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EXHIBIT 4.1
Execution Copy
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HAWK CORPORATION
$100,000,000 AGGREGATE PRINCIPAL AMOUNT OF
10 1/4% SENIOR NOTES DUE 2003
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PURCHASE AGREEMENT
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New York, New York
November 22, 1996
XXXXXXXX XXXXXXXX & CO. INCORPORATED
BT SECURITIES CORPORATION
XxXXXXXX & COMPANY SECURITIES, INC.
c/x XXXXXXXX XXXXXXXX & CO. INCORPORATED
Equitable Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Hawk Corporation, a Delaware corporation (the "COMPANY"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to you (the "INITIAL PURCHASERS") $100,000,000 aggregate principal amount of
10 1/4% Senior Notes due 2003 (the "NOTES"), which Notes will be unconditionally
guaranteed (the "GUARANTEES"), on a senior unsecured basis, by each domestic
subsidiary of the Company existing on the Delivery Date and each domestic
subsidiary (other than Unrestricted Subsidiaries (as defined in the Memorandum))
created or acquired after the Delivery Date (the "GUARANTORS"). The Notes will
be issued pursuant to the provisions of an Indenture (the "INDENTURE") to be
entered into among the Company, the Guarantors and Bank One Trust Company, NA,
as trustee (the "TRUSTEE").
The Notes will be offered without being registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), in reliance on
exemptions therefrom provided by Section 4(2) of the Securities Act and Rule
144A and Regulation S promulgated thereunder.
In connection with the offering and sale of the Notes (the
"OFFERING"), the Company has prepared a preliminary offering memorandum (such
preliminary offering memorandum, together with any amendment thereof or
supplement thereto, is herein referred to as the "PRELIMINARY OFFERING
MEMORANDUM") and will prepare a final offering memorandum (such final offering
memorandum, together with any amendment thereof or supplement
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thereto, is herein referred to as the "FINAL OFFERING MEMORANDUM"; and, together
with the Preliminary Offering Memorandum, each a "MEMORANDUM") setting forth or
including a description of the terms of the Notes, the terms of the Offering, a
description of the Company and any material developments relating to the Company
occurring after the date of the most recent financial statements included
therein.
You and your direct and indirect transferees will be entitled
to the benefits of a Registration Rights Agreement to be entered into between
the Company, the Guarantors and the Initial Purchasers substantially in the form
attached hereto as EXHIBIT A (the "REGISTRATION RIGHTS AGREEMENT"), pursuant to
which the Company and each Guarantor will agree to use its best efforts to file
and have declared effective a registration statement (an "EXCHANGE OFFER
REGISTRATION STATEMENT") with the Securities and Exchange Commission (the
"COMMISSION") registering the offer and sale of the Notes, Private Exchange
Notes or the Exchange Notes (each as defined in the Registration Rights
Agreement) under the Securities Act. This Agreement, the Notes, the Guarantees,
the Indenture and the Registration Rights Agreement are referred to herein as
the "OFFERING DOCUMENTS."
The Offering is a component of a series of transactions (the
"TRANSACTIONS") which include, in addition to the Offering: (1) the Company's
repayment and termination of its existing senior credit facility (the "OLD
SENIOR CREDIT FACILITY"); (2) the Company's execution of a new revolving credit
facility (the "NEW REVOLVING CREDIT FACILITY"); (3) the amendment to the
Company's 12% senior subordinated notes; (4) the merger of the Company with Hawk
Holding Corp., a Delaware corporation and a principal stockholder of the
Company; and (5) the acquisition of Xxxxxxxxxx Foundry Products Company
("XXXXXXXXXX").
The agreements evidencing the Transactions (excluding the
Xxxxxxxxxx acquisition) and the Offering Documents are referred to herein as the
"TRANSACTION DOCUMENTS."
This letter agreement confirms the understandings concerning
the purchase by you of the Notes from the Company.
1. The Company and each of the Guarantors represents and
warrants to and agrees with you that:
(a) The Preliminary Offering Memorandum, as of its date, did
not contain any untrue statement of a material fact or omit to state a
material fact (except for pricing terms and other financial terms
intentionally left blank) necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, and the Final Offering Memorandum, as of its date did not,
and as of the Delivery Date (as defined below) will not, contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this Section 1(a) do
not apply to statements or omissions contained in any Memorandum made
in reliance upon and in conformity
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with information relating to the Initial Purchasers furnished by the
Initial Purchasers to the Company in writing expressly for use in
either Memorandum.
(b) Neither the Company nor any of the Subsidiaries (as
defined below) has sustained, since the date of the most recent
financial statements included in the Memorandum, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which loss or
interference is material to the Company and the Subsidiaries, taken as
a whole. Except as described in the Final Offering Memorandum, since
the respective dates as of which information is given in the Final
Offering Memorandum there has not been any change in the capital stock
or short-term debt or long-term debt of the Company or any of the
Subsidiaries, or any change or development which could reasonably be
expected to have a material adverse effect upon the business,
operations, assets, condition (financial or otherwise) or prospects of
the Company and the Subsidiaries, taken as a whole, or an adverse
effect on the ability of the Company to perform its obligations under
the Offering Documents (a "MATERIAL ADVERSE EFFECT"), otherwise than as
set forth or contemplated in the Final Offering Memorandum.
