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Exhibit 4.6
MAXXIM MEDICAL, INC.
98,473 Units consisting of
$98,473,000 Aggregate Principal Amount at Maturity (Exclusive of PIK Notes)
of Senior Discount Notes due 2010
of Maxxim Medical, Inc.
and
144,132 Warrants to Purchase an aggregate of 144,132 shares of common stock
of Maxxim Medical, Inc.
PURCHASE AGREEMENT
November 12, 1999
GS Mezzanine Partners, L.P.
GS Mezzanine Partners Offshore, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Maxxim Medical, Inc., a Texas corporation ("Holdings") and the parent
of Maxxim Medical Group, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell 98,473 units (the "Units"), each Unit consisting of $1,000 in
principal amount at maturity of Holdings' Senior Discount Notes due 2010 (such
Notes, inclusive of any PIK Notes as defined in the Indenture referred to
below, the "Holdings Notes") and 1.46367 warrants (a "Warrant") to purchase,
per whole Warrant, one share of common stock of Holdings, par value $0.001 per
share ("Holdings Common Stock"), at an exercise price of $0.01 per share. The
Holdings Notes will be issued pursuant to an Indenture to be dated as of
November 12, 1999 (the "Indenture"), between Holdings and Wilmington Trust
Company, as trustee (the "Trustee"). The Warrants will be issued pursuant to a
Warrant Agreement, dated as of November 12, 1999 (the "Warrant Agreement"),
between Holdings and the Purchasers (as defined herein). Holdings hereby
confirms its agreement with GS Mezzanine Partners, L.P. and GS Mezzanine
Partners Offshore, L.P. (collectively, the "Purchasers") concerning the
purchase of the Units from Holdings by the Purchasers.
The Units will be offered and sold to the Purchasers without being
registered under the Securities Act of 1933, as amended (the "Securities Act"),
in reliance upon an exemption
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therefrom. Holdings has prepared a private placement memorandum dated November
12, 1999 (the "Private Placement Memorandum") setting forth information
concerning the Company but which was not prepared for the purpose of offering
and selling the Units pursuant hereto. Copies of the Private Placement
Memorandum have been delivered to the Purchasers. Any references herein to the
Private Placement Memorandum shall be deemed to include all amendments and
supplements thereto, unless otherwise noted. Holdings hereby confirms that it
has authorized the Purchasers to rely upon the information contained in the
Private Placement Memorandum in connection with the sale of the Units to the
Purchasers in accordance with Section 2 (it being acknowledged that the Private
Placement Memorandum does not contain a full description of the Holdings Notes
and the Warrants, was not prepared for the purpose of offering and selling the
Units pursuant hereto and may not address specific risks associated with the
purchase and ownership thereof).
Holders of the Units (including the Purchasers and their direct and
indirect transferees) will be entitled to the benefits of an Exchange and
Registration Rights Agreement, substantially in the form attached hereto as
Exhibit A (the "Registration Rights Agreement"), pursuant to which Holdings
will, at the request of the holders holding not less than 25% in aggregate
principal amount at maturity of the Holdings Notes at any time after the third
anniversary of the Closing Date, agree to file with the Securities and Exchange
Commission (the "Commission") (a) a registration statement under the Securities
Act (the "Exchange Offer Registration Statement") registering an issue of
senior discount notes (the "Exchange Notes") which are identical in all
material respects to the Holdings Notes (except that the Exchange Notes will
not contain terms with respect to transfer restrictions) and (b) under certain
circumstances, shelf registration statements pursuant to Rule 415 under the
Securities Act ("Shelf Registration Statements").
Pursuant to or in connection with the Agreement and Plan of Merger (the
"Merger Agreement"), dated as of June 13, 1999, as amended, between Holdings
and Fox Xxxxx Medic Acquisition Corporation ("Fox Xxxxx Maxxim"), a Texas
corporation newly formed by Fox Xxxxx Capital Fund, L.P. (the "Fox Xxxxx
Fund"), as part of the proposed recapitalization (the "Recapitalization") of
Holdings, Fox Xxxxx Maxxim will merge (the "Merger") with and into Holdings,
with Holdings as the surviving corporation in the Merger. Prior to or
simultaneously with the Merger, (a) the Fox Xxxxx Fund and other affiliated
investment funds (collectively, the "Fox Xxxxx Investors"), together with
certain other minority investors (together with the Fox Xxxxx Investors, the
"Investors"), will purchase or will have purchased all the common stock of Fox
Xxxxx Maxxim, with such common stock converting into Holdings' common stock in
the Merger (the "Investor Equity Contribution"), (b) Maxxim Medical, Inc., a
Delaware corporation and a wholly owned subsidiary of Holdings ("Maxxim
Delaware"), will sell to Circon Holdings Corporation (formerly Fox Xxxxx Xxxxxx
Acquisition Corporation), a newly formed Delaware corporation ("Fox Xxxxx
Circon") to be owned by the Investors and the Continuing Shareholders (as
defined herein), all the capital stock of Circon Corporation ("Circon"), its
wholly owned subsidiary (the "Circon Sale"), and (c) Holdings will contribute
all its assets and liabilities (other than those assets and liabilities related
to Holdings' existing credit facilities) to the Company (the "Asset Dropdown").
As part of the Recapitalization, (a) each outstanding share of common stock of
Holdings (other than certain shares held by a group of 10 current shareholders
of
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Holdings (the "Continuing Shareholders")) will be converted into the right to
receive $26.00 in cash (the "Merger Consideration"), and (b) certain options to
purchase the common stock of Holdings will be canceled in return for a cash
payment for each share subject to such options equal to the excess of $26.00
over the exercise price of such options (the "Option Consideration"). The
Recapitalization and related transactions will be funded from the following
sources: (a) an aggregate of up to $262.0 million of borrowings under new
senior secured credit facilities of the Company (the "New Credit Facilities");
(b) at least $110 million from the issuance and sale by the Company and
Holdings of units (the "Opco Units"), each Opco Unit consisting of $1,000 in
principal amount at maturity of the Company's Senior Subordinated Discount
Notes due 2009 (the "Opco Notes") and one warrant (an "Opco Note Warrant") to
purchase .8226 shares of Holdings Common Stock; (c) approximately $50.0 million
from the issuance by Holdings of the Units; (d) $228.0 million in cash proceeds
from the Circon Sale (including the repayment of any intercompany indebtedness
owed by Circon to Maxxim Delaware immediately prior to the Circon Sale); (e)
$131.8 million in cash from the Investor Equity Contribution; and (f) $4.4
million in cash from the sale of new shares of Holdings Common Stock to the
Continuing Shareholders financed from a portion of the Option Consideration
they receive. The Opco Notes will be issued pursuant to an Indenture to be
dated as of November 12, 1999 (the "Opco Indenture"), among the Company, the
Guarantors (as defined in the Opco Indenture and referred to herein as the
"Opco Guarantors") and The Bank of New York, as trustee (the "Opco Trustee").
