Exhibit 4.3
EXECUTION COPY
DIAMOND TRIUMPH AUTO GLASS, INC.
$100,000,000
9 1/4% SENIOR NOTES DUE 2008
NOTE PURCHASE AGREEMENT
MARCH 26, 1998
First Union Capital Markets
BT Alex. Xxxxx Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
c/o First Union Capital Markets
000 Xxxxx Xxxxxxx Xxxxxx, XX-00
Xxxxxxxxx, XX 00000-0000
Ladies and Gentlemen:
Diamond Triumph Auto Glass, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell (the "Initial Placement") to First Union
Capital Markets, a division of Wheat First Securities, Inc., BT Alex. Xxxxx
Incorporated and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
(collectively, the "Initial Purchasers"), $100,000,000 principal amount of its 9
1/4% Senior Notes Due 2008 (the "Notes"). The Notes are to be issued under an
indenture (the "Indenture") to be dated as of the Closing Date (as defined
below) between the Company and State Street Bank and Trust Company, as trustee
(the "Trustee"). The Initial Placement is to occur concurrently with, and is
conditioned upon, (i) the consummation of a recapitalization of the Company
pursuant to a Second Amended and Restated Stock Purchase and Sale Agreement,
dated as of January 15, 1998 (the "Stock Purchase Agreement") among the Company,
Xxxxxxx Xxxxxx and Xxxxxxx Xxxxx (together, the "Company Principals"), Green
Equity Investors II, L.P. ("GEI") and certain affiliated entities of the Company
(the "Affiliated Companies"), whereby (a) the Company will declare and pay a
dividend of 3,500 shares of its preferred stock to each of the Company
Principals, (b) the Company Principals shall transfer all of the issued and
outstanding shares of certain of the Affiliated Companies to the Company and in
connection therewith the Company will issue shares of its common stock (the
"Stock Purchase Shares") to the Company Principals, (c) certain of the
Affiliated Companies will be merged with and into the Company, (d) GEI will
purchase (I) 770,000 shares of the Company's common stock, for aggregate
consideration of $15.4 million, and (II) 28,000 shares of the Company's
preferred stock for aggregate consideration of $28.0 million, (e) certain
members of the Company's management will purchase an aggregate of 30,000 shares
of the Company's common stock for aggregate consideration of $600,000, and (f)
the Company will redeem from the Company principals all of the Stock Purchase
Shares and certain other shares of common stock owned by them for cash; each of
the transactions described in clauses (a) through (f) above are collectively
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referred to herein as the "Recapitalization," and (ii) the initial borrowing of
approximately $14.4 million under a credit facility, to be executed on or prior
to the date on which the Notes are issued (the "Bank Facility") among the
Company, the lenders named therein and Bankers Trust Company as Administrative
Agent. This Agreement, the registration rights agreement, to be dated the
Closing Date, between the Initial Purchasers and the Company (the "Registration
Rights Agreement"), the Stock Purchase Agreement, the Notes and the Indenture
are hereinafter collectively referred to as the "Transaction Documents." The
Initial Placement, the offer and resale of the Notes by the Initial Purchasers
in accordance with this Agreement, the Recapitalization and the entering into by
the Company of the Bank Facility and the initial borrowing thereunder are
hereinafter referred to as the "Transactions."
The sale of the Notes to the Initial Purchasers will be made
without registration of the Notes under the Securities Act of 1933, as amended
(the "Securities Act"), in reliance upon certain exemptions from the
registration requirements of the Securities Act. You have advised the Company
that you will offer and sell the Notes purchased by you hereunder in accordance
with Section 4 hereof as soon as you deem advisable.
In connection with the sale of the Notes, the Company has
prepared a preliminary offering memorandum, dated March 10, 1998 (the
"Preliminary Memorandum"), and a final offering memorandum, dated March 26, 1998
(the "Final Memorandum"). Each of the Preliminary Memorandum and the Final
Memorandum sets forth certain information concerning the Company, the
Transaction Documents and the Transactions. The Company hereby confirms that it
has authorized the use of the Preliminary Memorandum and the Final Memorandum,
and any amendment or supplement thereto, in connection with the offer and sale
of the Notes by the Initial Purchasers. Unless stated to the contrary, all
references herein to the Final Memorandum are to the Final Memorandum at the
Execution Time (as defined below) and are not meant to include any amendment or
supplement, or any information incorporated by reference therein, subsequent to
the Execution Time.
As used herein, "Material Adverse Effect" means (i) a material
adverse effect upon the business, operations, properties, assets, condition
(financial or otherwise) or prospects of the Company whether before or after
giving effect to the Transactions or (ii) a material impairment of the ability
of the Company to execute, deliver or perform any of its obligations under, or
the material impairment of the ability of the Trustee and the holders of the
Notes (the "Holders") to enforce any obligations under, any of the Transaction
Documents. Capitalized terms used herein but not defined have the meaning
ascribed to them in the Final Memorandum.
1. The Company's Representations and Warranties. The Company
represents and warrants to the Initial Purchasers the following:
(a) The Preliminary Memorandum, at the date thereof, did not
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Final
Memorandum, at the date hereof, does not and at the Closing Date will
not (and any amendment or supplement thereto, at the date thereof and
at the Closing Date, will not), contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under
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which they were made, not misleading; provided, however, that the
Company makes no representation or warranty as to any statements made
in or omissions from the Preliminary Memorandum or the Final Memorandum
(or any amendment or supplement thereto) in reliance upon and in
conformity with information relating to any of the Initial Purchasers
furnished to the Company in writing by or on behalf of any of the
Initial Purchasers, expressly for use therein.
(b) Except as disclosed in the Preliminary Memorandum or the
Final Memorandum, no holder of securities of the Company will be
entitled to have such securities registered under any registration
statement required to be filed by the Company.
(c) None of the Company or any of its Affiliates (as defined
in Rule 501(b) of Regulation D under the Securities Act ("Regulation
D")), nor any person acting on its or their behalf (other than the
Initial Purchasers or any of their Affiliates, as to whom the Company
makes no representation or warranty) has, directly or indirectly:
(i) made offers or sales of any security, or
solicited offers to buy any security, which is or will be
integrated with the sale of the Notes in a manner that would
require the registration of the Notes under the Securities
Act;
(ii) engaged in any form of general solicitation or
general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Notes;
(iii) taken any action designed to cause or result
in, or that has constituted or that might reasonably be
expected to constitute, stabilization or manipulation of the
price of the Notes;
(iv) except as disclosed in the Preliminary
Memorandum or the Final Memorandum, paid or agreed to pay to
any person any compensation for soliciting another to purchase
any of the Notes;
(v) engaged in any directed selling efforts (as that
term is defined in Regulation S under the Securities Act
("Regulation S")) with respect to the Notes, and each of the
Company and its Affiliates and any person acting on its or
their behalf (other than the Initial Purchasers or any of
their Affiliates, as to whom the Company makes no
representation) has complied with the offering restrictions
requirement of Regulation S.
(d) The Notes satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(e) Assuming the accuracy of your representations contained in
Section 4 hereof and your compliance with your agreements therein set
forth, it is not necessary in connection with the offer, sale and
delivery of the Notes in the manner contemplated by this Agreement and
the Final Memorandum to register the Notes under the Securities Act
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or to qualify the Indenture under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
(f) The Company is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation. The Company has the corporate power and authority to own
its properties and to carry on its business as now conducted and as
proposed to be conducted and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction wherein it owns or leases material properties or conducts
material business, except where the failure to be so qualified or in
good standing, individually or in the aggregate, has not had or would
not have a Material Adverse Effect.