(c) The Company and the Subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them, in each case, free and clear of
all liens, adverse claims, encumbrances, security interests
(collectively, "LIENS") and defects except those arising under the Old
Senior Credit Facility (which shall be released concurrently with the
Offering upon termination of the Old Senior Credit Facility) and those
that are described or contemplated by the Final Offering Memorandum or
those that do not materially affect the value of such property and do
not interfere with the use made and proposed to be made of such
property by the Company and the Subsidiaries. Any real property and
buildings held under lease by the Company and the Subsidiaries are held
by them under valid, subsisting and enforceable lease with such
exceptions which do not have a Material Adverse Effect and do not
interfere with the use made and proposed to be made of such real
property and buildings by the Company and the Subsidiaries.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with all necessary corporate power and authority to own
its properties and to conduct its business as described in the Final
Offering Memorandum. The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
property, or conducts any business, so as to require such qualification
(except where the failure to so qualify, singly or in the aggregate
with all other such failures, would not have a Material Adverse
Effect). Each of the Company's subsidiaries (the "SUBSIDIARIES") is
listed on SCHEDULE I hereto. Except as described in the Final Offering
Memorandum, each of the Subsidiaries is wholly owned directly or
indirectly by the Company. Each of the Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, with all necessary
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corporate power and authority to own its properties and conduct its
business as described in the Final Offering Memorandum. Each of the
Subsidiaries has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases property, or conducts any
business, so as to require such qualification (except where the failure
to so qualify, singly or in the aggregate with all other such failures,
would not have a Material Adverse Effect).
(e) The Company had at the date indicated in the Final
Offering Memorandum an authorized issued and outstanding capitalization
as set forth in the column entitled "Actual" under the caption
"Capitalization" as set forth in the Final Offering Memorandum and,
based on the assumptions stated in the Final Offering Memorandum, the
Company would have had on the date indicated the adjusted
capitalization as set forth in the column entitled "As Adjusted" under
the caption "Capitalization" as set forth in the Final Offering
Memorandum. Except as described in each Memorandum, there are no
outstanding options, warrants, or other rights calling for the issuance
of, and there are no commitments, plans, or arrangements to issue, any
shares of capital stock of the Company or any security convertible or
exchangeable or exercisable for capital stock of the Company. All of
the issued and outstanding shares of capital stock of each Subsidiary
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned by the Company free and clear of all
Liens, except for Liens arising under the Old Senior Credit Facility,
which shall be released concurrently with the Offering. There are no
outstanding options, warrants or other rights to acquire, or
instruments convertible into or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock of
any Subsidiary.
(f) This Agreement has been duly authorized, executed and
delivered by the Company and each Guarantor and (assuming due
authorization, execution and delivery by the Initial Purchasers) is a
legally valid and binding agreement of the Company and each Guarantor,
enforceable against the Company and each such Guarantor in accordance
with its terms, except that (i) the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer 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) rights to indemnity may be limited by state or federal
laws relating to securities and regulations or by policies underlying
such laws and regulations.
(g) The Indenture has been duly authorized by the Company and
each Guarantor and, when executed and delivered by the Company and each
Guarantor on the Delivery Date (assuming due authorization, execution
and delivery by the Trustee), will be a legally valid and binding
agreement of the Company and each Guarantor, enforceable against the
Company and each such Guarantor in accordance with its terms, except
that (i) the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
or other
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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 Indenture will conform in all
material respects to the description thereof in the Final Offering
Memorandum.
(h) The Notes have been duly and validly authorized by the
Company, and, when executed and authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, will be
legally valid and binding obligations of the Company, entitled to the
benefits of the Indenture and enforceable against the Company in
accordance with their terms, except that (i) the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer 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 considered in a proceeding in
equity or at law). The Notes will conform in all material respects to
the description thereof contained in the Final Offering Memorandum.
(i) The Exchange Notes and the Private Exchange Notes have
been duly and validly authorized by the Company, and, when executed,
authenticated and delivered in accordance with the terms of the
Indenture and the Registration Rights Agreement, will be legally valid
and binding obligations of the Company, entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms, except that (i) the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer 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 considered in a proceeding in
equity or at law).
(j) The Guarantees have been duly and validly authorized by
each Guarantor, and, when the Indenture is duly executed and delivered
by the Company and each Guarantor on the Delivery Date, will be legally
valid and binding obligations of each such Guarantor, enforceable
against each such Guarantor in accordance with its terms, except that
(i) the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer 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 considered
in a proceeding in equity or at law).
(k) The Registration Rights Agreement has been duly and
validly authorized by the Company and each Guarantor and, when executed
and delivered by the Company and each Guarantor on the Delivery Date
(assuming due authorization, execution and delivery by the Initial
Purchasers), will be a legally valid and binding agreement of the
Company and each such Guarantor, enforceable against the Company and
each such Guarantor in accordance with its terms, except that (i) the
enforceability thereof may be
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limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer 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 considered in a proceeding in
equity or at law) and (iii) rights to indemnity may be limited by state
or federal laws and regulations relating to securities or by policies
underlying such laws and regulations. The Registration Rights Agreement
will conform in all material respects to the description thereof
contained in the Final Offering Memorandum.
