
against the Issuer, any Subsidiary or, to the knowledge of the Issuer
after due inquiry, any other person, that either (i) seeks to restrain,
enjoin, prevent the consummation of, or otherwise challenge any of the
Documents or any of the Transactions, or (ii) could, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
Neither the Issuer nor any of the Subsidiaries is subject to any
judgment, order, decree, rule or regulation of any Governmental
Authority that could, singly or in the aggregate, have a Material
Adverse Effect (other than any such judgments, orders, decrees, rules
and regulations applicable to the industry generally).
(o) Immediately following the Closing, the Issuer and
each of the Subsidiaries will have such Permits as are necessary to
own, lease and operate the properties and to conduct the businesses
described in the Offering Circular other than those the failure of
which to have could not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect. All such Permits are
in full force and effect. No event has occurred which allows, or after
notice or lapse of time would allow, the imposition of any material
penalty, or the revocation or termination by the issuer thereof, or
that results or will result in any material impairment of the rights of
the holder of any such Permits. To the knowledge of the Issuer after
due inquiry, no issuer is considering limiting, suspending or revoking
any such Permit.
(p) Immediately following the Closing, the Issuer and
the Subsidiaries (i) will have good and marketable title, free and
clear of all Liens (except for Liens permitted under the Indenture), to
all property and assets described in the Offering Circular as being
owned by them and (ii) will enjoy, in all material respects, peaceful
and undisturbed possession under all real property leases to which it
is a party as
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lessee. Immediately following the Closing, all Applicable Agreements
will be in full force and effect and legal, valid and binding
obligations of the Issuer, the Subsidiaries and to the knowledge of the
Issuer after due inquiry, all other parties thereto, and no default by
the Issuer, any of the Subsidiaries, or to the knowledge of the Issuer
after due inquiry, any other person, will have occurred or be
continuing thereunder, other than such defaults that could not, singly
or in the aggregate, have a Material Adverse Effect. Immediately
following the Closing, the Issuer and the Subsidiaries will have
insurance (including self-insurance consistent with prior practice as
adequately disclosed in the Offering Circular) covering their
properties, operations, personnel and businesses against such losses
and risks as they reasonably deem adequate in accordance with customary
industry practice.
(q) All tax returns required to be filed by the
Issuer and the Subsidiaries in any jurisdiction (including foreign
jurisdictions) have been filed and when filed by the Issuer or its
Subsidiaries, as the case may be, were accurate in all material
respects. All taxes, assessments, fees and other charges (including,
without limitation, withholding taxes, penalties and interest) due or
claimed to be due from such entities have been paid, other than those
being contested in good faith by appropriate proceedings, or those that
are currently payable without penalty or interest and, in each case,
for which an adequate reserve or accrual has been established on the
books and records of the Issuer in accordance with generally accepted
accounting principles of the United States, consistently applied
("GAAP") or in respect of which the Issuer has the right to be
indemnified. There is no actual or proposed additional tax assessments
for any fiscal period against the Issuer or any of the Subsidiaries
that could, singly or in the aggregate, have a Material Adverse Effect.
The charges, accruals and reserves on the books of each of the Issuer
and the Subsidiaries in respect of any income and tax liability for any
years not finally determined are adequate to meet any assessments or
re-assessments for additional income tax for any years not finally
determined.
(r) Immediately following the Closing, the Issuer and
each of the Subsidiaries will own, or be licensed under, and have the
right to use, all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names (collectively,
"INTELLECTUAL PROPERTY") currently used in the conduct of the business
as set forth in the Offering Circular. No claims have been asserted in
writing or to the knowledge of the Issuer after due inquiry, otherwise
by any person challenging the use of any such Intellectual Property by
the Issuer or any of the Subsidiaries or questioning the validity or
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effectiveness of any license or agreement related thereto, there is
no valid basis for any such claim (other than any claims that would
not, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect), and the use of such Intellectual Property by
the Issuer and the Subsidiaries will not infringe on the Intellectual
Property rights of any other person.
(s) The financial statements and related notes
contained in the Offering Circular (the "HISTORICAL FINANCIAL
STATEMENTS") present fairly in all material respects the combined
financial position, results of operations and cash flows of the
entities named therein as of the respective dates and for the
respective periods to which they apply and have been prepared in
accordance with GAAP (except as disclosed therein) and the requirements
of Regulation S-X that would be applicable if the Offering Circular
were a prospectus included in a registration statement on Form S-1
filed under the Act.