(g) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and nonassessable.
(h) The Company has the corporate power and requisite
authority to execute, deliver and carry out the terms and provisions of
the Transaction Documents.
(i) Each of the Transaction Documents and each other document
or instrument to be delivered by the Company in connection therewith
has been, or as of the Closing Date will have been, duly authorized by
all necessary corporate action of the Company; this Agreement has been
duly executed and delivered by the Company; and each of the other
Transaction Documents and each other document or instrument to be
delivered in connection herewith or therewith to be executed and
delivered by the Company after the date hereof will be duly executed
and delivered; and this Agreement is, and such other Transaction
Documents and other documents and instruments to which the Company is a
party will be, upon their execution and delivery by the Company (and
assuming due execution by you and the other parties thereto), the
legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with their respective terms, except to the
extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or
similar laws affecting the enforcement of creditors' rights and
remedies generally ("Bankruptcy Law") or by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) ("Equity").
(j) The execution, delivery and performance by the Company of
the Transaction Documents and each other document and instrument to be
executed, delivered or performed by the Company in connection
therewith; and the consummation of each of the Transactions, do not and
on the Closing Date will not (i) violate any statute, law, ordinance,
regulation, rule, order, judgment, writ, injunction or decree of any
state, commonwealth, nation, territory, possession, province, county,
parish, township, village, municipality or other jurisdiction (singly,
"Law," and collectively, the "Laws") applicable to the Company or any
judgment, order, writ, injunction or decree of any government, any
arbitration panel, any court or any governmental department,
commission, board, bureau, agency, authority or instrumentality of any
state, commonwealth, nation, territory, possession, province, county,
parish, town, township, village, municipality or other jurisdiction,
whether now or hereafter constituted and/or
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existing ("Tribunal") binding on the Company, except, other than with
respect to the Initial Placement and the offer and resale of the Notes
by the Initial Purchasers pursuant to this Agreement, for such
violations that individually or in the aggregate would not have a
Material Adverse Effect (ii) conflict with, result in a breach or
violation of or constitute a default under the certificate of
incorporation or bylaws of the Company or any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to
which the Company is a party or by which the Company or any of its
properties are bound ("Contracts"), except, other than with respect to
the Initial Placement and the offer and resale of the Notes by the
Initial Purchasers pursuant to this Agreement, for such violations that
individually or in the aggregate would not have a Material Adverse
Effect (iii) result in or require the creation or imposition of any
lien upon any of the properties or assets of the Company (other than
any liens created under the Bank Facility) or (iv) require any approval
of stockholders or any approval or consent of any person under any
Contracts except for such approvals or consents which have been
obtained and disclosed in writing to the Initial Purchasers.
(k) No consent, approval, authorization or order of any
Tribunal or other person is required in connection with the execution
and delivery by the Company of the Transaction Documents or any other
document or instrument to be delivered in connection therewith by the
Company or is required in connection with the consummation of the other
Transactions, other than any such consent, approval, authorization or
order which has been obtained and remains in full force and effect or
which has been waived in writing by the Initial Purchasers or such as
may be required under applicable state securities or Blue Sky laws.
(l) The audited financial statements (including the notes
thereto) of the Company included in the Final Memorandum comply as to
form in all material respects with the requirements applicable to
registration statements on Form S-1 under the Securities Act and fairly
present in all material respects the combined financial position of the
Company and the results of operations and cash flow thereof as of the
dates and periods therein specified. Such financial statements have
been prepared in accordance with generally accepted accounting
principles ("GAAP") consistently applied throughout the periods
involved. Since the date of the most recent financial statements
included in the Final Memorandum, except as described therein and in
the notes thereto or in the Final Memorandum, (i) the Company has not
incurred any liabilities or obligations, direct or contingent, or
entered into or agreed to enter into any transactions or Contracts
(written or oral) not in the ordinary course of business which
liabilities, obligations, transactions or Contracts would, individually
or in the aggregate, have a Material Adverse Effect, (ii) except as
contemplated by the Stock Purchase Agreement, the Company has not
purchased any of its outstanding Capital Stock, nor declared, paid or
otherwise made any dividend or distribution of any kind on its Capital
Stock, (iii) there has not been any material change in the long-term
indebtedness of the Company and (iv) none of the assets of the Company
have materially diminished in value. The unaudited pro forma financial
statements of the Company included in the Final Memorandum comply as to
form in all material respects with the requirements of the Securities
Act; the pro forma adjustments have been properly applied to the
historical amounts in the compilation of such pro forma statements; the
assumptions described in the notes to such
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pro forma statements provide a reasonable basis for presenting the
significant direct effects of the transactions contemplated therein;
and such pro forma adjustments comply as to form in all material
respects with the applicable accounting requirements of Regulation S-X
under the Securities Act ("Regulation S-X").
(m) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and
to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for inventory assets is compared
with the existing inventory assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(n) The Company is not now, and immediately after giving
effect to the consummation of the Transactions, will not be (i)
insolvent, (ii) left with unreasonably small capital with which to
engage in its anticipated businesses or (iii) incurring debts beyond
its ability to pay such debts as they become due. The Company is not in
liquidation, administration or receivership nor has any petition been
presented for the winding-up of the Company.
(o) The Company has, and after consummation of the
Transactions will have, good and marketable title to all of its
properties and assets, and a valid leasehold interest in all properties
held under lease by the Company, and none of the Company and, to the
knowledge of the Company, any other party thereto, is in default under
any lease, except in each case for such defects or defaults that,
singly or in the aggregate, would not have a Material Adverse Effect.
All such properties and assets owned or leased are so owned or leased
free and clear of liens other than liens permitted under of the
definition "Permitted Liens" set forth in the Final Memorandum. None of
the material assets of the Company is subject to any restriction which
would prevent continuation of the use currently made thereof or which
would materially adversely affect the value thereof.
(p) The Company is not (i) in violation of its certificate of
incorporation or bylaws, (ii) in breach or violation of any Laws or
(iii) in breach of or default under (nor has any event occurred which,
with notice or the passage of time or both, would constitute a default
under) or in violation of any of the terms or provisions of any
Contract, except for any such breach, default, violation or event in
each case of (i), (ii) or (iii) which would, individually or in the
aggregate, not have a Material Adverse Effect.
(q) There is no litigation pending or, to the knowledge of the
Company after due investigation, threatened, by, against, or which may
relate to or affect (a) any benefit plan or any fiduciary or
administrator thereof, (b) the Transactions or (c) the Company which,
individually or in the aggregate, would have a Material Adverse Effect.
There are no outstanding injunctions or restraining orders prohibiting
consummation of any of the Transactions or any other transactions
contemplated in connection therewith. The Company is not in default
with respect to any judgment, order, writ, injunction or decree of any
Tribunal, and there are no unsatisfied judgments against the Company or
its businesses
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or properties, except for defaults and unsatisfied judgments that
individually or in the aggregate would not have a Material Adverse
Effect. The Company has not been advised that there is a reasonable
likelihood of an adverse determination of any litigation which adverse
determination, should it occur, would have a Material Adverse Effect.
(r) The proceeds from the issuance and sale of the Notes will
be used solely for the purposes specified in the Final Memorandum. None
of such proceeds will be used for the purpose of purchasing or carrying
any Margin Stock within the meaning of the applicable provisions of
Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System, or for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry Margin
Stock or for any other purpose which might cause any of the Notes to be
considered a "purpose credit" within the meaning of the applicable
provisions of Regulation G, T, U or X.