(l) The execution, delivery and performance by the Company of
the Offering Documents and the consummation of the Transactions
contemplated thereby will not (i) conflict with, or result in a breach
or violation of, any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, license, permit,
loan agreement, lease or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which any of them
or any of their respective properties or assets is bound or is subject,
(ii) violate any provision of the certificate of incorporation or the
by-laws of the Company or any of the Subsidiaries or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of the Subsidiaries or any
of their properties or assets, or (iii) result in or require the
creation or imposition of any Lien, upon or with respect to any of the
properties of the Company or any of the Subsidiaries, except pursuant
to the terms of the Indenture. No consent, approval, authorization,
order, registration or qualification of or with any court of
governmental agency or body is required for the issue and sale of the
Notes or the consummation of the other Transactions, except such
consents, approvals, authorizations, registrations or qualifications as
(x) may be required under state securities or Blue Sky laws in
connection with the offer and sale of the Notes, (y) have been obtained
and are in full force and effect or (z) as contemplated in the
Registration Rights Agreement.
(m) There are no legal or governmental proceedings pending to
which the Company or any of the Subsidiaries is a party or of which any
of their respective properties or assets is the subject which, if
determined adversely, could reasonably be expected, singly or in the
aggregate, to have a Material Adverse Effect. To the Company's
knowledge, no such proceedings are threatened or contemplated by any
governmental agency or body or any other person.
(n) The Company and the Subsidiaries have all material
licenses, permits and other approvals or authorizations of and from
governmental agencies and bodies ("PERMITS") as are necessary under
applicable law to own their respective properties and to conduct their
respective businesses in the manner now being conducted and as proposed
to be conducted as described in the Final Offering Memorandum. The
Company and the Subsidiaries have fulfilled and performed all of their
respective obligations with respect to such Permits, and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or result in any other material
impairment of the rights of the holder of any such Permits.
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(o) Each of Ernst & Young LLP, Xxxxxxxx & Touche LLP and
Coopers & Xxxxxxx LLP who have certified certain financial statements
of the Company and other entities in the Final Offering Memorandum, are
independent public accountants under rule 101 of AICPA's Code of
Professional Conduct and its interpretation and rulings.
(p) The consolidated financial statements included in the
Final Offering Memorandum present fairly in all material respects the
financial condition, the results of operations and the cash flows of
the entities shown as of the dates and for the periods therein
specified in conformity with generally accepted accounting principles
("GAAP") consistently applied throughout the periods involved, except
as otherwise stated therein. The unaudited PRO FORMA financial
statements included in the Final Offering Memorandum comply in all
material respects with the applicable accounting requirements of the
Securities Act and in the Company's opinion, the assumptions used in
the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions or circumstances
referred to therein.
(q) There is no presently existing dispute or controversy
between the Company or any of the Subsidiaries and any of their
respective employees which has had or is likely to have, and the
Company has no reason to believe that the relationship of the Company
and the Subsidiaries with their unions or employees is likely to have,
a Material Adverse Effect.
(r) The Company and the Subsidiaries own or possess adequate
patents, patent rights, inventions, trademarks, service marks, trade
names and copyrights necessary to conduct their business as presently
conducted and as proposed to be conducted, as described in the Final
Offering Memorandum. Neither the Company nor any of the Subsidiaries
has received any notice of infringement of or conflict with asserted
rights of others with respect to any material patent, patent rights,
inventions, trademarks, service marks, trade names or copyrights.
(s) Neither the Company nor any of the Subsidiaries is in
violation of any provision of their respective certificate of
incorporation, by-laws or other corporate governance documents. The
Company and each of the Subsidiaries is in compliance with all laws,
rules, regulations, orders, judgments, writs and decrees applicable to
them other than those which, singly or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(t) Assuming consummation of the Transactions, no default
exists, and no event has occurred which, with notice or lapse of time,
or both, would constitute a default in the due performance and
observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, license, permit, loan agreement, lease or
other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their
respective properties or assets is bound or is subject, which default,
singly or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
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(u) The Company and the Subsidiaries have timely filed all
federal income and other material tax returns and notices. The Company
has no knowledge, or any reasonable grounds to know, of any tax
deficiencies which would have a Material Adverse Effect. The Company
and its Subsidiaries have paid all federal, state, local and foreign
taxes of any nature which are shown on its returns to be due, in each
case except as may be set forth or adequately reserved for in the
financial statements included in each Memorandum in accordance with
GAAP. The amounts currently set up as provisions for taxes or otherwise
by the Company and the Subsidiaries on their books and records are
sufficient for the payment of all their unpaid federal, foreign, state,
county and legal taxes accrued through the dates as of which they
relate, and for which the Company and the Subsidiaries may be liable in
their own right, or as a transferee of the assets of, or as successor
to any other corporation, association, partnership, joint venture or
other entity.
(v) Since the date as of which information is given in the
Preliminary Offering Memorandum through the date hereof, and except as
may otherwise be disclosed in the Final Offering Memorandum, neither
the Company nor any of the Subsidiaries has sold or otherwise disposed
of any capital stock of the Company or the Subsidiaries, directly or
indirectly.