The unaudited pro forma financial statements and
related notes set forth under the caption "Unaudited Pro Forma Combined
Financial Information" included in the Offering Circular (the "PRO
FORMA FINANCIAL STATEMENTS" and together with the Historical Financial
Statements, the "FINANCIAL STATEMENTS") (i) have been derived from the
Historical Financial Statements and comply with the rules and
guidelines of the Commission with respect to pro forma financial
statements and (ii) in the Issuer's reasonable opinion, the assumptions
used in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions specified
therein and the circumstances referred to therein. Except as adequately
disclosed in the Offering Circular, the summary and selected pro forma
financial data included in the Offering Circular have been derived from
the Pro Forma Financial Statements.
All other financial data included in the Offering
Circular are fairly and accurately presented in all material respects
and are derived from or prepared on a basis consistent with the
Historical Financial Statements and the books and records of the
Issuer, except as otherwise disclosed in the Offering Circular. Price
Waterhouse LLP are independent public accountants under Rule 101 of
AICPA's Code of Professional Conduct and its interpretations and
rulings.
(t) Subsequent to the respective dates as of which
information is given in the Offering Circular, except as adequately
disclosed in the Offering Circular, there has not been any material
adverse change in the properties, business, prospects, operations or
condition (financial or otherwise) of the Issuer and the Subsidiaries
taken as a whole (a "MATERIAL ADVERSE CHANGE"). To the knowledge of the
Issuer after due
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inquiry, there is no event that is reasonably likely to occur, which if
it were to occur, could, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect, except such events that
have been adequately disclosed in the Offering Circular.
(u) Immediately following the Closing, after giving
effect to the Transactions (i) the present fair salable value of the
assets of the Issuer will exceed the amount that will be required to be
paid on or in respect of the then existing debts and other liabilities
(including contingent liabilities) of the Issuer as they become
absolute and matured and (ii) the Issuer will not have an unreasonably
small capital to carry on the businesses proposed to be conducted by
it. The Issuer does not intend to, and does not believe that it will,
incur debts beyond its ability to pay such debts as they mature.
(v) Except as contemplated by this Agreement, neither
the Issuer nor any of its affiliates has (i) taken, directly or
indirectly, any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Issuer to facilitate the sale or resale of any of the Securities or
(ii) except as disclosed in the Offering Circular, (A) sold, bid for,
purchased, or paid anyone any compensation for soliciting purchases of,
any of the Securities or (B) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities of
the Issuer.
(w) No registration under the Act, and no
qualification of the Indenture under the TIA, was or is required for
the sale of the Offered Securities to the Purchasers as contemplated
hereby or for the Exempt Resales, assuming (i) that the Eligible
Purchasers who buy the Offered Securities in the Exempt Resales are
QIBs or institutional Accredited Investors, (ii) the accuracy of the
Purchasers' representations contained herein regarding the absence of
general solicitation in connection with the sale of the Offered
Securities to the Purchasers and the Exempt Resales, and (iii) the
accuracy of the representations made by each Accredited Investor who
purchases the Offered Securities pursuant to an Exempt Resale as set
forth in the letters of representation in the form of Annex A to the
Offering Circular. No form of general solicitation or general
advertising was used by the Issuer or any of its affiliates or any of
their representatives in connection with the offer and sale of any of
the Offered Securities or in connection with Exempt Resales including,
but not limited to, the methods described in Rule 502(c) of Regulation
D under the Act. No securities of the same class as any of the Offered
Securities have been offered, issued or sold by the Issuer or any of
its affiliates within the six-month period immediately prior to the
date hereof.
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(x) Neither the Issuer nor any of its "Affiliates" is
a "party in interest" or a "disqualified person" with respect to any
funded employee benefit plans. No condition exists or event or
transaction has occurred in connection with any employee benefit plan
that could result in the Issuer or any such "Affiliate" incurring any
liability, fine or penalty that could, singly or in the aggregate, have
a Material Adverse Effect. The terms "employee benefit plan" and "party
in interest" shall have the meanings assigned to such terms in Section
3 of the Employee Retirement Income Security Act of 1974, as amended,
or the rules and regulations promulgated thereunder ("ERISA"), the term
"Affiliate" shall have the meaning assigned to such term in Section
407(d)(7) of ERISA, and the term "disqualified person" shall have the
meaning assigned to such term in section 4975 of the Internal Revenue
Code of 1986, as amended, and the rules, regulations and published
interpretations promulgated thereunder (the "CODE").