(s) All material Tax Returns, foreign and domestic, required
to be filed by the Company in any jurisdiction have been timely filed,
and all material Taxes (whether or not actually shown on such Tax
Returns) for which it is directly or indirectly liable or to which any
of its respective properties or assets is subject have been paid other
than taxes being contested in good faith and for which adequate
reserves have been established in accordance with GAAP; all such Tax
Returns are true, correct and complete in all material respects and
accurately set forth all items to the extent required to be reflected
or included in such Tax Returns by applicable federal, state, local or
foreign Tax laws, regulations or rules. There is no material proposed
tax assessment against the Company and, to the best knowledge of the
Company, there is no basis for such assessment, except for contested
claims.
As used herein, the following terms shall have the respective
meaning ascribed to each below:
"Tax Return" means a report, return or other information
(including any amendments) required to be supplied to a governmental entity with
respect to Taxes including, where permitted or required, combined or
consolidated returns for any group of entities that includes the Company.
"Taxes" shall mean all taxes, however denominated, including
any interest or penalties that may become payable in respect thereof, imposed by
any federal, state, local or foreign government or any agency or political
subdivision of any such government, which taxes shall include, without limiting
the generality of the foregoing, all income taxes (including, but not limited
to, United States federal income taxes and state income Taxes), payroll and
employee withholding taxes, unemployment insurance, social security, sales and
use taxes, excise taxes, environmental, franchise taxes, gross receipts taxes,
occupation taxes, real and personal property taxes, stamp taxes, transfer taxes,
withholding taxes, workers' compensation, and other obligations of the same or
of a similar nature, whether arising before, on or after the Closing Date.
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(t) (A) After giving effect to the Transactions, no ERISA
Events have occurred or are reasonably expected to occur which
individually or in the aggregate resulted in or might reasonably be
expected to result in a liability of the Company or any of its ERISA
Affiliates which would have a Material Adverse Effect.
(B) In accordance with the most recent actuarial valuations,
the Amount of Unfunded Benefit Liabilities individually or in the
aggregate for all Pension Plans (excluding for purposes of such
computation any Pension Plans which have a negative Amount of Unfunded
Benefit Liabilities), is not an amount which would have a Material
Adverse Effect.
As used herein, the following terms shall have the respective
meaning ascribed to each below:
"Amount of Unfunded Benefit Liability" means, with respect to
any Pension Plan, (i) if set forth on the most recent actuarial valuation report
with respect to such Pension Plan, the amount of unfunded benefit liabilities
(as defined in Section 4001(a)(18) of ERISA) and (ii) otherwise, the excess of
(a) the greater of the current liability (as defined in Section 412(1)(7) of the
Internal Revenue Code) or the actuarial present value of the accrued benefits
with respect to such Pension Plan over (b) the market value of the assets of
such Pension Plan.
"Employee Pension Benefit Plan" means any "employee pension
benefit plan" as defined in Section 3(2) of ERISA (i) which is, or, at any time
within the five calendar years immediately preceding the date hereof, was at any
time, sponsored, maintained or contributed to by the Company or any of its ERISA
Affiliates or (ii) with respect to which the Company retains any liability,
including any potential joint and several liability as a result of an
affiliation with an ERISA Affiliate or a party that would be an ERISA Affiliate
except for the fact the affiliation ceased more than five calendar years prior
to the date hereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder and any successor statute, regulations and rulings.
"ERISA Affiliate," as applied to any person, means (i) any
corporation which is, or was at any time within the five calendar years
immediately preceding the date hereof, a member of a controlled group of
corporations within the meaning of Section 414(b) of the Internal Revenue. Code
of which that person is, or was at any time within the five calendar years
immediately preceding the date hereof, a member; (ii) any trade or business
(whether or not incorporated) which is, or was at any time within the five
calendar years immediately preceding the date hereof, a member of a group of
trades or businesses under common control within the meaning of Section 414(c)
of the Internal Revenue Code of which that person is, or was at any time within
the five calendar years immediately preceding the date hereof, a member; and
(iii) any member of an affiliated service group within the meaning of Section
414(m) or (o) of the Internal Revenue Code of which that person, any corporation
described in clause (i) above or any trade or business described in clause (ii)
above is, or was at any time within the five calendar years immediately
preceding the date hereof, a member.
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"ERISA Event" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued thereunder with
respect to any Pension Plan (excluding those for which the provision for 30-day
notice to the PBGC has been waived by regulation); (ii) the failure to meet the
minimum funding standard of Section 412 of the Internal Revenue Code with
respect to any Pension Plan (whether or not waived) or the failure to make any
required contribution with respect to any Multiemployer Plan; (iii) the
provision by the administrator of any Pension Plan pursuant to Section
4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (iv) the withdrawal by the
Company or any of its ERISA Affiliates from any Multiple Employer Plan or the
termination of any such Multiple Employer Plan resulting in liability pursuant
to Sections 4063 or 4064 of ERISA; (v) the institution by the PBGC of
proceedings to terminate any Pension Plan, or the occurrence of any event or
condition which might reasonably be expected to constitute grounds under ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan; (vi) the imposition of liability on the Company or any of its
ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of
the application of Section 4212(c) of ERISA; (vii) the withdrawal by the Company
or any of its ERISA Affiliates in a complete or partial withdrawal (within the
meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there
is any potential liability therefor, or the receipt by the Company or any of its
ERISA Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that
it intends to terminate or has terminated under Section 4041 A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could reasonably be expected
to give rise to the imposition on the Company or any of its ERISA Affiliates of
fines, penalties, taxes or related charges under Chapter 43 of the Internal
Revenue Code or under Sections 406, 409 or 502(i) or (1) of ERISA in respect of
any Employee Benefit Pension Plan; (ix) receipt from the Internal Revenue
Service of notice of the failure of any Pension Plan (or any other Employee
Pension Benefit Plan intended to be qualified under Section 401 (a) of the
Internal Revenue Code) to qualify under Section 401 (a) of the Internal Revenue
Code, or the failure of any trust forming part of any Pension Plan or Employee
Pension Benefit Plan to qualify for exemption from taxation under Section 501
(a) of the Internal Revenue Code; or (x) the imposition of alien pursuant to
Section 401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to ERISA
with respect to any Pension Plan.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and any successor code or statute.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which any of the Company or any of its ERISA
Affiliates is making or accruing an obligation to make contributions, or has
within any of the preceding five years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (i) is maintained for employees of
the Company or any of its ERISA Affiliates and at least one person other than
the Company and its ERISA Affiliates or (ii) was so maintained and in respect of
which such Company or ERISA Affiliates could have liability under Section 4064
or Section 4069 of ERISA in the event such plan has been or were to be
terminated.
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"Pension Plan" means a Single Employer Plan or Multiple
Employer Plan.
"PBGC" means the Pension Benefit Guaranty Corporation, and any
successor to all or any of the Pension Benefit Guaranty Corporation's functions
under ERISA.
"Single Employer Plan" means a "single-employer plan," as
defined in Section 4001(a)(15) of ERISA, that (i) is maintained for employees of
the Company or any of its ERISA Affiliates and no person other than the Company
or any of its ERISA Affiliates or (ii) was so maintained and in respect of which
such Company or ERISA Affiliates could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
(u) The Company is not subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act of 1935, the
Investment Company Act of 1940 (as any of the preceding acts have been
amended) or other Law which regulates the incurrence by the Company of
indebtedness, including, but not limited to, Laws relating to common
contract carriers or the sale of electricity, gas, steam, water or
other public utility services.