(w) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and
to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(x) The Company, immediately before and after the consummation
of the Transactions, will be Solvent. As used herein, the term
"SOLVENT" means, with respect to the Company on a particular date (i)
the fair market value of the assets of the Company is greater than the
total amount of liabilities (including contingent liabilities) of the
Company, (ii) the present fair saleable value of the assets of the
Company is greater than the amount that will be required to pay the
probable liabilities of the Company on its debts as they become
absolute and matured, (iii) the Company is able to realize upon its
assets and pay its debts and other liabilities, including contingent
obligations, as they mature and (iv) such entity does not have an
unreasonably small capital, so as to impair the Company's ability to
conduct its business and meet its obligations.
(y) Neither the Company nor any of its affiliates (as defined
in Rule 501(b) of Regulation D under the Securities Act, an
"AFFILIATE") has directly, or through any agent, (i) sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect of,
any security (as defined in the Securities Act) which is or will be
integrated with the sale of the Notes in a manner that would require
the registration under the
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Securities Act of the Notes or (ii) engaged in any form of general
solicitation or general advertising in connection with the offering of
the Notes (as those terms are used in Regulation D under the Securities
Act) or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
(z) Neither the Company nor any of the Subsidiaries is, or
will be after giving effect to the Offering, the application of the
proceeds therefrom and the Transactions, 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 (the
"INVESTMENT COMPANY ACT").
(aa) Assuming the representations and warranties of the
Initial Purchasers are true and correct, it is not necessary in
connection with the offer, sale and delivery of the Notes to the
Initial Purchasers in the manner contemplated by this Agreement to
register the Notes under the Securities Act or to qualify the Indenture
under the Trust Indenture Act of 1939, as amended.
(bb) The Company and the Subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals could not reasonably be expected individually or
in the aggregate to result in a Material Adverse Effect.
(cc) When the Notes are issued and delivered pursuant to this
Agreement, the Notes will not be of the same class (within the meaning
of Rule 144A under the Securities Act) as securities of the Company
which are listed on a national securities exchange registered under
Section 6 of the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder
(collectively, the "EXCHANGE ACT"), or quoted in a U.S. automated
inter-dealer quotation system.
(dd) The Company and each of its Subsidiaries maintains
insurance covering their properties, operations, personnel and
businesses. Such insurance insures against such losses and risks as are
adequate in accordance with customary industry practice to protect the
Company and the Subsidiaries and their businesses. Neither the Company
nor any of its Subsidiaries has received notice from any insurer or
agent of such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance.
All such insurance is outstanding and duly in force on the date hereof
and will be outstanding and duly in force on the Delivery Date.
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2. On the basis of the representations and warranties
contained in this Agreement, and subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to the several Initial Purchasers,
and the Initial Purchasers agree, severally, to purchase from the Company, at a
purchase price of 97% of the principal amount thereof (such purchase price being
net of the Initial Purchasers' discount), (i) $50,000,000 aggregate principal
amount of Notes, in the case of Xxxxxxxx Xxxxxxxx & Co. Incorporated, (ii)
$42,500,000 aggregate principal amount of Notes, in the case of BT Securities
Corporation, and (iii) $7,500,000 aggregate principal amount of Notes, in the
case of XxXxxxxx & Company Securities, Inc.
3. Certificates in definitive form for the Notes to be
purchased by you hereunder shall be delivered by or on behalf of the Company to
you (the Initial Purchasers) for your account against payment by you of the
purchase price therefor by wire transfer of immediately available funds to an
account or accounts specified by the Company by written notice to the Initial
Purchasers (given at least two business days prior to the Delivery Date), for
the purchase price of the Notes being sold by the Company in New York, New York,
at 9:30 A.M., New York City time, on November 27, 1996, or at such other time,
date and place as you and the Company may agree upon in writing, such time and
date being herein called the "DELIVERY DATE."
Certificates for the Notes so to be delivered will be in good
delivery form, and in such denominations and registered in such names as you may
request not less than 48 hours prior to the Delivery Date. Such certificates
will be made available for checking and packaging in New York, New York, at
least 24 hours prior to the Delivery Date.
4. The Initial Purchasers acknowledge that the Notes have not
been registered under the Securities Act and may not be sold except pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act or pursuant to an effective registration
statement under the Securities Act. Accordingly, the Initial Purchasers propose
to offer the Notes for resale only to certain investors (as further described in
subparagraph (a) of this Paragraph 4) upon the terms and conditions set forth in
this Agreement and the Final Offering Memorandum at the purchase price initially
set forth on the cover page of the Final Offering Memorandum. Each of the
Initial Purchasers hereby severally represents and warrants to, and agrees with
the Company, that:
(a) It is an institutional "accredited investor" (as defined
in 501(a)(1), (2), (3) or (7) under the Securities Act) and will offer
or sell the Notes only to persons who it reasonably believes are
"qualified institutional buyers" within the meaning of Rule 144A in
transactions meeting the requirements of Rule 144A and to a limited
number of other institutional "accredited investors" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act) that, prior
to their purchase of the Notes, deliver to the Initial Purchasers a
letter substantially in the form attached to each Memorandum as ANNEX
A; and
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(b) It has not and will not offer or sell the Notes by any
form of general solicitation or general advertising, including but not
limited to, the methods described in Rule 502(c) of Regulation D under
the Securities Act.