(y) None of the Transactions will violate or result
in a violation of Section 7 of the Exchange Act (including, without
limitation, Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R.
Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of
Governors of the Federal Reserve System). Neither the Issuer nor any of
the Subsidiaries is, or after giving effect to the Offering and the
other Transactions contemplated by the Documents, will be (i) 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, and the rules and regulations and interpretations
promulgated thereunder or (ii) subject to any Federal or state statute
or regulation limiting its ability to incur or assume indebtedness for
borrowed money.
(z) The Issuer has not dealt with any broker, finder,
commission agent or other person (other than the Purchasers) in
connection with the Transactions and neither the Issuer nor any of the
Subsidiaries is under any obligation to pay any broker's fee or
commission in connection with such transactions (other than commissions
and fees to the Purchasers as set forth in the Offering Circular).
(aa) Except as adequately disclosed in the Offering
Circular, there is (i) no unfair labor practice complaint or other
proceeding pending or, to the knowledge of the Issuer after due
inquiry, threatened against the Issuer or any of the Subsidiaries
before the National Labor Relations Board or any state, local or
foreign labor relations board or any industrial tribunal, and no
grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is so pending or threatened, (ii) no
strike, labor dispute, slowdown or stoppage pending or, to the
knowledge of the Issuer after due inquiry, threatened against the
Issuer or any of the Subsidiaries, and (iii) no
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union representation question existing with respect to the employees of
the Issuer or any of the Subsidiaries, and, to the Issuer's knowledge
after due inquiry, no union organizing activities are taking place,
that, in the case of each of such clauses (i), (ii) or (iii) could,
singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(bb) Except as adequately disclosed in the Offering
Circular or as otherwise could not reasonably be likely to, singly or
in the aggregate, have a Material Adverse Effect:
(1) no real property or facility to be
owned, used, operated, leased or managed by the Issuer or any
of the Subsidiaries upon consummation of the Closing (the
"REAL PROPERTY") is listed or proposed for listing on the
National Priorities List or the Comprehensive Environmental
Response, Compensation, and Liability Information System, both
promulgated under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"),
or on any other state or local list established pursuant to
any Environmental Law, and neither the Issuer nor any of the
Subsidiaries has received any notification of potential or
actual liability or request for information under CERCLA or
any comparable state or local law;
(2) no underground storage tank, or related
piping, is located on any of the Real Property;
(3) there have been no releases (i.e., any
past or present releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing or dumping, on-site or, to the knowledge
of the Issuer after due inquiry, off-site) of Hazardous
Materials (as defined below) by the Issuer, any of the
Subsidiaries or to the knowledge of the Issuer after due
inquiry, any person or entity whose liability for any such
release of Hazardous Materials, the Issuer or any of the
Subsidiaries has retained or assumed either contractually or
by operation of law at, on, under, or migrating from or into
any of the Real Property;
(4) to the knowledge of the Issuer after due
inquiry, no person or entity whose liability the Issuer or any
of the Subsidiaries has retained or assumed either
contractually or by operation of law (a "THIRD PARTY"), has
any liability, absolute or contingent, under any Environmental
Law, which has been retained or assumed by the Issuer or any
of the Subsidiaries; there is no civil, criminal or
administrative Proceeding, hearing, notice of violation or
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deficiency, notice or demand letter pending or threatened
against the Issuer or any of the Subsidiaries or, to the
knowledge of the Issuer after due inquiry, any Third Party
under any Environmental Law; and
(5) there are no events, activities, or
actions by the Issuer or any of the Subsidiaries or conditions
of any of the Real Property, that are reasonably likely to
prevent compliance by the Issuer or any of the Subsidiaries
with any Environmental Law, or that are reasonably likely to
give rise to any liability under any Environmental Laws.