The Opco Units will be issued by Holdings and the Company pursuant to a
Purchase Agreement, dated as of November 12, 1999 (the "Opco Purchase
Agreement"), among Holdings, the Company and the purchasers named therein (the
"Opco Purchasers"). The Opco Notes will be initially guaranteed on an unsecured
senior subordinated basis by Holdings and each U.S. subsidiary of the Company
listed on the signature pages of the Opco Purchase Agreement. The Opco Note
Warrants will be issued pursuant to a Warrant Agreement (the "Opco Note Warrant
Agreement"), dated as of November 12, 1999, among Holdings and the Opco
Purchasers. Holders of the Opco Units will be entitled to the benefits of an
Exchange and Registration Rights Agreement in the form attached as Annex A to
the Opco Purchase Agreement (the "Opco Registration Rights Agreement"). As part
of the Recapitalization, (a) Holdings and its subsidiaries will repay all their
existing debt, other than any Existing Notes (as defined) not purchased in the
Debt Tender Offer (as defined) and $8.7 million in capital leases, industrial
revenue bonds and other long-term obligations, by (i) repaying all amounts
outstanding under the Third Amended and Restated Credit Agreement, dated
January 4, 1999, among Holdings, Nationsbank, N.A., as agent, The Bank of Nova
Scotia and First Union Bank, as managing agents, and certain other banks named
therein and (ii) consummating a debt tender offer (the "Debt Tender Offer") to
acquire up to $100.0 million in principal amount of Holding's outstanding 10
1/2% Senior Subordinated Notes due 2006 (the "Existing Notes"), with any
Existing Notes not tendered and purchased in the Debt Tender Offer becoming
direct obligations of the Company, and (b) the Company, Holdings, Fox Xxxxx
Circon and Circon will enter into a services agreement (the "Services
Agreement"), pursuant to which Holdings and the Company will provide Circon and
Fox Xxxxx Circon certain services. All the above described transactions,
together with any related transactions, are collectively referred to herein as
the "Transactions."
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Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Private Placement Memorandum. References to
subsidiaries of Holdings and/or the Company give effect to the Circon Sale.
1. Representations, Warranties and Agreements of Holdings. Holdings
represents and warrants to, and agrees with, the Purchasers on and as of the
date hereof that:
(a) The Private Placement Memorandum does not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that (i) Holdings makes no representation or warranty as to information
contained in or omitted from the Private Placement Memorandum in reliance upon
and in conformity with written information relating to the Purchasers furnished
to the Company by on or behalf of any Purchaser specifically for use therein
(the "Purchasers' Information") and (ii) the Purchasers agree and acknowledge
that the Private Placement Memorandum does not fully describe the Holdings
Notes or the Warrants, was not prepared for the purpose of offering and selling
the Units pursuant hereto and may not address specific risks associated with
the purchase and ownership thereof.
(b) Assuming the accuracy of the representations and warranties of
the Purchasers contained in Section 2 and their compliance with the agreements
set forth therein, it is not necessary, in connection with the issuance and
sale of the Units to the Purchasers in the manner contemplated by this
Agreement, to register the Units, the Holdings Notes or the Warrants under the
Securities Act or to qualify the Indenture under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act").
(c) Holdings and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing under
the laws of their respective jurisdictions of incorporation, are duly qualified
to do business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, and have
all power and authority necessary to own or hold their respective properties
and to conduct the businesses in which they are engaged, except where the
failure to so qualify or have such power or authority could not, singularly or
in the aggregate, be reasonably expected to be materially adverse to the
condition (financial or otherwise), results of operations, business, assets or
liabilities of Holdings and its subsidiaries, taken as a whole (a "Material
Adverse Effect"). The Company is the only direct subsidiary of Holdings.
Schedule 2 hereto sets forth a list of all direct and indirect subsidiaries of
the Company.
(d) As of the Closing Date, immediately after giving effect to the
Transactions, (i) the authorized capital stock of Holdings consists of
40,000,000 shares of Holdings Common Stock and 10,000,000 shares of preferred
stock, par value $1.00 per share ("Preferred Stock") (ii) 5,770,704 shares of
Holdings Common Stock and no shares of Preferred Stock have been issued and are
outstanding, (iii) 144,132 Warrants have been issued and are outstanding and
144,132 shares of Holdings Common Stock has been reserved for issuance upon
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exercise of the Warrants, (iv) 144,552 Opco Note Warrants have been issued and
outstanding and 118,908 shares of Holdings Common Stock have been reserved for
issuance upon exercise of the Opco Note Warrants, (v) 1,172,875 shares of
Holdings Common Stock have been reserved for issuance upon exercise of options
issued to management of Holdings under Holdings' 1999 Stock Incentive Plan, and
(vi) no shares of Holdings' capital stock is held by Holdings or its
subsidiaries in its treasury. Schedule 3 hereto sets forth a complete and
accurate description in all material respects of the ownership of the
outstanding capital stock of Holdings on a primary and fully-diluted basis. All
the outstanding shares of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and are owned
directly by Holdings, and the capital stock of the Company conforms in all
material respects to the description thereof contained in the Certificate of
Incorporation of the Company. All the outstanding shares of capital stock of
Holdings have been duly and validly authorized and issued, are fully paid and
non-assessable and the capital stock of Holdings conforms in all material
respects to the description thereof contained in the Articles of Incorporation
of Holdings. When the Units are delivered and paid for pursuant to this
Agreement on the Closing Date, the Warrants will be exercisable for shares of
Holdings Common Stock ("Underlying Shares") in accordance with their terms and
the Underlying Shares initially issuable upon exercise of such Warrants have
been duly and validly authorized and reserved for issuance upon such exercise
and, when issued and paid for in accordance with the terms of the Warrant
Agreement and the Warrants, will be validly issued, fully paid and
non-assessable. As of the Closing Date, all the outstanding capital stock of
the Company and each of its subsidiaries which are Opco Guarantors has been
duly and validly authorized and issued, is fully paid and non-assessable and is
owned directly or indirectly by Holdings and (other than the capital stock of
the Company) by the Company. As of the Closing Date, after giving effect to the
Asset Dropdown, Holdings engages in no business other than holding the
outstanding shares of capital stock of the Company. As of the Closing Date, all
the outstanding shares of capital stock of the Company and its subsidiaries
will be free and clear of any lien, charge, encumbrance, security interest or
restriction upon voting or transfer, except for the pledge of such capital
stock as security for the obligations under the credit agreement (the "Credit
Agreement"), to be dated as of the Closing Date, among Holdings, the Company,
The Chase Manhattan Bank, as Administrative Agent and Collateral Agent, Bankers
Trust Company and Xxxxxxx Xxxxx Capital Corporation, as Co-Syndication Agents,
Canadian Imperial Bank of Commerce and Credit Suisse First Boston Corporation,
as Co-Documentation Agents, and the lenders party thereto, relating to the New
Credit Facilities. Except as set forth in the Stockholders Agreement, dated as
of November 12, 1999 (the "Stockholders' Agreement"), among Holdings and the
investors listed on the signature pages thereof, (i) there are no outstanding
obligations of Holdings to repurchase, redeem or otherwise acquire any shares
of Holdings Common Stock, (ii) there are no voting trusts or other agreements
or understandings to which Holdings and the Company or any of its subsidiaries
is a party with respect to the holding, voting or disposing of Holdings Common
Stock (other than certain management loan arrangements), and (iii) Holdings has
no outstanding bonds, debentures, notes or other obligations or other
securities (other than the Holdings Common Stock, the Warrants, the Opco Note
Warrants and management stock options) that entitle the holders thereof to vote
with the stockholders of Holdings on any matter or which are convertible into
or exercisable for securities having such a right to vote.