5. In consideration of the agreements of the several Initial
Purchasers contained in this Agreement, the Company and the Guarantors covenant
and agree:
(a) To furnish to you, without charge, as many copies of the
Final Offering Memorandum and any supplements and amendments thereto as
you may reasonably request.
(b) Before amending or supplementing any Memorandum subsequent
to the execution of this Agreement, to furnish to you a copy of each
such proposed amendment or supplement and not to use any such proposed
amendment or supplement to which you reasonably object.
(c) If, at any time prior to the completion of the
distribution of the Notes to persons that are not your Affiliates (as
determined by you), any event occurs as a result of which the Final
Offering Memorandum would include any untrue statement of a material
fact, or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if for any other reason it is necessary at any time
to amend or supplement the Final Offering Memorandum to comply with
applicable law, to notify you thereof and to prepare, at the expense of
the Company, an amendment or supplement to the Final Offering
Memorandum that corrects such statement or omission or effects such
compliance.
(d) To endeavor to qualify the Notes for offer and sale under
the securities or Blue Sky laws of such jurisdictions in the United
States as you shall reasonably request; PROVIDED, HOWEVER, that neither
the Company nor any Guarantor shall be obligated 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 in which it is not so
qualified or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject. The
Company and the Guarantors will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have
been qualified as above provided. The Company and the Guarantors will
also supply you with such information as is necessary for the
determination of the legality of the Notes in such jurisdictions as you
may request.
(e) Not to, and will not permit any of their Affiliates to,
sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act) which could
be integrated with the sale of the Notes in a manner which would
require the registration under the Securities Act of the Notes.
(f) Except following the effectiveness of the Exchange Offer
Registration Statement (as defined in the Registration Rights
Agreement), not to solicit any offer to buy or offer to sell the Notes
by means of any form of general solicitation or general
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advertising (as these terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act.
(g) While any of the Notes remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, to make available, upon request, to any holder or
beneficial owner of outstanding Notes the information specified in Rule
144A(d)(4) under the Securities Act, unless the Company is then subject
to Section 13 or 15(d) of the Exchange Act.
(h) To use their best efforts to permit the Notes to be
designated PORTAL securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers,
Inc. relating to trading in the PORTAL Market and to permit the Notes
to be eligible for clearance and settlement through the Depository
Trust Company.
(i) For a period of five years following the Delivery Date, to
furnish to the Initial Purchasers copies of any annual reports,
quarterly reports and current reports filed with the Commission on
Forms 10-K, 10-Q and 8-K, or such other similar forms as may be
designated by the Commission, and such other documents, reports and
information as shall be furnished by the Company and the Guarantors to
the Trustee or to the holders of the Notes pursuant to the Indenture.
(j) Not to, and will not permit any of their Affiliates to,
resell any Notes that have been acquired by any of them.
(k) To use the proceeds from the sale of the Notes in the
manner set forth in the Final Offering Memorandum and in a manner that
will not result in the Company becoming an "investment company" or an
entity "controlled by" an investment company within the meaning of the
Investment Company Act, and the rules and regulations of the
Commission thereunder.
(l) Not to, and will cause each of their Affiliates not to,
offer, sell, contract to sell or grant any option to purchase or
otherwise transfer or dispose of any debt security, or any security
convertible into or in exchange for, any such debt security of the
Company or any such Subsidiary (other than (x) any private loan, credit
or financing agreement with a bank or similar institution, (y) the
Notes, the Exchange Notes and the Private Exchange Notes and (z) as
contemplated in the Transactions), for a period of 180 days after the
date of this Agreement, without your prior written consent.
6. The Company and the Guarantors covenant and agree, jointly
and severally, to pay or cause to be paid: (i) the fees, disbursements and
expenses of counsel and accountants for the Company and the Trustee and its
counsel, and all other expenses, in connection with the preparation and printing
of each Memorandum and amendments and supplements thereto and the furnishing of
copies thereof, including charges for mailing, air
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freight and delivery and counting and packaging thereof to the Initial
Purchasers and dealers; (ii) all expenses in connection with the qualification
of the Notes for offering and sale under state securities laws as provided in
Section 5(d) hereof, including disbursements and expenses for counsel for the
Initial Purchasers in connection with such qualification and in connection with
Blue Sky surveys; (iii) any fees charged by rating agencies for the rating of
the Notes; (iv) the costs and expenses in connection with the preparation,
issuance and delivery of the Notes; and (v) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 6, including the fees, if any,
incurred in connection with the admission of the Notes for trading in any
appropriate market systems, the cost of the Company's personnel and other
internal costs, the cost of printing and engraving the certificates representing
the Notes and all expenses and property, excise and similar taxes incident to
the sale and delivery of the Notes to be sold by the Company to the Initial
Purchasers hereunder; PROVIDED that such costs and expenses shall not (except as
provided in (ii) above) include fees and expenses of counsel to the Initial
Purchasers.