"ENVIRONMENTAL LAWS" means all Applicable
Laws relating to pollution or protection of human health or
the environment, including, without limitation, laws relating
to (1) emissions, discharges, releases or threatened releases
of pollutants, contaminants, chemicals, or industrial, toxic
or hazardous constituents, substances or wastes, including,
without limitation, asbestos or asbestos-containing materials,
polychlorinated biphenyls, petroleum or any constituents
relating to or arising out of any oil production activities,
including crude oil or any fraction thereof, or any petroleum
product or other wastes, chemicals or substances regulated by
any Environmental Law (collectively referred to as "HAZARDOUS
MATERIALS"), into the environment (including, without
limitation, ambient air, surface water, ground water, land
surface or subsurface strata), (2) the manufacture,
processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of Hazardous Materials, and
(3) underground storage tanks, and related piping, and
emissions, discharges, releases or threatened releases
therefrom.
(cc) No representation or warranty made by the
Issuer, or to the knowledge of the Issuer after due inquiry, any other
person in any of the Documents, was or will be, when made, inaccurate,
untrue or incorrect in any material respect.
7 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each
Purchaser, severally and not jointly, represents and warrants with respect to
itself that:
(a) It is a QIB.
(b) It (i) is not acquiring the Offered Securities
with a view to any distribution thereof that would violate the Act or
the securities laws of any state of the United States or any other
applicable jurisdiction and (ii) will be soliciting offers for the
Offered Securities only from, and will be reoffering and reselling the
Offered Securities only to (A) persons in the United States whom it
reasonably believes to be
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QIBs in reliance on the exemption from the registration requirements of
the Act provided by and in transactions meeting the requirements of
Rule 144A, and (B) a limited number of institutional Accredited
Investors that execute and deliver to the Issuer and the Purchasers a
letter containing certain representations and agreements in the form
attached as Annex A to the Offering Circular.
(c) No form of general solicitation or general
advertising in violation of the Securities Act has been or will be used
by such Purchaser or any of its representatives in connection with the
offer and sale of any of the Offered Securities.
(d) In connection with the Exempt Resales, it will
solicit offers to buy the Offered Securities only from, and will offer
and sell the Offered Securities only to, Eligible Purchasers who, in
purchasing such Offered Securities, will be deemed to have represented
and agreed to the matters set forth under the caption "Notice to
Investors" in the Offering Circular.
(e) It has all requisite power and authority to enter
into, deliver and perform its obligations under this Agreement and the
Registration Rights Agreements and each of this Agreement and the
Registration Rights Agreements has been duly and validly authorized by
it.
8 INDEMNIFICATION.
(a) The Issuer shall, without limitation as to time,
indemnify and hold harmless each Purchaser and each person, if any, who
controls (within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act) either Purchaser (any of such persons being
hereinafter referred to as a "CONTROLLING PERSON"), and the respective
officers, directors, partners, employees, representatives and agents of
each Purchaser and any such controlling person, to the fullest extent
lawful, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, costs of preparation
and reasonable attorneys' fees) and expenses (including, without
limitation, reasonable costs and expenses incurred in connection with
investigating, preparing, pursuing or defending against any of the
foregoing) (collectively, "LOSSES"), as incurred, directly or
indirectly caused by, related to, based upon, arising out of or in
connection with (i) any untrue statement or alleged untrue statement of
a material fact contained in the Offering Circular (or any amendment or
supplement thereto), or 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 to the extent any such
untrue statement is based upon and made in conformity with information
furnished
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in writing by such Purchaser expressly for use in the Offering Circular
or (ii) the advice or services rendered to the Issuer pursuant to this
Agreement or in connection with the Transactions or any indemnified
person's actions or inactions in connection with any such advice or
services; provided, that the Issuer shall not be liable to any
indemnified party for any Losses that arise solely from the gross
negligence or willful misconduct of such indemnified party. The Issuer
shall notify the Purchasers promptly of the institution, threat or
assertion of any Proceeding of which the Issuer or any Subsidiary is
aware in connection with the matters addressed by this Agreement which
involves the Issuer, any of the Subsidiaries or any of the indemnified
parties; provided, that the failure to so notify the Purchasers shall
not be actionable hereunder except to the extent (but only to the
extent) that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal) that either
Purchaser has been prejudiced materially by such failure. In no event
shall the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to local counsel) for all
indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the
same set of allegations or circumstances. The counsel with respect to
which fees and expenses shall be so reimbursed shall be designated in
writing by Xxxxxxxxx & Company, Inc. in the case of parties indemnified
pursuant to Section 8(a) and by the Issuer in the case of parties
indemnified pursuant to Section 8(c).