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(e) Holdings has full right, power and authority to execute and
deliver the Merger Agreement and has full right, power and authority to perform
its obligations thereunder; and all corporate action required to be taken by
Holdings for the due and proper authorization, execution and delivery of the
Merger Agreement and the consummation of the transactions contemplated thereby
by Holdings were validly taken.
(f) Each of Holdings, the Company and the Opco Guarantors, as
applicable, has the full right, power and authority to execute and deliver this
Agreement, the Indenture, the Registration Rights Agreement, the Holdings
Notes, the Warrants, the Warrant Agreement, the Credit Agreement, and the
Security Documents and the Guarantee Agreements (each, as defined in the Credit
Agreement and, collectively with the Credit Agreement, the "New Credit
Facilities Documents"), the Services Agreement, the Stockholders' Agreement,
the Stock Subscription Agreement, dated November 12, 1999 (the "Stock
Subscription Agreement") among Fox Xxxxx Medic Acquisition Corporation,
Holdings and the investors named therein, the Stock Subscription Agreement
dated November 12, 1999 (the "Management Stock Subscription Agreement"),
between Holdings and the individual investors named therein, the supplemental
indenture, dated as of October 18, 1999, relating to the Existing Notes (the
"Supplemental Indenture"), the Opco Indenture, the Opco Notes, the Opco
Purchase Agreement, the Opco Registration Rights Agreement, the Opco Note
Warrant Agreement, and the Stock Purchase Agreement, dated as of November 12,
1999 (the "Circon Purchase Agreement"), between Maxxim Delaware and Fox Xxxxx
Circon (collectively, the "Transaction Documents") to which such entity is, or
will be as of the Closing Date, a party and to perform their respective
obligations hereunder and thereunder; and all corporate action required to be
taken for the due and proper authorization, execution and delivery of each of
the Transaction Documents by such entities and the consummation of the
transactions contemplated thereby by such entities has been duly and validly
taken.
(g) This Agreement has been duly authorized, executed and delivered
by Holdings and constitutes a valid and legally binding agreement of Holdings.
(h) The Indenture has been duly authorized by Holdings, and, when
duly executed and delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of Holdings
enforceable against Holdings in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether considered in a
proceeding in equity or at law). On the Closing Date, the Indenture will
conform in all material respects to the requirements of the Trust Indenture Act
and the rules and regulations of the Commission applicable to an indenture
which is qualified thereunder.
(i) The Holdings Notes have been duly authorized by Holdings and,
when duly executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided herein, will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations of
Holdings as issuer, entitled to the benefits of the Indenture and enforceable
against Holdings, as issuer, in accordance with their terms, except as may be
limited
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by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally and by
general equitable principles (whether considered in a proceeding in equity or
at law).
(j) The Warrants have been duly authorized by Holdings and, when
duly executed, authenticated, issued and delivered as provided in the Warrant
Agreement and paid for as provided herein and therein, will be duly and validly
issued and outstanding and will constitute valid and legally binding
obligations of Holdings, entitled to the benefits of the Warrant Agreement and
enforceable against Holdings in accordance with their terms, except as may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether considered in a
proceeding in equity or at law) and except to the extent that the
indemnification or contribution provisions contained therein may be
unenforceable.
(k) The Registration Rights Agreement has been duly authorized by
Holdings and, when duly executed and delivered in accordance with its terms by
each of the parties thereto, will constitute a valid and legally binding
agreement of Holdings enforceable against Holdings in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law) and except to the
extent that the indemnification or contribution provisions contained therein
may be unenforceable.
(l) The Merger Agreement has been duly authorized, executed and
delivered by Holdings and constitutes a valid and legally binding agreement of
Holdings, enforceable against Holdings in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether considered in a
proceeding in equity or at law). No holder of Holdings Common Stock has, prior
to the Merger, perfected such Xxxxxx's appraisal rights in connection with the
Merger.
(m) Each New Credit Facilities Document to which Holdings, the
Company and each Opco Guarantor, is to be a party has been duly authorized by
Holdings, the Company and each Opco Guarantor, as applicable, and, when duly
executed and delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of Holdings, the
Company and each Opco Guarantor, as applicable, enforceable against Holdings,
the Company and each Opco Guarantor, as applicable in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
(n) The Services Agreement has been duly authorized by Holdings and
the Company and, when duly executed and delivered in accordance with its terms
by each of the parties thereto, will constitute a valid and legally binding
agreement of Holdings and the Company enforceable against each of Holdings and
the Company in accordance with its terms,
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except as may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
(o) The Stockholders' Agreement has been duly authorized by
Holdings, and when duly executed and delivered in accordance with its terms by
each of the parties thereto, will constitute a valid and legally binding
agreement of Holdings enforceable against Holdings in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
(p) The Warrant Agreement has been duly authorized by Holdings, and
when duly executed and delivered in accordance with its terms by each of the
parties thereto, will constitute a valid and legally binding agreement of
Holdings enforceable against Holdings in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether considered in a
proceeding in equity or at law).
(q) Each other Transaction Document to which Holdings, the Company
or an Opco Guarantor is, or will be, as of the Closing Date, a party has been
duly authorized by Holdings, the Company or such Opco Guarantor, as applicable,
and, when duly executed and delivered in accordance with its terms by each of
the parties thereto, will constitute a valid and legally binding agreement of
Holdings, the Company or such Opco Guarantor, as applicable, enforceable
against Holdings, the Company or such Opco Guarantor, as applicable, in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
(r) Each Transaction Document conforms in all material respects to
the description thereof contained in the Private Placement Memorandum to the
extent described therein.
(s) The execution, delivery and performance by Holdings, the Company
and each Opco Guarantor of the Transaction Documents to which each is a party,
the issuance, authentication, sale and delivery of the Units (including the
Holdings Notes and the Warrants) and compliance by Holdings with the terms
thereof and the consummation of the transactions contemplated by the
Transaction Documents will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, or, except
as created pursuant to the New Credit Facilities Documents or the Stockholders'
Agreement, result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of Holdings or any of its subsidiaries
pursuant to any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which Holdings or any of its subsidiaries is a
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party or by which Holdings or any of its subsidiaries is bound or to which any
of the property or assets of Holdings or any of its subsidiaries is subject,
nor will such actions result in any violation of the provisions of the charter
or by-laws of Holdings or any of its subsidiaries or any statute or any
judgment, order, decree, or rule or regulation of any court or arbitrator or
governmental agency or body having jurisdiction over Holdings or any of its
subsidiaries or any of their properties or assets, except for any such
conflicts, breaches, violations, defaults, liens, charges and encumbrances
which, singularly or in the aggregate would not have a Material Adverse Effect;
and no consent, approval, authorization or order of, or filing or registration
with, any such court or arbitrator or governmental agency or body under any
such statute, judgment, order, decree, rule or regulation is required for the
execution, delivery and performance by Holdings and each of its subsidiaries of
each of the Transaction Documents to which each is a party, the issuance,
authentication, sale and delivery of the Units and compliance by Holdings and
its subsidiaries with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for such
consents, approvals, authorizations, filings, orders, registrations or
qualifications (i) which shall have been obtained or made on or prior to the
Closing Date, (ii) as may be required to be obtained or made under the
Securities Act and applicable state securities laws as provided in the
Registration Rights Agreement or the Opco Registration Rights Agreement or the
Stockholders' Agreement, (iii) the failure of which to obtain would not,
singularly or in the aggregate, have Material Adverse Effect or materially
restrain, prevent or impose material burdensome conditions on any of the
transactions contemplated by the Transaction Documents.