(v) (A) The Company owns or is licensed to use, and
immediately after consummation of the Transactions, will own or be
licensed to use, all patents, trademarks, tradenames, copyrights,
technology, know-how and processes used in or necessary for the conduct
of the business of the Company as currently conducted ("Intellectual
Property") except where the failure to own or license the use of such
Intellectual Property does not, singly or in the aggregate, have a
Material Adverse Effect.
(B) To the Company's knowledge, no material claim has
been asserted by any person with respect to the use of any
such Intellectual Property, or challenging or questioning the
validity or effectiveness of any such Intellectual Property.
To the Company's knowledge, the use of such Intellectual
Property by the Company does not infringe on the rights of any
person, subject to such claims and infringements as do not,
singly or in the aggregate, have a Material Adverse Effect.
The consummation of the Transactions will not in any material
manner or to any material extent impair the ownership of (or
the license to use, as the case may be) such Intellectual
Property by the Company.
(w) After giving effect to the Transactions:
(A) the operations of the Company (including, without
limitation, as the term is used throughout this Section 1(w),
all operations and conditions at or in the Facilities) comply
in all material respects with all Environmental Laws except
for any such noncompliance which would not reasonably be
expected to have a Material Adverse Effect;
(B) The Company has obtained all Permits under
Environmental Laws necessary to its operations, and all such
Permits are being maintained in good standing, including the
timely submission of any renewal applications, and the Company
is in compliance with all material terms and conditions of
such Permits
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except for any such failure to obtain, maintain or comply
which would not reasonably be expected to have a Material
Adverse Effect;
(C) the Company is not aware of nor has it received
(a) any written notice or claim to the effect that it is or
may be liable to any person under any Environmental Law,
including without limitation, any notice or claim relating to
any Hazardous Materials except as would not reasonably be
expected to have a Material Adverse Effect or (b) any letter
or request for information under Section 104 of the
Comprehensive Environmental Response, Compensation, and
Liability Act (42 X.X.X.xx. 9604) or comparable foreign or
state laws regarding any matter which could reasonably be
expected to result in a Material Adverse Effect, and, to the
best of the Company's knowledge, the Company is not nor will
it be involved in any investigation, response or corrective
action relating to or in connection with any Hazardous
Materials at any Facility or at any other location except for
such of the foregoing which would not reasonably be expected
to have a Material Adverse Effect;
(D) the Company is not subject to any judicial or
administrative proceeding alleging the violation of or
liability under any Environmental Laws which if adversely
determined could reasonably be expected to have a Material
Adverse Effect;
(E) none of the Company or any of its respective
Facilities or operations is subject to any outstanding written
order or agreement with any governmental authority or private
party relating to (a) any actual or potential violation by the
Company of or liability of the Company under Environmental
Laws or (b) any Environmental Claims except for such of the
foregoing which would not reasonably be expected to have a
Material Adverse Effect;
(F) to the best of the Company's knowledge, the
Company does not have any contingent liability in connection
with any Release or threatened Release of any Hazardous
Materials by the Company except for such of the foregoing
which would not reasonably be expected to have a Material
Adverse Effect;
(G) to the best of the Company's knowledge, the
Company and all predecessors of the Company have filed any
notice required under any Environmental Law indicating past or
present treatment, storage or disposal of hazardous waste, as
defined under 40 C.F.R. Parts 260-270 or any comparable
foreign or state laws;
(H) to the best of the Company's knowledge, no
Hazardous Materials exist on, under or about any Facility in a
manner that would reasonably be expected to give rise to an
Environmental Claim having a Material Adverse Effect. The
Company has not filed any notice or report of a Release of any
Hazardous Materials that would reasonably be expected to give
rise to an Environmental Claim having a Material Adverse
Effect;
-11-
(I) neither the Company nor, to the best of the
Company's knowledge, any of the predecessors of the Company,
has disposed of any Hazardous Materials in a manner that would
reasonably be expected to give rise to an Environmental Claim
having a Material Adverse Effect;
(J) to the best of the Company's knowledge, no
underground storage tanks or surface impoundments are on or at
any Facility; and
(K) no lien in favor of any person relating to or in
connection with any Environmental Claim has been filed or has
been attached to any Facility or other assets of the Company
except for any such lien which would not reasonably be
expected to have a Material Adverse Effect.
Notwithstanding anything in this Section 1(w) to the contrary,
no event or condition has occurred which may interfere with present compliance
by the Company with any Environmental Law or which could reasonably be expected
to result in any liability under any Environmental Law which, individually or in
the aggregate, has had a Material Adverse Effect.
As used herein, the following terms shall have the respective
meaning ascribed to each below:
"Environmental Claims" means any allegation, notice of
violation, claim, demand, abatement order or other order by any governmental
authority or any person for any response or corrective action, any damage,
including, without limitation, personal injury (including sickness, disease or
death), property damage, contribution, indemnity, indirect or consequential
damages, damage to the environment, nuisance, pollution, contamination or other
adverse effects on the environment, or for fines, penalties or restrictions, in
each case arising under or relating to any Environmental Law, including without
limitation, relating to, resulting from or in connection with Hazardous
Materials and relating to the Company or any of its Facilities or predecessors
of the Company.
"Environmental Laws" means the common law and all statutes,
ordinances, orders, rules, regulations, requirements, judgments, policies or
decrees relating to (i) pollution, protection, preservation, cleanup or
reclamation of the environment, natural resources, human, plant or animal health
or welfare, (ii) the Release or threatened Release of Hazardous Materials, (iii)
manufacture, processing, treatment, handling, recycling, generation, use,
storage, transportation or disposal of Hazardous Materials including, without
limitation, investigation, study, assessment, testing, monitoring, containment,
removal, remediation, or clean-up of any such Release or (iv) occupational
safety and health and industrial hygiene.
"Facilities" means any and all real property (including,
without limitation, all buildings, fixtures or other improvements located
thereon) now, hereafter or heretofore owned, leased, operated or used by the
Company or any of its predecessors of the Company.
"Hazardous Materials" means (i) any chemical, material or
substance at any time defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous
substance," "restricted hazardous waste," "infectious waste," "toxic substances"
or any other formulations intended to define, list or
-12-
classify substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, "TCLP
toxicity" or "EP toxicity" or words of similar import under any applicable
Environmental Laws or publications issued pursuant thereto; (ii) any oil,
petroleum, petroleum fraction or petroleum derived substance; (iii) any
flammable substances or explosives; (iv) any radioactive materials or gases; (v)
asbestos; (vi) urea formaldehyde foam insulation; (vii) electrical equipment
which contains any oil or dielectric fluid containing levels of polychlorinated
biphenyls in excess of fifty parts per million; (viii) pesticides; (ix)
lead-based paint; and (x) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any governmental authority.
"Permits" has the meaning ascribed to it in Section 1(x)
below.
"Release" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of Hazardous Materials into the environment
(including, without limitation, the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Materials), or
onto or out of any Facility, including the movement of any Hazardous Material
through the air, soil, surface water, groundwater or property.