(b) If any Proceeding shall be brought or asserted
against any person entitled to indemnification hereunder (an
"INDEMNIFIED PARTY"), such Indemnified Party shall give prompt written
notice to the indemnifying party; provided, that the failure to so
notify the indemnifying party shall not relieve the indemnifying party
from any obligation or liability except to the extent (but only to the
extent) that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal) that the
indemnifying party has been prejudiced materially by such failure. No
indemnifying party shall be liable for any settlement of any Proceeding
effected without its prior written consent, which consent shall not be
unreasonably withheld.
Without the consent of the Purchasers, which consent
shall not be unreasonably withheld, neither the Issuer nor any of its
Subsidiaries shall consent to entry of any judgment in or enter into
any settlement of any pending or threatened Proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not any Indemnified Party is a party thereto) unless such judgment
or settlement includes as an unconditional term thereof the giving by
the claimant or plaintiff to each Indemnified Party of a release, in
form and substance
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satisfactory to the Purchasers, from all Losses that may arise from
such Proceeding or the subject matter thereof.
(c) Each of the Purchasers agrees, severally and not
jointly, to indemnify and hold harmless the Issuer and each person, if
any, who controls (within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act) the Issuer (any of such persons
being hereinafter referred to as a "CONTROLLING PERSON"), and the
officers, directors, partners, employees, representatives and agents of
the Issuer and any such controlling person to the same extent as the
foregoing indemnity from the Issuer to each of the Indemnified Parties,
but only with respect to claims and actions based on information
relating to such Purchaser in the Offering Circular that is made in
reliance on and in conformity with information furnished in writing by
such Purchaser expressly for use in the Offering Circular.
The Issuer hereby acknowledges that the statements
relating to the Purchasers contained in the third and fourth paragraphs
under the "Plan of Distribution" section of the Offering Circular
constitute the only information furnished in writing by any of the
Purchasers to the Issuer for all purposes hereof.
(d) If the indemnification provided for in this
Section 8 is unavailable to an Indemnified Party or is insufficient to
hold such Indemnified Party harmless for any Losses in respect of which
this Section 8 would otherwise apply by its terms (other than by reason
of exceptions provided in this Section 8), then each indemnifying
party, in lieu of indemnifying such Indemnified Party, shall contribute
to the amount paid or payable by such Indemnified Party as a result of
such Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Issuer, on the one hand, and the
Purchasers, on the other hand, from the offering of the Offered
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 Issuer, on the one hand, and
the Purchasers, on the other hand, in connection with the actions,
statements or omissions that resulted in such Losses, as well as any
other relevant equitable considerations. The relative benefits received
by the Issuer, on the one hand, and the Purchasers, on the other hand,
shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Issuer,
and the total discounts and commissions received by the Purchasers,
bear to the total price of the Offered Securities in Exempt Resales in
each case as set forth in the table on the cover page of the Offering
Circular. The relative fault of the Issuer, on the one hand, and the
Purchasers, on the other hand, shall be determined by reference to,
among other things, whether any untrue or alleged untrue statement of a
material fact or omission or alleged
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omission to state a material fact relates to information supplied by
the Issuer, on the one hand, or the 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 an Indemnified Party as a result of any
Losses shall be deemed to include any legal or other fees or expenses
incurred by such party in connection with any Proceeding, to the extent
such party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section 8 was available to such
party.
Each party hereto agrees that it would not be just
and equitable if contribution pursuant to this Section 8(d) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
in the immediately preceding paragraph. Notwithstanding the provisions
of this Section 8(d), the Purchasers shall not be required to
contribute, in the aggregate, any amount in excess of the amount by
which the total discounts and commissions received by them with respect
to the Offered Securities exceeds the amount of any damages that the
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.
(e) The indemnity and contribution agreements
contained in this Section 8 are in addition to any liability that any
party hereto may otherwise have to the Indemnified Parties.