(t) KPMG LLP are independent certified public accountants with
respect to Holdings and its subsidiaries within the meaning of Rule 101 of the
Code of Professional Conduct of the American Institute of Certified Public
Accountants (the "AICPA") and the interpretations and rulings thereunder. The
historical financial statements (including the related notes) contained in the
Private Placement Memorandum comply in all material respects with the
requirements applicable to a registration statement on Form S-1 under the
Securities Act (except that certain supporting schedules are omitted); such
financial statements have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods covered
thereby and fairly present in all material respects the financial position of
the entities purported to be covered thereby at the respective dates indicated
and the results of their operations and their cash flows for the respective
periods indicated; and the historical financial information contained in the
Private Placement Memorandum under the headings "Summary--Summary Historical
and Pro Forma Financial Information," "Capitalization," "Unaudited Pro Forma
Financial Information of the Company," "Selected Historical Consolidated
Financial Information of Holdings," "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Management -- Compensation
of Executive Officers" are derived from the accounting records of Holdings, and
its subsidiaries and fairly present in all material respects the information
purported to be shown thereby. The pro forma financial information contained in
the Private Placement Memorandum has been prepared on a basis consistent with
the historical financial statements contained in the Private Placement
Memorandum (except for the pro forma adjustments specified therein), includes
all material adjustments to the historical financial information required by
Rule 11-02 of Regulation S-X promulgated by the Commission to reflect the
transactions described in the Private Placement Memorandum, gives effect to
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assumptions made on a reasonable basis and fairly presents in all material
respects the historical and proposed transactions contemplated by the Private
Placement Memorandum and the Transaction Documents; provided that no
representation is made with respect to the compliance of the calculation of
"EBITBA" with the requirements of Rule 11-02 of Regulation S-X under the
Exchange Act. The other historical financial and statistical information and
data included in the Private Placement Memorandum are, in all material
respects, fairly presented.
(u) Except as disclosed in the Private Placement Memorandum, there
are no legal or governmental proceedings pending to which Holdings or any of
its subsidiaries is a party or of which any property or assets of Holdings or
any of its subsidiaries is the subject which, (i) singularly or in the
aggregate, if determined adversely to Holdings or any of its subsidiaries,
could reasonably be expected to have a Material Adverse Effect or (ii) question
the validity or enforceability of any of the Transaction Documents or any
action taken or to be taken pursuant thereto; and to the best knowledge of
Holdings, the Company and the Opco Guarantors, no such proceedings are
threatened or contemplated by governmental authorities or by others.
(v) No action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental agency or body
which prevents the issuance of the Units or suspends the sale of the Units in
any jurisdiction; no injunction, restraining order or order of any nature by
any federal or state court of competent jurisdiction has been issued with
respect to Holdings or any of its subsidiaries which would prevent or suspend
the issuance or sale of the Units; except as disclosed in the Private Placement
Memorandum, no action, suit or proceeding is pending against or, to the best
knowledge of Holdings, the Company and the Opco Guarantors, threatened against
or affecting Holdings or any of its subsidiaries before any court or arbitrator
or any governmental agency, body or official, domestic or foreign, which could
reasonably be expected to interfere with or adversely affect the issuance of
the Units or in any manner draw into question the validity or enforceability of
any of the Transaction Documents or any action taken or to be taken pursuant
thereto.
(w) Neither Holdings nor any of its subsidiaries is (i) in violation
of its charter or by-laws, (ii) in default in any respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which it is a party or by which it is bound
or to which any of its property or assets is subject other than any such
default as would not, singularly or in the aggregate, have a Material Adverse
Effect or (iii) in violation in any respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets are
subject, other than any such violation as could not, singularly or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(x) Holdings and each of its subsidiaries possess all licenses,
certificates, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate federal, state or foreign
regulatory agencies or bodies which are necessary or, in the reasonable
judgment of Holdings and the Company, desirable for the ownership of their
respective properties or the conduct of their respective businesses as
described in the Private
- 10 -
11
Placement Memorandum, except where the failure to possess or make the same
would not, singularly or in the aggregate, have a Material Adverse Effect, and,
neither Holdings nor any of its subsidiaries has received notification of any
revocation or modification of any such license, certificate, authorization or
permit or has any reason to believe that any such license, certificate,
authorization or permit will not be renewed in the ordinary course of its
business which revocation, modification or nonrenewal would, singularly or in
the aggregate, have a Material Adverse Effect.
(y) Holdings and each of its subsidiaries have filed all federal,
state, local and foreign Tax returns required to be filed through the date
hereof and have paid all Taxes required to be paid (other than those Taxes
being contested in good faith for which adequate reserves have been provided in
accordance with generally accepted accounting principles, and other than any
such failure that could not reasonably be expected to have, singularly or in
the aggregate with any such other failures, a Material Adverse Effect). No
audits or examinations with respect to Holdings or any of its subsidiaries are
ongoing or, to the knowledge of Holdings, have been threatened or proposed by
the IRS or any state, local or foreign Tax authority which could reasonably be
expected to, singularly or in the aggregate, have a Material Adverse Effect. No
deficiencies for any Tax have been asserted or assessed or, to Holdings'
knowledge, threatened or proposed against Holdings or any of its subsidiaries
which have not been satisfied, and which, singularly or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
"Tax" means all federal state, local and foreign income, profits,
franchise, gross receipts, environmental, customs duty, capital stock,
communications services, severance, stamp, payroll, sales, employment,
unemployment, disability, use, property, withholding, excise, production, value
added, occupancy and other taxes, duties or assessments of any nature
whatsoever, together with all interest, penalties and additions imposed with
respect to such amounts and any interest in respect to such penalties and
additions, and includes any liability for Taxes of another person by contract,
as transferee or successor, under Treasury Regulation Section 1.1502-6 or
analogous state, local or foreign law provision, or otherwise.
(z) Neither Holdings nor any of its subsidiaries is (i) an
"investment company" or a company "controlled by" an investment company within
the meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and the rules and regulations of the Commission thereunder or
(ii) a "holding company" or a "subsidiary company" of a holding company or an
"affiliate" thereof within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
(aa) Except as would not, singularly or in the aggregate, have a
Material Adverse Effect, Holdings and each of its subsidiaries maintain 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 generally
accepted accounting principles 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
- 11 -
12
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(bb) Except as would not, singularly or in the aggregate, have a
Material Adverse Effect, Holdings and each of its subsidiaries have insurance
covering their respective properties, operations, personnel and businesses,
which insurance is in amounts and insures against such losses and risks as are,
in the reasonable judgment of Holdings and the Company, adequate to protect
Holdings and its subsidiaries and their respective businesses. Neither Holdings
nor any of its subsidiaries has received notice from any insurer or agent of
such insurer that material capital improvements or other material expenditures
are required or necessary to be made in order to continue such insurance.