(x) The Company has, and immediately after the consummation of
the Transactions will have, such certificates, permits, licenses,
franchises, consents, approvals, authorizations and clearances
("Permits"), and is, and immediately after the consummation of the
Transactions will be, in compliance in all material respects with all
Laws as are necessary to own, lease or operate its properties and to
conduct its businesses in the manner as presently conducted and to be
conducted immediately after the consummation of the Transactions except
where the failure to have such Permits or to comply with such Laws
would not, singly or in the aggregate, have a Material Adverse Effect,
and all such Permits are valid and in full force and effect and will be
valid and in full force and effect immediately upon consummation of the
Transactions. The Company is, and immediately after the consummation of
the Transactions will be, in compliance in all material respects with
its obligations under such Permits and no event has occurred or will
occur as a result of the consummation of the Transactions that allows,
or after notice or lapse of time or both would allow, revocation or
termination of such Permits except for any such revocation or
termination as would not, singly or in the aggregate, have a Material
Adverse Effect.
(y) The Company carries or is entitled to the benefits of
insurance (including self insurance) in such amounts and covering such
risks as is generally maintained by companies of established repute
engaged in the same or similar businesses, and all such insurance is
(and will be immediately after the consummation of the Transactions) in
full force and effect, except where the failure to carry such insurance
or be entitled to the benefits of such insurance does not, singly or in
the aggregate, have a Material Adverse Effect.
(z) No labor disturbance by the employees of the Company
exists or, to the best knowledge of the Company, is threatened and the
Company is not aware of any existing or imminent labor disturbance by
the employees of the Company's principal
-13-
suppliers, manufacturers or customers that could, singly or in the
aggregate, have a Material Adverse Effect.
(aa) Except for the fees and expenses payable to the Initial
Purchasers and to Xxxxxxx Xxxxx & Partners, L.P., which fees and expenses will
be paid by the Company on the Closing Date, the Company did not employ any
investment banker, broker, finder, consultant, intermediary or other person in
connection with the transactions contemplated by this Agreement which would be
entitled to any investment banking, brokerage, finder's or other fee or
commission in connection with this Agreement or the transactions contemplated
hereby.
Any certificate signed by any officer of the Company and
delivered to the Initial Purchasers or their counsel shall be deemed to be a
representation and warranty by the Company to the Initial Purchasers as to the
matters covered thereby to the extent expressly set forth therein.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each of the Initial Purchasers, and each of the
Initial Purchasers agrees to purchase from the Company, severally and not
jointly, at a purchase price equal to 97% of the principal amount thereof, Notes
in the respective principal amount set forth opposite its name on Schedule I
hereto.
3. Delivery and Payment. Delivery of and payment for the Notes
shall be made at 10:00 AM, New York City time, on March 31, 1998, which date and
time may be postponed by agreement between the Initial Purchasers and the
Company (such date and time of delivery and payment for the Notes being herein
called the "Closing Date"). Delivery of the Notes shall be made to the Initial
Purchasers against payment by the Initial Purchasers of the purchase price
thereof to or upon the order of the Company by intrabank transfer payable in
same day funds or such other manner of payment as may be agreed by the Company
and the Initial Purchasers. Delivery of the Notes and payment for the Notes
shall be made at the office of Kramer, Levin, Naftalis & Xxxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000. Certificates for the Notes shall be registered in
such names and in such denominations as the Initial Purchasers may request not
less than two full Business Days in advance of the Closing Date.
The Company agrees to have the Notes available for inspection,
checking and packaging by the Initial Purchasers in New York, New York, not
later than 1:00 PM on the Business Day prior to the Closing Date.
4. Offering of Notes and the Initial Purchasers'
Representations and Warranties. (a) Each of the Initial Purchasers has advised
the Company that it is its intention, as promptly as it deems appropriate after
the Company shall have furnished it with copies of the Final Memorandum, to
resell the Notes pursuant to the procedures and upon the terms and subject to
the conditions set forth in the Final Memorandum.
(b) Each of the Initial Purchasers represents and warrants to
and agrees with the Company that:
(i) It is not acquiring the Notes with a view to any
distribution thereof within the meaning of the Securities Act
or with any present intention of offering or selling any of
the Notes in a transaction that would violate the Securities
Act or the securities laws of any State of the United States
or any other applicable jurisdiction.
-14-
(ii) It has not offered or sold, and it will not
offer or sell, any Notes except (x) within the United States
to those it reasonably believes to be qualified institutional
buyers (as defined in Rule 144A under the Securities Act)
("QIBs") in transactions meeting the requirements of Rule
144A, (y) to other institutional "accredited investors" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) who provide to it and to the Company a letter
in the form of Exhibit A hereto or (z) outside the United
States to persons other than U.S. persons (or the account or
benefit of U.S. persons) within the meaning of and in reliance
upon Regulation S under the Securities Act. In connection with
each sale pursuant to clause (x) above, each Initial Purchaser
has taken or will take reasonable steps to ensure that the
purchaser of such Notes is aware that such sale is being made
in reliance upon Rule 144A.
(iii) It is an institutional accredited investor with
such knowledge and experience in financial and business
matters as are necessary in order to evaluate the merits and
risks of an investment in the Notes.
(iv) Neither it nor any person acting on its behalf
has made or will make offers or sales of the Notes by means of
any form of general solicitation or general advertising
(within the meaning of Regulation D under the Securities Act).
(v) It has not offered or sold, and prior to the date
six months after the issue of the Notes, will not offer or
sell any Notes to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses, or otherwise in
circumstances which have not resulted and will not result in
an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995.
(vi) It has complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 with
respect to anything done by it in relation to the Notes in,
from or otherwise involving the United Kingdom.
(vii) It has only issued or passed on and will only
issue or pass on in the United Kingdom any document received
by it in connection with the issue of the Notes to a person
who is of a kind described in Article 11(3) of the Financial
Services Xxx 0000 (Investment Advertisements) (Exemptions)
Order 1996 (as amended) or is a person to whom the document
may otherwise lawfully be issued or passed on.
5. Agreements. The Company agrees with the Initial
Purchasers that:
(a) The Company will furnish to the Initial Purchasers and to
Cleary, Gottlieb, Xxxxx & Xxxxxxxx ("Counsel for the Initial
Purchasers"), without charge, during the
-15-
period referred to in paragraph (c) below, as many copies of the Final
Memorandum and any amendments and supplements thereto as they may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering of the Notes
and will reimburse the Initial Purchasers for payment of the required
PORTAL filing fee.
(b) The Company will not amend or supplement the Final
Memorandum prior to the completion of the distribution of the Notes by
the Initial Purchasers, without the prior written consent of each of
the Initial Purchasers.
(c) If at any time prior to the completion of the distribution
of the Notes acquired by the Initial Purchasers pursuant to this
Agreement, during which time you are required to deliver a Final
Memorandum in connection with sales of the Notes by you (as reasonably
determined by the Initial Purchasers, upon the advice of counsel), any
event occurs as a result of which the Final Memorandum, as then amended
or supplemented, would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if it should be necessary to amend or supplement the
Final Memorandum to comply with applicable law, the Company will
promptly notify the Initial Purchasers of the same and, subject to the
requirements of paragraph (b) of this Section 5, will prepare and
provide to the Initial Purchasers pursuant to paragraph (a) of this
Section 5 an amendment or supplement that will correct such statement
or omission or effect such compliance.