7. Your obligations hereunder shall be subject, in your
discretion, to the following additional conditions:
(a) The representations and warranties of the Company and the
Guarantors contained in this Agreement shall be true and correct as of
the date hereof and as of the Delivery Date. The Company and the
Guarantors shall have performed all covenants and agreements and
satisfied all conditions on their part to be performed or satisfied
hereunder at or prior to the Delivery Date.
(b) The sale of the Notes by the Company hereunder shall not
be enjoined (temporarily or permanently) on the Delivery Date.
(c) Subsequent to the date as of which information is given in
the Final Offering Memorandum, except in each case as described in or
as contemplated by the Final Offering Memorandum, the Company and the
Subsidiaries shall not have incurred any liabilities or obligations,
direct or contingent, that are material to the Company and the
Subsidiaries or entered into any transactions that are material to the
business, condition (financial or other), results of operations or
prospects of the Company or any of the Subsidiaries.
(d) Subsequent to the date of this Agreement and prior to the
Delivery Date, there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities, including the Notes, by any "nationally
recognized statistical rating organization" as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act.
(e) You shall have received on the Delivery Date certificates
of the Company and the Guarantors dated the Delivery Date and signed
by, the Chief Executive Officer
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or the President and by the Chief Financial Officer of the Company and
each Guarantor, to the effect set forth in clauses (a), (b), (c) and
(d) above, as applicable.
(f) Xxxxxxx Xxxxxxx & Xxxxxx P.L.L., counsel to the Company
and the Guarantors, shall have furnished to you their written opinion,
dated the Delivery Date, in the form attached hereto as EXHIBIT B.
(g) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the Initial
Purchasers, shall have furnished to the Initial Purchasers a written
opinion, dated the Delivery Date, in form and substance satisfactory to
you, and such counsel shall have received such papers and information
as they may reasonably request to enable them to pass upon the matters
covered by such opinion.
(h) You shall have received on each of the dates hereof and
the Delivery Date a letter, dated the date hereof or the Delivery Date,
as the case may be, in form and substance reasonably satisfactory to
you, from each of Xxxxx & Young LLP, Deloitte & Touche LLP, and Xxxxxxx
& Xxxxxxx LLP.
(i) (i) Since the date of this Agreement, neither the Company
nor any of the Subsidiaries shall have sustained any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree; and (ii)
since the respective dates as of which information is given in the
Final Offering Memorandum, there shall not have been any change in the
capital stock or short-term debt or long-term debt of the Company or
any of the Subsidiaries nor any other change, which could reasonably be
expected to have a Material Adverse Effect otherwise than as set forth
or contemplated in the Final Offering Memorandum, the effect of which,
in any such case described in clause (i) or (ii), is in your judgment
so material and adverse as to make it impracticable or inadvisable to
proceed with the Offering or the delivery of the Notes on the terms and
in the manner contemplated in the Final Offering Memorandum.
(j) Subsequent to the execution and delivery of this
Agreement, (i) there shall have been no declaration of war by the
Government of the United States; (ii) there shall not have occurred any
material adverse change in the financial or securities markets in the
United States or in political, financial or economic conditions in the
United States or any outbreak or material escalation of hostilities or
other calamity or crisis, the effect of which is such as to make it, in
the judgment of the Initial Purchasers, impracticable to market the
Notes or to enforce contracts for the resale of Notes and (iii) no
event shall have occurred resulting in (A) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange
or the Nasdaq National Market being suspended or limited or minimum or
maximum prices being generally established on such exchange or market,
or (B) additional material governmental restrictions, not in force on
the date of this Agreement, being imposed upon trading in securities
generally by such exchange or by order of the Commission or any court
or
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other governmental authority or (C) a general banking moratorium being
declared by either Federal or New York authorities.
(k) The Company and each Guarantor shall have furnished or
caused to be furnished to you at the Delivery Date any additional
certificates signed by the officers of the Company and each Guarantor,
as the case may be, satisfactory to you as to such matters as you may
reasonably request.
(l) The Company, the Guarantors and the Initial Purchasers
shall have entered into the Registration Rights Agreement.
(m) All of the Transactions (other than the Offering, the
application of the proceeds therefrom and the Xxxxxxxxxx acquisition)
shall have been consummated in accordance with the Transaction
Documents.
8. (a) The Company and each Guarantor agrees, jointly and
severally, to indemnify and hold harmless the Initial Purchasers against any
losses, claims, damages or liabilities ("LOSSES"), joint or several, to which
any of the Initial Purchasers may become subject, under the Securities Act, the
Exchange Act, any other federal or state statutory law or regulation, at common
law or otherwise, insofar as such Losses (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 either Memorandum, or the omission or alleged
omission to state therein a material fact necessary to make the statements made
therein not misleading, and will reimburse the Initial Purchasers for any legal
or other expenses reasonably incurred by the Initial Purchasers in connection
with investigating, preparing to defend, defending or appearing as a third-party
witness in connection with any such action or claim; PROVIDED, HOWEVER, that the
Company and the Guarantors shall not be liable to any Initial Purchaser in any
such case to the extent that any such Loss arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
relating to such Initial Purchaser made in either Memorandum in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of such Initial Purchaser expressly for use therein; PROVIDED, FURTHER
HOWEVER, that the foregoing indemnification with respect the Preliminary
Offering Memorandum shall not inure to the benefit of any Initial Purchaser if a
copy of the Final Offering Memorandum (as then amended or supplemented) was not
sent or given by or on behalf of the Initial Purchasers to the person asserting
any Losses, if required by law so to have been delivered, and if the Final
Offering Memorandum (as amended or supplemented) would have cured the defect
giving rise to such Losses.