(cc) Holdings and each of its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark registrations,
copyrights, licenses and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of their respective businesses; and the
conduct of their respective businesses will not conflict in any respect with,
and Holdings and its subsidiaries have not received any notice of any claim of
conflict with, any such rights of others which conflict, singularly or in the
aggregate with any other such conflicts, if the subject of an unfavorable
decision, ruling or finding, could reasonably be expected to result in a
Material Adverse Effect.
(dd) Holdings and each of its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use, all
items of real and personal property which are material to the business of
Holdings and its subsidiaries, in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title except such as (i)
do not materially interfere with the use made and proposed to be made of such
property by Holdings and its subsidiaries, (ii) could not reasonably be
expected to have, singularly or in the aggregate with all other liens,
encumbrances, claims and defects and imperfections of title, a Material Adverse
Effect, (iii) arise under the New Credit Facilities Documents or (iv) are
permitted under the Indenture.
(ee) No labor disturbance by or dispute with the employees of
Holdings or any of its subsidiaries exists or, to the best knowledge of
Holdings, is contemplated or threatened, which disturbance or dispute would
singularly or in the aggregate have a Material Adverse Effect.
(ff) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section 4975
of the Internal Revenue Code of 1986, as amended from time to time (the
"Code")) or, except as set forth in Schedule 3.11(d) of the Merger Agreement
and the related schedule, "accumulated funding deficiency" (as defined in
Section 302 of ERISA) or any of the events set forth in Section 4043(b) of
ERISA (other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect to any
employee benefit plan of Holdings or any of its
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13
subsidiaries which could reasonably be expected to have a Material Adverse
Effect; each such employee benefit plan is in compliance in all material
respects with applicable law, including ERISA and the Code; Holdings and each
of its subsidiaries have not incurred and do not expect to incur liability
under Title IV of ERISA with respect to the termination of, or withdrawal from,
any pension plan for which Holdings or any of its subsidiaries would have any
liability; and each such pension plan that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which could reasonably be
expected to cause the loss of such qualification.
(gg) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission or other release of any kind
of toxic or other wastes or other hazardous substances by, due to or caused by
Holdings or any of its subsidiaries (or, to the best knowledge of Holdings, the
Company or any of the Opco Guarantors, any other entity (including any
predecessor) for whose acts or omissions Holdings or any of its subsidiaries is
or could reasonably be expected to be liable) upon any of the property now or
previously owned or leased by Holdings or any of its subsidiaries, or upon any
other property, in violation of any statute or any ordinance, rule, regulation,
order, judgment, decree or permit or which would, under any statute or any
ordinance, rule (including rule of common law), regulation, order, judgment,
decree or permit, give rise to any liability, except for any violation or
liability that could not reasonably be expected to have, singularly or in the
aggregate with all such violations and liabilities, a Material Adverse Effect;
and there has been no disposal, discharge, emission or other release of any
kind onto such property of any toxic or other wastes or other hazardous
substances with respect to which Holdings, the Company or any of the Opco
Guarantors, has knowledge, except for any such disposal, discharge, emission or
other release of any kind which could not reasonably be expected to have,
singularly or in the aggregate with all such discharges and other releases, a
Material Adverse Effect.
(hh) Neither Holdings nor any of its subsidiaries or, to the best
knowledge of Holdings, the Company or any of the Opco Guarantors, any director,
officer, agent, employee or other person associated with or acting on behalf of
Holdings or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating
to political activity; (ii) made any unlawful payment to any foreign or
domestic government official or employee from corporate funds; (iii) violated
or is in violation of any provision of the Foreign Corrupt Practices Act of
1977; or (iv) made any unlawful bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(ii) On and immediately after the Closing Date, Holdings (after
giving effect to the issuance of the Holdings Notes and the Warrants and to the
other Transactions) will be Solvent. As used in this paragraph, the term
"Solvent" means, with respect to a particular date, that on such date (i) the
fair value and present fair saleable value of the assets of Holdings, exceeds:
(x) the total liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities) of Holdings, and (y) the amount required to pay such
liabilities as they become absolute and matured in the normal course of
business; (ii) Holdings has the ability to pay its debts and liabilities
(including contingent, subordinated, unmatured and unliquidated liabilities) as
they become absolute and matured in the normal course of business; and (iii)
Holdings does
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14
not have an unreasonably small amount of capital with which to conduct its
business after giving due consideration to the prevailing practice in the
industry in which Holdings is engaged. In computing the amount of such
contingent liabilities at any time, it is intended that such liabilities will
be computed at the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
(jj) Except as described in the Private Placement Memorandum, or as
contemplated by this Agreement, there are no outstanding subscriptions, rights,
warrants, calls or options to acquire, or instruments convertible into or
exchangeable for, or agreements or understandings with respect to the sale or
issuance of, any shares of capital stock of or other equity or other ownership
interest in Holdings or any of its subsidiaries.
(kk) None of the proceeds of the sale of the Units will be used,
directly or indirectly, for the purpose of purchasing or carrying any margin
security, for the purpose of reducing or retiring any indebtedness which was
originally incurred to purchase or carry any margin security or for any other
purpose which might cause any of the Units to be considered a "purpose credit"
within the meanings of Regulation T, U or X of the Board of Governors of the
Federal Reserve Board.
(ll) Neither Holdings nor any of its subsidiaries is a party to any
contract, agreement or understanding, other than this Agreement, with any
person that would give rise to a valid claim against Holdings or its
subsidiaries or the Purchasers for a brokerage commission, finder's fee or like
payment in connection with the sale of the Units.
(mm) The Holdings Notes and the Warrants satisfy the eligibility
requirements of Rule 144A(d)(3) under the Securities Act.
(nn) None of Holdings, any of its subsidiaries or any of their
respective affiliates has, directly or through any agent, made any offer or
sale, solicited offers to buy or otherwise negotiated in respect of any of the
Holdings Notes or the Warrants or any securities of the same or similar class
as the Holdings Notes or the Warrants, the result of which would cause the sale
of the Holdings Notes or the Warrants to fail to be entitled to the exemption
from registration afforded by Section 4(2) of the Securities Act. As used
herein, the terms "offer" and "sale" have the meanings specified in Section
2(3) of the Securities Act.
(oo) None of Holdings, any of its subsidiaries or any of their
respective affiliates or any other person acting on its or their behalf has
engaged, in connection with the sale of the Units, in any form of general
solicitation or general advertising within the meaning of Rule 502(c) of
Regulation D under the Securities Act ("Regulation D").
(pp) Following the Transactions, there will be, other than pursuant
to the requirements of the Registration Rights Agreement, the Opco Registration
Rights Agreement and the Stockholders' Agreement, no securities of Holdings or
its subsidiaries registered under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or listed on a national
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15
securities exchange or quoted in a U.S. automated inter-dealer quotation system
following delisting and deregistration of the Holdings Common Stock outstanding
prior to the Merger.