(d) The Company will arrange for the qualification of the
Notes for sale by the Initial Purchasers under the laws of such
jurisdictions as the Initial Purchasers may reasonably designate and
will maintain such qualifications in effect so long as required by law
for the sale of the Notes by the Initial Purchasers; provided, however,
that the Company will not be required to qualify generally to do
business in any jurisdiction in which it is not then so qualified, to
file any general consent to service of process or to take any other
action which would subject it to general service of process or to
taxation in any such jurisdiction where it is not then so subject. The
Company will promptly advise the Initial Purchasers of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(e) The Company, whenever it publishes or makes available to
the public (by filing with any regulatory authority or securities
exchange or by publishing a press release or otherwise) any information
that could reasonably be expected to be material in the context of the
issue of Notes under this Agreement, shall promptly notify the Initial
Purchasers as to the nature of such information or event. The Company
will likewise notify the Initial Purchasers of (i) any decrease in the
rating of the Notes or any other debt securities of the Company by any
nationally recognized statistical rating organization (as defined in
Rule 436(g)(2) under the Securities Act) or (ii) any notice given of
any intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change, as soon as the Company becomes aware of any such
decrease or notice. The Company will also deliver
-16-
to the Initial Purchasers, as soon as available and without request,
copies of its latest yearly and quarterly financial statements and any
report of its auditors thereon.
(f) The Company will not, and will not permit any of its
Affiliates to, resell any Notes that have been acquired by any of them,
other than pursuant to an effective registration statement under the
Securities Act.
(g) Except as contemplated in the Registration Rights
Agreement and except as disclosed in the Final Memorandum, none of the
Company or any of its Affiliates, nor any person acting on its or their
behalf (other than the Initial Purchasers or any of their Affiliates,
as to whom the Company expresses no opinion) will, directly or
indirectly, make offers or sales of any security, or solicit offers to
buy any security, under circumstances that would require the
registration of the Notes under the Securities Act.
(h) None of the Company or any of its Affiliates, nor any
person acting on its or their behalf (other than the Initial Purchasers
or any of their Affiliates, as to whom the Company expresses no
opinion) will engage in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with any
offer or sale of the Notes.
(i) So long as any Notes remain outstanding, the Company shall
provide the Trustee, the holders of the Notes and the Initial
Purchasers with such annual reports and such information, documents and
other reports (other than exhibits) as are specified in Sections 13 and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and applicable to a U.S. corporation subject to such Sections,
such information, documents and other reports to be so provided within
15 days after the times specified for the filing of such information,
documents and reports under such Sections. Notwithstanding that the
Company may not be subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, the Company will, beginning on the
earlier of (x) the date on which, pursuant to the Registration Rights
Agreement, the Exchange Offer Registration Statement (as defined
therein) becomes effective and (y) 730 days following the Issue Date,
file with the Commission, to the extent permitted, such annual reports
and such information, documents and other reports as are specified in
Sections 13 and 15(d) of the Exchange Act and applicable to a U.S.
corporation subject to such Sections, such information, documents and
other reports to be so filed within 15 days after the times specified
for the filing of such information, documents and reports under such
Sections. In addition, the Company will make available, upon request,
to any holder and any prospective purchaser of Notes the information
required pursuant to Rule 144A(d)(4) under the Securities Act.
(j) The Company will cooperate with the Initial Purchasers and
use its best efforts to (i) permit the Notes to be designated PORTAL
securities in accordance with the Rules and regulations of the NASD
relating to trading in the Private Offerings, Resale and Trading
through Automated Linkages market ("PORTAL") and (ii) permit the Notes
to be eligible for clearance and settlement as described under
"Book-Entry; Delivery and Form" in the Final Memorandum.
-17-
(k) The Company will apply the net proceeds from the sale of
the Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(l) The Company will conduct its operations in a manner that
will not subject the Company to registration as an investment company
under the Investment Company Act of 1940, as amended.
(m) Each Note will bear a legend substantially to the
following effect until such legend shall no longer be necessary or
advisable because the Notes are no longer subject to the restrictions
on transfer described therein:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR
(B) IT IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN
"ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES THAT IT
WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
NOTE RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE
ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES
TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO
AN ACCREDITED INVESTOR THAT IS ACQUIRING THE NOTE FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, IN
EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF U.S.
$250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR
FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT; AND (3) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED
-18-
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN TWO YEARS
AFTER THE ORIGINAL ISSUANCE OF THIS NOTE, IF THE PROPOSED
TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR
TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER
OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
6. Conditions to the Obligations of the Initial Purchasers.
The obligations of the Initial Purchasers to purchase the Notes shall be subject
to the accuracy of the representations and warranties on the part of the Company
contained herein at the date and time that this Agreement is executed and
delivered by the parties hereto (the "Execution Time") and the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder in all material respects and to the following additional conditions:
(a) The Company shall have furnished to the Initial Purchasers
the opinions of Kramer, Levin, Naftalis & Xxxxxxx and Xxxxxxxxx, Xxxxxx
Xxxxxxxx, Xxxxxx & Xxxxxx, P.C. ("Counsel for the Company"), each dated
the Closing Date, in form and substance satisfactory to the initial
Purchasers to the effect set forth in Exhibit B-1 and B-2 hereto.
(b) The Initial Purchasers shall have received from Counsel
for the Initial Purchasers such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Notes and other
related matters as the Initial Purchasers may reasonably require, and
the Company shall have furnished to such counsel such documents as it
reasonably requests for the purpose of enabling it to pass upon such
matters.
(c) The Company shall have furnished to the Initial Purchasers
a certificate dated the Closing Date, signed on behalf of the Company
by any two of its Co-Chairmen of the Board and Co-Chief Executive
Officers, President, Chief Financial Officer and any Vice President to
the effect that the signer of such certificate has carefully examined
the Final Memorandum, any amendment or supplement to the Final
Memorandum and this Agreement and that:
(i) the representations and warranties of the Company
contained in this Agreement are true and correct in all
material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, and the Company has
complied in all material respects with all the agreements and
satisfied in all material respects all the conditions on its
part to be performed or satisfied hereunder at or prior to the
Closing Date; and
-19-
(ii) since the date of the most recent financial
statements included in the Final Memorandum, there has been no
change or development or event involving a prospective change
constituting a Material Adverse Effect, except as set forth in
or contemplated by the Final Memorandum (exclusive of any
amendment or supplement thereto).
(d) At the Execution Time and at the Closing Date, KPMG Peat
Marwick LLP shall have furnished to the Initial Purchasers a letter or
letters, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance reasonably satisfactory to the
Initial Purchasers, confirming that they are independent public
accountants within the meaning of Rule 101 of the Code of Professional
Conduct of the American Institute of Certified Public Accountants (the
"AICPA") and stating in effect that:
(i) they have (a) read the incomplete unaudited
monthly financial statements for January 31, 1998 prepared by
the Company, (b) read the minutes of the meetings of the
stockholders, directors and committees of the board of
directors of the Company made available to them by the Company
and (c) made inquiries of certain officials of the Company who
have responsibility for financial and accounting matters of
the Company whether the financial statements referred to in
clause (a) above are stated on a basis substantially
consistent with that of the audited combined financial
statements included in the Final Memorandum.