(b) In addition to any obligations of the Company and the
Guarantors under Section 8(a), the Company and each Guarantor agrees that it
shall perform its indemnification obligations under Section 8(a) (as modified by
the last paragraph of this Section 8(b)), with respect to counsel fees and
expenses and other expenses reasonably incurred by making payments within 45
days to the Initial Purchasers in the amount of the statements of the Initial
Purchasers' counsel or other statements which shall be forwarded by the Initial
Purchasers, and that it shall make such payments notwithstanding the absence of
a judicial determination as to the propriety and enforceability of the
obligation to reimburse the Initial Purchasers for such
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16
expenses and the possibility that such payments might later be held to have been
improper by a court and a court orders return of such payments.
The indemnity agreement in Section 8(a) shall be in addition
to any liability which the Company or any Guarantor may otherwise have and shall
extend upon the same terms and conditions to each person, if any, who controls
any of the Initial Purchasers within the meaning of the Securities Act or the
Exchange Act, and to the officers, directors, employees, representatives and
agents of any of the Initial Purchasers or any such control person.
(c) Each of the Initial Purchasers will, severally and not
jointly, indemnify and hold harmless the Company and the Guarantors against any
Losses to which the Company or the Guarantors may become subject, under the
Securities Act, the Exchange Act, any federal or state statutory law or
regulation, at common law or otherwise, insofar as such Losses (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in either Memorandum, 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 not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in either Memorandum in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such Initial
Purchaser relating to such Initial Purchaser expressly for use therein, and will
reimburse the Company and the Guarantors for any legal or other expenses
reasonably incurred by the Company or the Guarantors in connection with
investigating, preparing to defend or defending any such action or claim.
The indemnity agreement in this Section 8(c) shall be in
addition to any liability which the Initial Purchasers may otherwise have and
shall extend, upon the same terms and conditions, to each officer, director,
employee, representative and agent of the Company and the Guarantors and to each
person, if any, who controls the Company or any Guarantor within the meaning of
the Securities Act or the Exchange Act.
(d) Promptly after receipt by an indemnified party under
Section 8(a) or 8(c) of notice of the commencement of any action (including any
governmental investigation), such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party under Section 8(a) or 8(c)
except to the extent it was unaware of such action and has been prejudiced in
any material respect by such failure or from any liability which it may have to
any indemnified party otherwise than under such Section 8(a) or 8(c). In case
any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to, such indemnified
party, and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof,
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the indemnifying party shall not be liable to such indemnified party under such
subsection for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. If, however, (i) the indemnifying party has authorized
the employment of counsel for the indemnified party at the expense of the
indemnifying party or (ii) an indemnified party shall have reasonably concluded
that representation of such indemnified party and the indemnifying party by the
same counsel would be inappropriate under applicable standards of professional
conduct due to actual or potential differing interests between them and the
indemnified party so notifies the indemnifying party in writing, setting forth
the reasons therefor, then the indemnified party shall be entitled to employ
counsel different from counsel for the indemnifying party, at the expense of the
indemnifying party and the indemnifying party shall not have the right to assume
the defense of such indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses or 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
Xxxxxxxx Xxxxxxxx & Co. Incorporated in the case of parties indemnified pursuant
to Section 8(a) and by the Company in the case of parties indemnified pursuant
to Section 8(c).
The Company shall not be liable for any settlement of any such
action or proceeding effected without its consent (not to be unreasonably
withheld) and if settled with its written consent or if there is a final
judgment for the plaintiff, the Company agrees to indemnify and hold harmless
the Initial Purchasers and each other person referred to in Section 8(b) to the
extent provided herein. Without limiting the generality of the foregoing, no
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any such indemnified party is or has been threatened to be made a party
and to which the indemnity herein is applicable; PROVIDED, HOWEVER, that an
indemnifying party may effect such a settlement without the consent of the
indemnified party if such settlement includes an unconditional release of such
indemnified party from all liability for claims that are the subject matter of
such proceeding or the indemnifying party indemnifies the indemnified party in
writing and posts a bond for an amount equal to the maximum liability for all
such claims as contemplated above.
(e) In order to provide for just and equitable contribution
under the Securities Act in any case in which (i) any indemnified party makes
claim for indemnification pursuant to Section 8(a) hereof, but is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that Section 8(a) provides for indemnification in such
case or (ii) contribution under the Securities Act may be required on the part
of the Initial Purchasers or any such controlling person in circumstances for
which indemnification is provided under Section 8(c), then, and in each such
case, the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, severally and not jointly, shall contribute to
the aggregate Losses to which they may be subject as an indemnifying party
hereunder (after contribution from others) in such proportion so that the
Initial Purchasers are responsible for the portion represented by the
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18
percentage that the total discounts paid to the Initial Purchasers appearing on
the cover page of the Final Offering Memorandum bears to the total proceeds to
the Company (net of discounts of the Initial Purchasers) appearing thereon and
the Company and the Guarantors are responsible for the remaining portion;
PROVIDED, HOWEVER, that, in any such case, (x) no Initial Purchaser shall be
required to contribute any amount in excess of such Initial Purchaser's discount
applicable to the Notes and (y) no person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to a contribution from any person who was not guilty of such
fraudulent misrepresentation. The amount paid or payable by the Initial
Purchasers result of this Section 8(e) shall be deemed to include any legal or
other expenses reasonably incurred preparing to defend or defending any such
claim.