(qq) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in the
Private Placement Memorandum has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
(rr) Any reprogramming required to permit the proper functioning in
and following the year 2000 of (i) the computer systems of Holdings and each of
its subsidiaries and (ii) equipment containing embedded microchips (including
systems and equipment supplied by others or with which the systems of Holdings
or each of its subsidiaries interface) and the testing of all such systems and
equipment, as so reprogrammed, was materially complete by October 31, 1999. The
cost to Holdings and each of its subsidiaries of such reprogramming and testing
and of the reasonably foreseeable consequences of the occurrence of the year
2000 to Holdings and each of its subsidiaries (including reprogramming errors
and the failure of others' systems or equipment) will not result in a Material
Adverse Effect. Except for the reprogramming referred to in the preceding
sentence as may be necessary, the computer and management information systems
of Holdings and each of its subsidiaries are and, with ordinary course
upgrading and maintenance, will continue for the term of this Agreement to be,
sufficient to permit Holdings and its subsidiaries to conduct their businesses
without Material Adverse Effect.
(ss) Since the date as of which information is given in the Private
Placement Memorandum, except as otherwise stated therein, (i) there has been no
material adverse change or any development involving a material adverse change
in the condition (financial or otherwise), earnings, business affairs,
management or business prospects of Holdings and its subsidiaries, taken as a
whole, whether or not arising in the ordinary course of business or (ii)
Holdings and its subsidiaries have not incurred any material liability or
obligation, direct or contingent, other than in the ordinary course of business
or in connection with the Transactions.
2. Purchase of the Units. (a) On the basis of the representations,
warranties and agreements contained herein, and subject to the terms and
conditions set forth herein, Holdings agrees to issue and sell to each of the
Purchasers, severally and not jointly, and each of the Purchasers, severally
and not jointly, agrees to purchase from Holdings the number of Units set forth
opposite the name of such Purchaser on Schedule 1 hereto at a purchase price
equal to $507.76 per Unit. Schedule 1 also sets forth for each Purchaser the
principal amount at maturity of the Holdings Notes and the number of Warrants
represented by the Units that such Purchaser has agreed to purchase.
(b) Each Purchaser represents to Holdings that (i) it is either (A)
an "accredited investor," within the meaning of Rule 501 promulgated by the
Commission under the Securities Act or (B) a Qualified Institutional Buyer
("QIB") as defined in Rule 144A under the Securities Act ("Rule 144A"), (ii) it
is acquiring the Units, the Holdings Notes and the Warrants to be purchased by
it hereunder for its own account, for investment, and not with a view to or for
sale in connection with any distribution thereof in violation of the
registration provisions of the
- 15 -
16
Securities Act or the rules and regulations promulgated thereunder, (iii) it is
aware that it must bear the economic risk of such investment for an indefinite
period of time since the statutory basis for exemption from registration under
the Securities Act would not be present if such representation meant merely
that the present intention of such Purchaser is to hold these securities for a
deferred sale or for any fixed period in the future and (iv) it can afford to
bear such economic risk and can afford to suffer the complete loss of its
investment hereunder. Each Purchaser acknowledges that the Holdings Notes and
the Warrants are "restricted securities" under the federal securities laws,
have not been registered under the Securities Act or any state securities or
blue sky laws and may not be sold except pursuant to an effective registration
statement thereunder or any exemption from registration under the Securities
Act and applicable state securities laws. Each Purchaser further acknowledges
that each Holdings Note and Warrant shall include the restrictive legend set
forth below:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION."
Each Purchaser further acknowledges that the Warrants and the Underlying Shares
will be subject to the provisions of the Stockholders' Agreement, which
agreement provides for certain restrictions on the transferability of the
Warrants and the Underlying Shares and will bear such other legends as may be
set forth in the Stockholders' Agreement.
(c) It is hereby agreed that, for purposes of Treasury Regulations
1.1273-2(h), (i) the aggregate "issue price" of a Unit consisting of the $1,000
in principal amount at maturity of the Holdings Notes and 1.46367 Warrants to
be purchased by the Purchasers is $492.53, (ii) the aggregate fair market value
and aggregate purchase price of each Note of $1,000 principal amount at
maturity is $454.49 and (iii) the aggregate fair market value and aggregate
purchase price of each Warrant is $25.99. Holdings and the Purchasers agree to
use the foregoing issue price, purchase prices and fair market values for U.S.
federal income tax purposes with respect to this transaction (unless otherwise
required by a final determination by the Internal Revenue Service or a court of
competent jurisdiction).
3. Delivery of and Payment for the Units. (a) Delivery of and payment
for the Units shall be made at the offices of Wachtell, Lipton, Xxxxx & Xxxx,
New York, New York, or at such other place as shall be agreed upon by the
Purchasers and the Company, at 3:30 p.m., New York City time, on November 12,
1999, or at such other time or date, not later than seven full business days
thereafter, as shall be agreed upon by the Purchasers and Holdings (such date
and time of payment and delivery being referred to herein as the "Closing
Date"). On the Closing Date, Holdings will deliver to the Purchasers
certificates evidencing an aggregate of 98,473 Units consisting of $98,473,000
aggregate principal amount at maturity of the Holdings Notes duly
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17
executed and authenticated by Holdings and 144,132 Warrants duly executed by
Holdings and registered in the names of the Purchasers and in the amounts set
forth on Schedule 1 (and in such denominations requested by each such Purchaser
not later than two business days prior to the Closing Date).
(b) On the Closing Date, payment of the purchase price for the Units
shall be made to Holdings by wire or book-entry transfer of same-day funds to
such account or accounts as Holdings shall specify prior to the Closing Date or
by such other means as the parties hereto shall agree prior to the Closing Date
against delivery to the Purchasers of the certificates evidencing the Units.
Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligations of the
Purchasers hereunder. On the Closing Date, Holdings shall deliver to each
Purchaser, against payment of the purchase price therefor, certificates in
definitive form representing the Holdings Notes, and Holdings shall deliver to
each Purchaser, against payment of the purchase price therefor, certificates in
definitive form representing the Warrants to be purchased by such Purchaser, in
each case registered in such names and in such denominations as such Purchaser
shall have requested not later than two business days prior to the Closing
Date.
(c) On the Closing Date, Holdings shall pay to each Purchaser or its
designee, by wire transfer in same-day funds, a takedown payment equal to 3.00%
of the aggregate purchase price of the Units purchased by such Purchaser on the
Closing Date (or $1,500,002.76 in the aggregate) and, the extent requested to
be paid on the Closing Date, all reasonable fees of and disbursements to Fried,
Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx, counsel to the Purchasers incurred in
connection with the issuance and sale of the Holdings Notes and the Warrants.