(ii) Nothing came to their attention as a result of
the procedures performed in (a), (b) and (c) above that caused
them to believe that, (1) at January 31, 1998, there was any
change in capital stock, increase in long-term debt or
decrease in combined net current assets or stockholders'
equity of the Company as compared with amounts shown in the
December 31, 1997 audited combined balance sheet included in
the Final Memorandum, or (2) for the period from January 1,
1998 to January 31, 1998, there were any decreases, as
compared to the corresponding period in the preceding year, in
combined net sales or in the total amount of net income,
except in all instances for (I) changes, increases or
decreases that the Final Memorandum disclosed have occurred or
may occur or (II) as set forth in such letter, in which case
the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said explanation
is not deemed necessary by the Initial Purchasers;
(iii) they have inquired of certain officials of the
Company who have responsibility for financial and accounting
matters whether (a) at any specified date not more than three
Business Days prior to the date of the letter, there was any
change in the capital stock, increase in long-term debt or any
decrease in combined net current assets or stockholders'
equity of the Company as compared with amounts shown on the
January 31, 1998, unaudited combined balance sheet or (b) for
the period from January 31, 1998 to any specified date not
more than three Business Days prior to the date of the letter,
there were any decreases as compared with the corresponding
period in the preceding year, in combined net sales or in the
total amount of net income. On the basis of these inquiries,
nothing
-20-
came to their attention that caused them to believe that there
was any such change, increases or decrease, except in all
instances for (I) changes, increases, or decreases, that the
Final Memorandum discloses have occurred or may occur or (II)
as set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Initial Purchaser;
(iv) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company) set forth in the Final Memorandum, including without
limitation the information set forth under the captions
"Summary," "Risk Factors," "Use of Proceeds,"
"Capitalization," "Unaudited Pro Forma Combined Financial
Data," "Selected Historical Combined Financial Data,"
"Management's Discussion and Analysis of Financial Condition
and Results of Operations," "Business" and "Certain
Relationships and Related Transactions," in the Final
Memorandum agrees with the accounting records of the Company,
excluding any questions of legal interpretation; and
(v) as to pro forma financial information,
(A) they have read the unaudited pro forma combined
financial data included in the Final Memorandum;
(B) they have inquired of certain officials of the
Company who have responsibility for financial and accounting
matters as to the basis for their determination of the pro
forma adjustments;
(C) they have proved the arithmetic accuracy of the
application of the pro forma adjustments to the historical
financial amounts in the unaudited pro forma combined
consolidated financial data, and as a result of the procedures
specified in (A), (B) and (C), nothing came to their attention
that caused them to believe that the pro forma adjustments
have not been properly applied to the historical amounts in
the compilation of the unaudited pro forma combined
consolidated financial data included in the Final Memorandum;
and
(D) they have performed certain other specified
procedures as a result of which they determined that certain
pro forma information of an accounting, financial, or
statistical nature set forth in the Final Memorandum,
including without limitation the information set forth under
the captions "Summary," "Risk Factors," "Capitalization" and
"Unaudited Pro Forma Combined Financial Data" in the Final
Memorandum, agrees to or can be derived from the pro forma
financial data of the Company or the analysis completed in the
preparation of such pro forma financial data, excluding any
questions of legal interpretation.
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All references in this Section 6(d) to the Final Memorandum
shall be deemed to include any amendment or supplement thereto at the date of
the letter or letters.
(e) At the Execution Time, Xxxxxxx Xxxxxx Xxxxx & Co.
shall have furnished to the Initial Purchasers a letter, dated
as of the Execution Time, in form and substance reasonably
satisfactory to the Initial Purchasers, confirming that they
are independent public accountants within the meaning of Rule
101 of the Code of Professional Conduct of the American
Institute of Certified Public Accountants (the "AICPA") and
stating in effect that
(i) they have (a) read the incomplete
unaudited monthly financial statements for January
31, 1998 and January 31, 1997 prepared by the
Company, (b) read the minutes of the meetings of the
stockholders, directors and committees of the board
of directors of the Company made available to them by
the Company and (c) made inquiries of certain
officials of the Company who have responsibility for
financial and accounting matters of the Company
whether the financial statements referred to in
clause (a) above are stated on a basis substantially
consistent with that of the audited combined
financial statements included in the Final
Memorandum; and
(ii) they have performed certain specified
procedures as a result of which they determined that
certain information of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company) set forth
in the Final Memorandum, including without limitation
the information set forth under the captions
"Summary," "Selected Historical Combined Financial
Data," "Management's Discussion and Analysis of
Financial Condition and Results of Operations,"
"Business" and "Certain Relationships and Related
Transactions," in the Final Memorandum, agrees with
the accounting records of the Company, excluding any
questions of legal interpretation.
All references in this Section 6(e) to the Final Memorandum
shall be deemed to include any amendment or supplement thereto at the date of
the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Final Memorandum and prior to
the Closing Date, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (d) of this
Section 6, or (ii) any change, or any development involving a
prospective change, in or affecting the business or properties of the
Company, the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the judgment of the Initial Purchasers, so material
and adverse as to make it impractical or inadvisable to market the
Notes as contemplated by the Final Memorandum.
(g) Subsequent to the respective dates as of which information
is given in the Final Memorandum and after giving effect to the
Transactions, (i) the Company shall not have incurred any material
liability or obligation, direct or contingent, or entered into any
material transaction not in the ordinary course of business; (ii) the
Company shall not have purchased any of its outstanding Capital Stock,
nor declared, paid or otherwise made any dividend or distribution of
any kind on its Capital Stock; (iii) there shall not
-22-
have been any material change in the Capital Stock of the Company or in
the short-term debt or long-term debt of the Company; and (iv) none of
the assets of the Company shall have materially diminished in value,
except in each case as described in or contemplated by the Final
Memorandum.
(h) Subsequent to the Execution Time and prior to the Closing
Date, there shall not have been any decrease in the rating of the Notes
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g)(2) under the Securities Act) or any
notice given of any intended or potential decrease in any such rating
or of a possible change in any such rating that does not indicate the
direction of the possible change.
(i) On or prior to the Closing Date, each of the Transaction
Documents (including any amendments thereto) shall have been duly
authorized, executed and delivered by each of the parties thereto, and
the Initial Purchasers shall have received copies of each such
Transaction Document (including any amendments thereto) as so executed
and delivered in the form provided to the Initial Purchasers on or
before the date hereof except for changes approved by the Initial
Purchasers or changes which do not materially affect the rights or
obligations of the Company.
(j) The Company shall have been advised by the National
Association of Securities Dealers, Inc. (the "NASD") that the Notes
have been designated PORTAL eligible securities in accordance with the
Rules and regulations of the NASD relating to trading in the Private
Offerings, Resales and Trading through Automated Linkages Market (the
"PORTAL Market").
(k) On or before the Closing Date, all conditions to
borrowings under the Bank Facility shall have been satisfied or waived,
the initial borrowings thereunder shall have occurred concurrently with
the closing of the sale of the Notes hereunder as contemplated in the
Final Memorandum and all representations and warranties of the Company
contained in the Bank Facility shall be true and correct in all
material respects on the Closing Date as if made on the Closing Date.
(l) On or before the Closing Date, all conditions to
consummation of the Recapitalization pursuant to the Stock Purchase
Agreement shall have been satisfied or waived, the consummation of the
Recapitalization shall have occurred concurrently with the closing of
the sale of the Notes hereunder as contemplated in the Final Memorandum
and all representations and warranties of the Company contained in the
Stock Purchase Agreement shall be true and correct in all material
respects on the Closing Date as if made on the Closing Date.
(m) Prior to the Closing Date, the Company shall have
furnished to the Initial Purchasers such further information,
certificates and documents as the Initial Purchasers may reasonably
request.
-23-
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Initial Purchasers and Counsel for the
Initial Purchasers, this Agreement and all obligations of the Initial Purchasers
hereunder may be canceled at the Closing Date by the Initial Purchasers. Notice
of such cancellation shall be given to the Company in writing or by telephone or
by telegraph confirmed in writing.
The documents required to be delivered by this Section 6 will
be delivered at the office of Counsel for the Initial Purchasers on the Closing
Date.