(f) Promptly after receipt by any party to this Agreement of
notice of the commencement of any action, suit or proceeding, such party will,
if a claim for contribution in respect thereof is to be made against another
party (the "CONTRIBUTING PARTY"), notify the contributing party of the
commencement thereof; but the omission so to notify the contributing party will
not relieve it from any liability which it may have to any other party for
contribution under the Securities Act, the Exchange Act or otherwise, except to
the extent it was unaware of such action and has been prejudiced in any material
respect by such failure or from any liability which it may have to any other
party other than for contribution under the Securities Act, the Exchange Act or
otherwise. In case any such action, suit or proceeding is brought against any
party, and such party notifies a contributing party of the commencement thereof,
the contributing party will be entitled to participate therein with the
notifying party and any other contributing party similarly notified.
9. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Guarantors and the Initial
Purchasers, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of the Initial Purchasers or any controlling person of the
Initial Purchasers, the Company, the Guarantors, or an officer or director or
controlling person of the Company or any Guarantor and shall survive delivery of
and payment for the Notes.
10. The obligations of the Initial Purchasers hereunder may be
terminated by the Initial Purchasers by notice given to and received by the
Company prior to delivery of and payment for the Notes, if, prior to that time,
any of the events described in Section 7(d), 7(i), or 7(j) shall have occurred
or if the Initial Purchasers shall decline to purchase the Notes for any other
reason permitted under this Agreement.
11. If (a) the Company shall fail to tender the Notes for
delivery to the Initial Purchasers for any reason permitted under this Agreement
or (b) the Initial Purchasers shall decline to purchase the Notes for any reason
permitted under this Agreement (including the termination of this Agreement
pursuant to Section 10), the Company shall reimburse the Initial Purchasers for
the fees and expenses of their counsel and for such other out-of-pocket expenses
as shall have been incurred by them in connection with this Agreement and the
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19
proposed purchase of the Notes, and upon demand, the Company shall pay the full
amount thereof to the Initial Purchasers.
12. All statements, requests, notices and agreements hereunder
shall be in writing or by written telecommunication, and shall be sufficient in
all respects if delivered or sent by registered mail, if to the Initial
Purchasers, to them in care of Xxxxxxxx Xxxxxxxx & Co. Incorporated at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: High Yield Department; and
if to the Company to Hawk Corporation at the address of the Company set forth in
the Final Offering Memorandum, Attention: Chief Executive Officer.
13. This Agreement shall be binding upon, and inure solely to
the benefit of, you, the Company, the Guarantors and, to the extent provided in
Section 8 and Section 9 hereof, controlling persons, officers, directors,
employees, representatives and agents referred to in Section 8, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Notes from the Initial Purchasers shall be
deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (without giving effect to
principles of conflicts of law).
16. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
17. Each Guarantor, by its execution and delivery of a
counterpart to this Agreement, agrees that it shall be jointly and severally
liable for all obligations and liabilities of the Company hereunder.
20
[SIGNATURE PAGE]
If the foregoing is in accordance with your understanding,
please sign and return to us a counterpart hereof, and upon the acceptance
hereof by you, this letter and such acceptance hereof shall constitute a binding
agreement among you, the Company and the Guarantors.
Very truly yours,
HAWK CORPORATION
By: /S/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
FRICTION PRODUCTS CO.
By: /S/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
HAWK BRAKE, INC.
By: /S/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
XXXXX METAL STAMPINGS, INC.
By: /S/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
XXXXXX, INC.
By: /S/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
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X.X. XXXXXXX HOLDINGS, INC.
By: /S/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
XXXXXXX FRICTION PRODUCTS U.K.
CORP.
By: /S/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
X.X. XXXXXXX CORP.
By: /S/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
XXXXXXXXXX PRODUCTS CORPORATION
By: /S/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice Chairman
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Accepted as of the date hereof:
XXXXXXXX XXXXXXXX & CO.
INCORPORATED
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
BT SECURITIES CORPORATION
By: /s/ X. Xxxx
-------------------------------
Name: X. Xxxx
Title: M.D.
XxXXXXXX & COMPANY SECURITIES, INC.
By: /s/ Xxxxxxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Managing Director
23
ANNEX I TO
PURCHASE AGREEMENT
------------------
Subsidiaries of the Company
---------------------------
Friction Products Co.
Hawk Brake, Inc.
Xxxxx Metal Stampings, Inc.
Xxxxxx, Inc.
X.X. Xxxxxxx Holdings, Inc.
X.X. Xxxxxxx Corp.
Xxxxxxx Friction Products U.K. Corp.
X.X. Xxxxxxx S.p.A.
The X.X. Xxxxxxx Company of Canada, Ltd.
Xxxxxxxxxx Products Corporation