4. Further Agreements of Holdings. Holdings agrees with each of the
Purchasers:
(a) at all times prior to the Closing Date, to advise the Purchasers
promptly and, if reasonably requested, confirm such advice in writing, of the
happening of any event which makes any statement of a material fact made in the
Private Placement Memorandum untrue or which requires the making of any
additions to or changes in the Private Placement Memorandum (as amended or
supplemented from time to time) in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(b) if at any time prior to the Closing Date, any event shall occur
or condition exist as a result of which it is necessary, in the opinion of
counsel for the Purchasers or counsel for Holdings, to amend or supplement the
Private Placement Memorandum in order that the Private Placement Memorandum
will not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances existing at the time it is delivered to a Purchaser, not
misleading, including the fact that the Private Placement Memorandum was
prepared as an offering memorandum solely for the Opco Notes, and it being
acknowledged by Purchasers that the Private Placement Memorandum does not
describe the Notes and Warrants or specific risks that may be associated with
the purchase and ownership thereof, or if it is necessary to amend or
supplement the Private Placement Memorandum to comply with applicable law
relating to an offering of the Opco
- 17 -
18
Notes, to promptly prepare such amendment or supplement as may be necessary to
correct such untrue statement or omission or so that the Private Placement
Memorandum, as so amended or supplemented, will comply with applicable law and
to deliver copies thereof to the Purchasers;
(c) for so long as the Holdings Notes or the Warrants are
outstanding and are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Act, to furnish to holders of the Holdings Notes
or the Warrants and prospective purchasers of the Holdings Notes or the
Warrants designated by such holders, upon request of such holders or such
prospective purchasers, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act, unless Holdings is then subject to
and in compliance with Section 13 or 15(d) of the Exchange Act (the foregoing
agreement being for the benefit of the holders from time to time of the Units,
the Holdings Notes or the Warrants and prospective purchasers of the Units, the
Notes or the Warrants designated by such holders);
(d) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
not to, and to cause its affiliates not to, and not to authorize or knowingly
permit any person acting on their behalf to; solicit any offer to buy or offer
to sell the Notes by means of engaging in any form of general solicitation or
general advertising within the meaning of Rule 502 (c) of Regulation D under
the Securities Act; and not to offer, sell, contract to sell or otherwise
dispose of, or negotiate in respect of, directly or indirectly, any securities
of the same or similar class as the Holdings Notes or the Warrants under
circumstances where such offer, sale, contract, negotiation or disposition
could be integrated with the sale of the Notes and the Warrants in a manner
which would cause the exemption afforded by Section 4(2) of the Securities Act
to cease to be applicable to the sale of the Units as contemplated by this
Agreement;
(e) during the period from the Closing Date until two years after
the Closing Date, not to, and not permit any of its affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of the Holdings Notes or the
Warrants that have been reacquired by them, except for Holdings Notes and
Warrants purchased by Holdings or any of its affiliates and resold in a
transaction registered under the Securities Act or unless the securities bear a
legend specifying the date of such resale;
(f) not to, for so long as the Holdings Notes or the Warrants are
outstanding, be or become, or be or become owned by, an open-end investment
company, unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company Act, and to
not be or become, or be or become owned by, a closed-end investment company
required to be registered under the Investment Company Act, but not registered
thereunder;
(g) to do and perform all things required to be done and performed
by it under this Agreement that are within its control prior to or after the
Closing Date, and to use its best efforts to satisfy all conditions precedent
on its part to the delivery of the Units;
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19
(h) not to take any action prior to the execution and delivery of
the Indenture which, if taken after such execution and delivery, would have
violated any of the covenants contained in the Indenture;
(i) not to take any action prior to the Closing Date which would
require the Private Placement Memorandum to be amended or supplemented pursuant
to Section 4(b);
(j) to apply the net proceeds from the sale of the Units as set
forth in the Private Placement Memorandum under the heading "Summary--Sources
and Uses" and "Use of Proceeds";
(k) to cause each of Xxxxxxxx, Xxxxxx, Xxxxx & Xxxx, Shumaker, Xxxx
& Xxxxxxxx, LLP, Xxxxx, Xxxxx & Xxxxxx and Xxxxxx & Xxxxxx (allocated in
accordance with the forms of opinion previously provided to the counsel for the
Purchasers) to furnish to the Purchasers their written opinions, as counsel for
Holdings, addressed to the Purchasers and dated as of the Closing Date, in form
and substance reasonably satisfactory to the Purchasers, such opinions together
to be substantially in the form set forth in Annex B hereto;
(l) to furnish to the Purchasers a certificate, dated as of the
Closing Date, of the Chief Executive Officer and Chief Financial Officer of
Holdings stating that (i) such officers have carefully examined the Private
Placement Memorandum, (ii) in their opinion, the Private Placement Memorandum,
as of its date, did not include any untrue statement of a material fact and did
not omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, including the fact that the Private
Placement Memorandum was prepared as an offering memorandum solely for the Opco
Notes, and it being acknowledged by Purchasers that the Private Placement
Memorandum does not describe the Notes and Warrants or specific risks that may
be associated with the purchase and ownership thereof, and since the date of
the Private Placement Memorandum, no event has occurred which should have been
set forth in a supplement or amendment to the Private Placement Memorandum so
that the Private Placement Memorandum (as so amended or supplemented) would not
include any untrue statement of a material fact and would not omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, (iii) as of the Closing Date, the representations and
warranties of Holdings in this Agreement are true and correct in all material
respects, and Holdings has complied in all material respects with all
agreements and satisfied all conditions on their part to be performed or
satisfied hereunder on or prior to the Closing Date and (iv) subsequent to the
date of the most recent financial statements contained in the Private Placement
Memorandum, there has been no material adverse change in the financial position
or results of operations of Holdings and its subsidiaries, taken as a whole, or
any material adverse change, or any material adverse development, in or
affecting the condition (financial or otherwise), results of operations or
business of Holdings and its subsidiaries, taken as a whole;
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20
(m) to furnish to the Purchasers, on or prior to the Closing Date, a
counterpart of the Registration Rights Agreement which shall have been duly
executed and delivered by Holdings;
(n) to furnish to the Purchasers, on or prior to the Closing Date,
(i) the Indenture which shall have been duly executed and delivered by Holdings
and the Trustee, and (ii) the Holdings Notes which shall have been duly
executed and delivered by Holdings and duly authenticated by the Trustee;
(o) to furnish to the Purchasers, on or prior to the Closing Date, a
counterpart of the Stockholders' Agreement which shall have been duly executed
and delivered by of Holdings and each other party thereto other than the
Purchasers;
(p) to furnish to the Purchasers, on or prior to the Closing Date, a
counterpart of the Warrant Agreement, which shall have been duly executed and
delivered by Holdings and the Purchasers, and (ii) the Warrants which shall
have been duly executed and delivered by Holdings and duly countersigned by the
Purchasers; and
(q) to furnish to the Purchasers, on or prior to the Closing Date,
true and complete copies of all the Transaction Documents (and all related
closing documents), which shall have been duly executed and delivered by all
the parties thereto, including, without limitation, the Services Agreement, the
Credit Agreement and other New Credit Facilities Documents and the Supplemental
Indenture.
5. Conditions to Purchasers' Obligations. The respective obligations of
the Purchasers hereunder are subject, on and as of the date hereof and the
Closing Date, to the satisfaction of the following terms and conditions:
(a) The representations and warranties of Holdings set forth in this
Agreement that are qualified as to materiality shall be true and correct in all
respects, as of the date hereof and as of the Closing Date as though made as of
such time, except to the extent such representations and warranties expressly
relate to an earlier date (in which case such representations and warranties
shall be true and correct in all respects as of such earlier date) and the
representations and warranties of Holdings set forth in this Agreement that are
not qualified as to materiality shall be true and correct in all material
respects, as of the date hereof and as of the Closing Date as though made as of
such time, except to the extent such representations and warranties expressly
relate to an earlier date (in which case such representations and warranties
shall be true and correct in all material respects as of such earlier date).