9 CONDITIONS.
(a) The obligation of the Purchasers to purchase the
Offered Securities under this Agreement is subject to the satisfaction
or waiver of each of the following conditions:
(i) All the representations and warranties
of the Issuer in this Agreement shall be true and correct in
all material respects (other than representations and
warranties with a materiality qualifier, which shall be true
and correct as written) at and as of the Closing Date after
giving effect to the Transactions with the same force and
effect as if made on and as of such date. On or prior to the
Closing Date, the Issuer shall have performed or complied in
all material respects with all of the agreements and satisfied
in all material respects all conditions on its part
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to be performed, complied with or satisfied pursuant to the
Documents; and nothing shall have come to the attention of the
Issuer to lead it to believe that any other party to the
Documents (other than the Purchasers) has not performed or
complied in all material respects with all of the agreements
and satisfied in all material respects all conditions on their
respective parts to be performed, complied with or satisfied
pursuant to the Documents.
(ii) The Offering Circular shall have been
printed and copies made available to the Purchasers not later
than 12:00 noon, New York City time, on the first business day
following the date of this Agreement or at such later date and
time as the Purchasers may approve.
(iii) No injunction, restraining order or
order of any nature by a Governmental Authority shall have
been issued as of the Closing Date that would prevent or
interfere with the consummation of any of the Transactions;
and no stop order suspending the qualification or exemption
from qualification of any of the Offered Securities in any
jurisdiction shall have been issued and no Proceeding for that
purpose shall have been commenced or be pending or
contemplated.
(iv) No action shall have been taken and no
Applicable Law shall have been enacted, adopted or issued that
would, as of the Closing Date, prevent the consummation of any
of the Transactions. No Proceeding shall be pending or
threatened other than Proceedings that (A) if adversely
determined could not, singly or in the aggregate, adversely
affect the issuance or marketability of the Offered Securities
and (B) could not reasonably be expected to have a Material
Adverse Effect.
(v) Since the date as of which information
is given in the Offering Circular, there shall not have been
any Material Adverse Change.
(vi) The Securities shall have (A) been
designated PORTAL securities in accordance with the rules and
regulations adopted by the NASD relating to trading in the
PORTAL market, and (B) received a rating of B+ and B1 from
Standard & Poor's Corporation and Xxxxx'x Investors Services,
Inc., respectively, which ratings shall not have been altered.
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(vii) The Purchasers shall have received on
the Closing Date (A) certificates dated the Closing Date,
signed by (1) the Chief Executive Officer and (2) the
principal financial or accounting officer of the Issuer, on
behalf of the Issuer, (x) confirming the matters set forth in
paragraphs (i) through (v) of this Section 9(a) and (y)
certifying as to such other matters as the Purchasers may
reasonably request, (B) a certificate, dated the Closing Date,
signed by the Secretary of the Issuer, certifying such matters
as the Purchasers may reasonably request, and (C) a
certificate, dated the Closing Date, signed by the principal
financial or accounting officer of the Issuer substantially in
the form previously approved by the Purchasers.
(viii) The Purchasers shall have received,
on the Closing Date, an opinion and a letter (each reasonably
satisfactory in form and substance to the Purchasers and
counsel to the Purchasers), dated the Closing Date, of Dechert
Price & Xxxxxx, special counsel to the Issuer, substantially
in the form of Exhibits A-1 and A-2 hereto.
(ix) The Purchasers shall have received on
the Closing Date an opinion, dated the Closing Date, of
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, in form and
substance reasonably satisfactory to the Purchasers covering
such matters as are customarily covered in such opinions.
(x) The Purchasers and the Issuer shall have
received from Price Waterhouse LLP (i) a customary comfort
letter, dated the date of the Offering Circular, in form and
substance reasonably satisfactory to the Purchasers, with
respect to the financial statements and certain financial
information contained in the Offering Circular, and (ii) a
customary comfort letter, dated the Closing Date, in form and
substance reasonably satisfactory to the Purchasers, to the
effect that they reaffirm the statements made in the letter
furnished pursuant to clause (i), except that the specified
date referred to shall be a date not more than five days prior
to the Closing Date.
(xi) The Documents shall have been executed
and delivered by all parties thereto and the Purchasers shall
have received a fully executed original of each Document.