7. Reimbursement of Expenses; Fees. The Company will, whether
or not the sale of the Notes provided for herein is consummated, pay all
expenses incident to the performance of its obligations under this Agreement and
the offering documents, including the fees and disbursements of its accountants
and counsel, the costs of printing or other production and delivery of the
Preliminary Memorandum, the Final Memorandum, all amendments thereof and
supplements thereto, each Transaction Document and all other documents relating
to the offering of the Notes, the costs of preparing, printing, packaging and
delivering the Notes, the fees and disbursements, including reasonable fees of
counsel incurred in compliance with Section 5(d), the fees and disbursements of
the Trustee and the fees of any agency that rates the Notes, and the fees and
expenses, if any, incurred in connection with the admission of the Notes for
trading in the PORTAL Market.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Initial Purchasers, the directors, officers,
employees and agents of the Initial purchasers and each person who controls any
of the Initial Purchasers within the meaning of either the Securities Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Memorandum, the Final Memorandum or any information provided by the
Company to any Holder or prospective purchaser of Notes pursuant to Section
5(i), or in any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made in
the Preliminary Memorandum or the Final Memorandum, or in any amendment thereof
or supplement thereto, in reliance upon and in conformity with written
information relating to the Initial Purchasers furnished to the Company by or on
behalf of the Initial Purchasers specifically for inclusion therein; and,
provided, further, that with respect to any untrue statement or omission of
material fact made in the Preliminary Memorandum, the indemnity agreement
contained in this Section 8(a) shall not inure to the benefit of the Initial
-24-
Purchasers to the extent that any such losses, claims, damages or liabilities
asserted against the Initial Purchasers occurs under circumstances where it
shall have been determined by a court of competent jurisdiction by final and
nonappealable judgment that (x) the Company had previously furnished copies of
the Final Memorandum to the Initial Purchasers as required by this Agreement,
(y) the untrue statement or omission of a material fact contained in the
Preliminary Memorandum was corrected in the Final Memorandum and (z) there was
not sent or given to such person asserting any such losses, claims, damages or
liabilities, at or prior to the written confirmation of the sale of Notes to
such person, a copy of the Final Memorandum. Notwithstanding the foregoing, in
the event that it is finally determined by a court of competent jurisdiction
that indemnification under this Section 8(a) is not available to an indemnified
party, expenses paid in advance of the final disposition of such claim shall be
repaid to the Company by such indemnified party. This indemnity agreement will
be in addition to any liability which the company may otherwise have.
(b) The Initial Purchasers agree to indemnify and hold
harmless the Company, its directors, officers, employees and agents and
each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act to the same extent as the foregoing
indemnity from the Company to the Initial Purchasers, but only with
reference to written information relating to the Initial Purchasers
furnished to the Company by or on behalf of the Initial Purchasers
specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to
any liability which the Initial Purchasers may otherwise have. The
Company acknowledges that the statements set forth in the last
paragraph of the cover page and under the headings "Transfer
Restrictions" and "Plan of Distribution" in the Preliminary Memorandum
and the Final Memorandum constitute the only information furnished in
writing by or on behalf of the Initial Purchasers for inclusion in the
Preliminary Memorandum or Final Memorandum (or in any amendment or
supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding
the indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel (and local counsel) if (i) the
-25-
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall have
authorized the indemnified party to employ separate counsel at the
expense of the indemnifying party; provided further, that the
indemnifying party shall not be responsible for the fees and expenses
of more than one separate counsel (together with appropriate local
counsel) representing all the indemnified parties under paragraph (a)
or paragraph (b) above. An indemnifying party will not, without the
prior written consent of the indemnified party, settle or compromise or
consent to the entry of any judgement with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
an indemnified party is an actual or potential party to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable or insufficient to hold
harmless an indemnified party for any reason, the Company, on the one
hand, and the Initial Purchasers, on the other, agree to contribute to
the aggregate losses, claims, damages and liabilities (including legal
or other expenses reasonably incurred in connection with investigating
or defending same) (collectively "Losses") to which the Company, on the
one hand, and any Initial Purchaser, on the other, may be subject in
such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and by the Initial
Purchasers, on the other, from the offering of the Notes; provided,
however, that in no case shall any Initial Purchaser be responsible for
any amount in excess of the purchase discount or commission applicable
to the Notes purchased by such Initial Purchaser hereunder. If the
allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company, on the one hand, and any
Initial Purchasers, on the other, shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company, on the one hand, and of any Initial
Purchaser, on the other, in connection with the statements or omissions
that resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the offering (before deducting
expenses), and benefits received by any Initial Purchaser shall be
deemed to be equal to the total purchase discounts and commissions
received by such Initial Purchaser from the Company in connection with
the purchase of the Notes hereunder. Relative fault shall be determined
by reference to, among other things, whether any alleged untrue
statement or omission relates to information provided by the Company or
any Initial Purchaser and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company and the Initial Purchasers agree
that it would not be just and equitable if contribution were determined
by pro rata allocation or
-26-
any other method of allocation that does not take account of the
equitable considerations referred to above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages,
liabilities, expenses or judgments referred to in this paragraph (d)
shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified
person in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls any of the Initial
Purchasers within the meaning of either the Securities Act or the
Exchange Act and each director, officer, employee and agent of the
Initial Purchasers shall have the same rights to contribution as the
Initial Purchasers, and each person who controls the Company within the
meaning of either the Securities Act or the Exchange Act and each
officer, director, employee and agent of the Company shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Termination. This Agreement shall be subject to termination
by notice given by the Initial Purchasers to the Company prior to delivery of
and payment for the Notes if, after the date hereof and prior to such time,
there shall have occurred a material adverse change in the condition of the
financial, banking or capital markets the effect of which, in the judgment of
the initial Purchasers, makes it impractical to market the Notes or to enforce
sale contracts with respect to the Notes.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Initial Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of the Initial Purchasers or the Company
or any of its officers, directors or controlling persons referred to in Section
8 hereof, and will survive delivery of and payment for the Notes. The provisions
of Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Initial Purchasers, will be
mailed, delivered or telecopied and confirmed to it at 000 Xxxxx Xxxxxxx Xxxxxx,
XX-00, Xxxxxxxxx, XX 00000-0000, Telecopy No.: (000) 000-0000, Attention: Xxxx
Xxxxx; or, if sent to the Company, will be mailed, delivered or telecopied and
confirmed to them at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000, Telecopy No.:
(000) 000-0000, Attention: General Counsel.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns and the officers and directors and controlling persons referred to in
Section 8 hereof, and, except as expressly set forth in Section 5(i) hereof,
nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person, firm, corporation or other entity any legal
or equitable right, remedy or claim under or in respect to this Agreement or any
provisions herein contained. No purchaser of Notes from the Initial Purchasers
shall be deemed to be a successor merely by reason of such purchase.
-27-
13. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
14. Business Day. For purposes of this Agreement, "Business
Day" means any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of Charlotte, North Carolina or of New York, New York, or
is a day on which banking institutions therein located are authorized or
required by law or other governmental action to close.
15. Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be an original, but all such
counterparts will together constitute one and the same instrument.
-28-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
among the Company and the Initial Purchasers.
Very truly yours,
DIAMOND TRIUMPH AUTO GLASS, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: CEO
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above on behalf of itself
and the other Initial Purchasers
FIRST UNION CAPITAL MARKETS,
A DIVISION OF WHEAT FIRST SECURITIES, INC.
By: /s/ Xxxx Xxxxx
---------------------------
Name: Xxxx Xxxxx
Title: Director