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(xii) On or prior to the Closing Date, the
Transactions shall have been duly consummated; provided, that
the Acquisition shall be deemed to have been consummated if
the only remaining step required for such consummation is the
payment of the purchase price therefor. The Purchasers shall
have received copies of all opinions, certificates, letters
and other documents delivered under or in connection with the
Transactions, including without limitation the Asset Purchase
Agreement, and letters to the effect that the Purchasers may
rely on such opinions, as if addressed to the Purchasers.
(xiii) Counsel to the Purchasers shall have
been furnished with such documents as they may reasonably
require for the purpose of enabling them to review or pass
upon the matters referred to in this Section 9 and in order to
evidence the accuracy, completeness or satisfaction in all
material respects of any of the representations, warranties or
conditions herein contained.
(b) The obligation of the Issuer to sell the Offered
Securities under this Agreement is subject to the satisfaction or
waiver of each of the following conditions:
(i) The Purchasers shall have delivered
payment to the Issuer for the Offered Securities pursuant to
Sections 2 and 4 of this Agreement.
(ii) All of the representations and
warranties of the Purchasers in this Agreement shall be true
and correct in all material respects at and as of the Closing
Date, with the same force and effect as if made on and as of
such date. On or prior to the Closing Date, the Purchasers
shall have performed or complied with all of the agreements
and satisfied all conditions on their part to be performed,
complied with or satisfied pursuant to this Agreement.
(iii) No injunction, restraining order or
order of any nature by a Governmental Authority shall have
been issued as of the Closing Date that would prevent or
interfere with the issuance and sale of the Offered
Securities; and no stop order suspending the qualification or
exemption from qualification of any of the Offered Securities
in any jurisdiction shall have been issued and no Proceeding
for that purpose shall have been commenced or be pending or
contemplated as of the Closing Date. No action shall have been
taken and no Applicable Law
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shall have been enacted, adopted or issued that would, as of
the Closing Date, prevent the issuance or sale of the Offered
Securities.
10 TERMINATION. The Purchasers may terminate this Agreement at
any time prior to the Closing Date by written notice to the Issuer if any of the
following has occurred:
(a) since the date as of which information is given
in the Offering Circular, any material adverse effect or development
involving a prospective adverse effect on the properties, business,
prospects, operations or condition (financial or otherwise), of the
Issuer or any Subsidiary, whether or not arising in the ordinary course
of business, that could, in the Purchasers' judgment, (i) make it
impracticable or inadvisable to proceed with the offering or delivery
of the Offered Securities on the terms and in the manner contemplated
in the Offering Circular or (ii) materially impair the investment
quality of any of the Securities;
(b) the failure of the Issuer to satisfy the
conditions contained in Section 9(a) hereof on or prior to the third
business day following the date of this Agreement;
(c) any outbreak or escalation of hostilities or
other national or international calamity or crisis or material adverse
change in economic conditions in or the financial markets of the United
States, if the effect of such outbreak, escalation, calamity, crisis or
material adverse change in the economic conditions in or in the
financial markets of the United States could make it, in the
Purchasers' judgment, impracticable or inadvisable to market or proceed
with the offering or delivery of the Offered Securities on the terms
and in the manner contemplated in the Offering Circular or to enforce
contracts for the sale of any of the Offered Securities;
(d) the suspension or limitation of trading generally
in securities on the New York Stock Exchange, the American Stock
Exchange or the NASDAQ National Market or any setting of limitations on
prices for securities on any such exchange or NASDAQ National Market;
(e) any securities of the Issuer shall have been
downgraded or placed on any "watch list" for possible downgrading by
any "nationally recognized statistical rating organization," as such
term is defined for purposes of Rule 431(g)(2) under the Act; or
(f) the declaration of a banking moratorium by any
Governmental Authority; or the taking of any action by any Governmental
Authority after the date
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hereof in respect of its monetary or fiscal affairs that in the
Purchasers' opinion could have a material adverse effect on the
financial markets in the United States.
If this Agreement shall be terminated by the Purchasers
pursuant to clause (b) of this Section 10 or because of the failure or refusal
on the part of the Issuer to comply with the terms or to fulfill any of the
conditions of this Agreement, the Issuer shall promptly reimburse the Purchasers
for all reasonable out-or-pocket expenses incurred by the Purchasers in
connection with this Agreement. Without limiting the foregoing, notwithstanding
any termination of this Agreement, the Issuer shall be liable for all expenses
that it has agreed to pay (i) pursuant to Section 5(f) hereof and (ii) pursuant
to Section 8 hereof.
11 DEFAULT BY PURCHASER. If any of the Purchasers shall fail
or refuse to purchase the Offered Securities that it has agreed to purchase
hereunder on the Closing Date and arrangements satisfactory to the other
Purchaser and the Issuer for the purchase of such Offered Securities are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of the non-defaulting Purchaser or the Issuer, except as
otherwise provided in Section 10 hereof. Nothing herein shall relieve a
defaulting Purchaser from liability for its default.
12 MISCELLANEOUS.
(a) Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Issuer, 000
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Chief Executive
Officer, with a copy to Dechert Price & Xxxxxx, 4000 Bell Atlantic
Tower, 0000 Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000,
Attention: Xxxxxxxxxxx X. Xxxxxx and (ii) if to the Purchasers, to
Xxxxxxxxx & Company, Inc., 00000 Xxxxx Xxxxxx Xxxxxxxxx, 00xx Xxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxx, Esq., with a
copy to (a) Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxx Xxxxxx, and (b) Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, 000 X. Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx (provided, that any
notice pursuant to Section 8 hereof will be mailed, delivered,
telegraphed or telecopied and confirmed to the party to be notified and
its counsel), or in any case to such other address as the person to be
notified may have requested in writing.
(b) This Agreement has been and is made solely for
the benefit of and shall be binding upon the Issuer, the Purchasers
and, to the extent provided in Section 8 hereof, the controlling
persons, officers, directors, partners, employees, representatives and
agents referred to in Section 8 and their respective heirs, executors,
administrators, successors and assigns, all as and to the extent
provided in this Agreement, and no other person shall acquire or have
any right under or by virtue of this Agreement. The
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term "SUCCESSORS AND ASSIGNS" shall not include a purchaser of any of
the Offered Securities from the Purchasers merely because of such
purchase. Notwithstanding the foregoing, it is expressly understood and
agreed that each purchaser who purchases Offered Securities from either
Purchaser is intended to be a beneficiary of the Issuer's covenants
contained in the Registration Rights Agreements to the same extent as
if the Securities were sold and those covenants were made directly to
such purchaser by the Issuer, and each such purchaser shall have the
right to take action against the Issuer to enforce, and obtain damages
for any breach of, those covenants.
(c) THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED
AND THE RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW. THE ISSUER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE ISSUER
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, TRIAL BY JURY, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. THE ISSUER IRREVOCABLY CONSENTS, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE ISSUER AT THE ADDRESS SET FORTH HEREIN,
SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF ANY OF THE PURCHASERS TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS
OR OTHERWISE PROCEED AGAINST THE ISSUER IN ANY OTHER JURISDICTION.
(d) This Agreement may be signed in various
counterparts which together shall constitute one and the same
instrument.
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(e) The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(f) If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(g) This Agreement may be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may be given; provided, that the same are in writing and signed
by each of the signatories hereto.
(h) The indemnities, contribution and expense
reimbursement provisions set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will
survive delivery and payment for the Offered Securities, regardless of
(i) any investigation, or statement as to the results thereof, made by
or on behalf of any party hereto, (ii) acceptance of the Offered
Securities, and payment for them hereunder, and (iii) any termination
of this Agreement.
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Please confirm that the foregoing correctly sets forth the
agreement between the Issuer and the Purchasers.
Very truly yours,
XXXXX MATERIAL HANDLING COMPANY
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President Finance
Accepted and Agreed to:
XXXXXXXXX & COMPANY, INC.
By: /s/ X. Xxxxx Xxxxxxx
------------------------------------
Name: X. Xxxxx Xxxxxxx
Title: Managing Director
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Managing Director
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EXHIBIT A
[ATTACH DECHERT PRICE & XXXXXX OPINION AS A-1 AND 10b-5
LETTER AS A-2]
A-1
35
SCHEDULE A
Principal Amount of Liquidation Preference of
Purchaser Notes Senior Preferred Stock
--------- ----- ----------------------
Xxxxxxxxx & Company, Inc. $ 12,000,000 $ 12,000,000
Bear, Xxxxxxx & Co. Inc. 8,000,000 8,000,000
------------- ------------
Total $ 20,000,000 $ 20,000,000
1