Holdings shall have performed or complied in all material respects with all
obligations and covenants required by this Agreement to be performed or
complied with by Holdings on or prior to the Closing Date. All the statements
made by Holdings and its officers made in any certificates delivered pursuant
hereto shall be accurate in all material respects.
(b) No stop order suspending the sale of the Units in any
jurisdiction shall have been issued and no proceeding for that purpose shall
have been commenced or shall be pending or threatened.
- 20 -
21
(c) Holdings shall have furnished to the Purchasers such
certificates, opinions and other documents as are customary in connection with
the closing of transactions similar to the transactions contemplated by this
Agreement.
(d) The capitalization of Holdings and its subsidiaries shall be as
contemplated by the commitment letters each dated as of October 22, 1999
entered into by each of the Opco Purchasers with Fox Xxxxx Maxxim, the
commitment letter dated as of August 13, 1999 (the "Prior Commitment Letter"),
among Fox Xxxxx Maxxim, Fox Xxxxx Circon and the GS Mezzanine Partners, L.P.,
as amended on October 29, 1999, and the commitment letter dated as of June 12,
1999 among Fox Xxxxx Maxxim, The Chase Manhattan Bank and Chase Securities,
Inc., as amended on September 30, 1999, and November 1, 1999 (each a
"Commitment Letter" and collectively the "Commitment Letters"), except where
any change to such capitalization is on terms that are not materially adverse
to the Purchasers and the investment contemplated by such Commitment Letters.
(e) Subsequent to June 13, 1999, there shall not have been any
event, change, or development that constitutes a Company Material Adverse
Effect (as defined in the Merger Agreement), in each case other than actions
taken pursuant to or as disclosed in the Merger Agreement.
(f) The Merger Agreement shall be in full force and effect.
(g) (x) The issuance of the Units, the Holdings Notes and the
Warrants shall be in compliance with existing law and (y) no action shall have
been taken and no statute, rule, regulation or order shall have been enacted,
adopted or issued by any governmental agency or body which would, as of the
Closing Date, prevent the issuance or sale of the Units, the Holdings Notes or
the Warrants; and no injunction, restraining order or order of any other nature
by any federal or state court of competent jurisdiction shall have been issued
as of the Closing Date which would prevent the issuance or sale of the Units,
the Holdings Notes or the Warrants.
(h) The Investors shall have previously made, or shall substantially
concurrently with the sale of the Units hereunder make, payments in respect of
the entire amount of the Investor Equity Contribution.
(i) The Transactions, other than the sale of the Units, shall be
consummated substantially concurrently with the sale of the Units hereunder.
6. Termination. The obligations of the Purchasers hereunder may be
terminated by the Purchasers, in their absolute discretion, by notice given to
and received by Holdings prior to delivery of and payment for the Units (a) if,
prior to that time, any of the events described in Section 5(g)(y) shall have
occurred and be continuing or (b) at any time after December 31, 1999.
7. Several Obligations of the Purchasers. The obligations of the
Purchasers hereunder shall be several.
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22
8. Indemnification. (a) Holdings shall indemnify and hold harmless each
Purchaser, its affiliates, officers, directors, stockholders, trustees,
employees, and representatives, and each person, if any, who controls any such
person within the meaning of the Securities Act or the Exchange Act
(collectively referred to herein as the "Indemnitees"), from and against any
and all liabilities, obligations, losses, damages, claims, and the related
costs and expenses, including, without limitation, legal fees and other
expenses incurred in the investigation, defense, appeal and settlement of
claims, actions, suits and proceedings (collectively referred to herein as the
"Indemnified Liabilities"), incurred by the Indemnitees as a result of, or
arising out of or relating to the Transactions (it being understood and agreed
that such Indemnified Liabilities do not include losses by the Purchaser of all
or a portion of its investment in the Holding Notes and Warrants except as a
result of a breach by Holdings of its obligations under this Agreement, the
Warrant Agreement, the Registration Rights Agreement, the Indenture, the
Warrants or the Holdings Notes (collectively, the "Unit Documents") and
provided that this parenthetical shall in no way be deemed to limit or affect
the rights and obligations of Holdings under the Unit Documents, otherwise than
under this Section 8), including, without limitation:
(i) any action or failure to act by any of Holdings or
any of its subsidiaries;
(ii) any statements or omissions made in any disclosure
or other information or materials used in connection with the
Transactions;
(iii) the execution, delivery, performance or enforcement
of this Agreement, the other Transaction Documents or any other
instrument or document contemplated hereby or thereby or any act, event
or transaction related or attendant thereto or contemplated hereby or
thereby, or any action or inaction by any Indemnitee under or in
connection herewith or therewith; or
(iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether
based on contract, tort or other theory and regardless of whether any
Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that (x) such Indemnified Liabilities are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or wilful misconduct of such Indemnitee or (y) such
Indemnified Liabilities of a Purchaser result from disputes among such
Purchaser or one or more Purchasers. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, Holdings agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
(b) The obligations of Holdings under this Section 8 shall be in
addition to any liability that Holdings may otherwise have and shall survive
the payment or prepayment in full or transfer of any Unit and the enforcement
of any provision hereof or thereof.
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23
9. Additional Covenants of Holdings Regarding Information and Access,
Management Rights and Syndication Assistance.
(a) Information Rights. So long as the Purchasers and their
affiliates hold Holdings Notes representing in the aggregate at least
$50,000,000 principal amount due at maturity, Holdings will deliver to the
Purchasers and each other holder of the Holdings Notes that is an institutional
investor (i) the financial and other information required to be delivered by
the Company to the Administrative Agent and the Lenders (as defined in the
Credit Agreement) pursuant to clauses (a) through (g) of Section 5.01 of the
Credit Agreement as in effect on the date hereof no later than the times such
information is furnished or required to be furnished under said provisions,
(ii) notice of the matters referred to in Section 5.02 of the Credit Agreement
as in effect on the date hereof no later than the times such notices are given
to the Administrative Agent under said Section and (iii) promptly following any
request therefor, such other information regarding the operations, business
affairs, and financial condition of Holdings and its subsidiaries including
reports and materials of the committees of the board of directors as the
Purchasers may reasonably request in relation to their investment in the Units.
In addition, Holdings will, and will cause its subsidiaries to, permit
representatives of the Purchaser, upon reasonable prior notice, to visit and
inspect the properties of, to examine and make extracts from its books and
records, and to discuss its affairs, finances and conditions with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
(b) Management Rights. So long as the Purchasers and their
affiliates own Holdings Notes and Opco Notes representing in the aggregate at
least $50,000,000 in principal amount at maturity:
(i) Holdings shall cause, at the request of GS Mezzanine
Partners, L.P. ("GSMP"), the establishment of one person, who shall be
a managing director, officer or employee of The Xxxxxxx Xxxxx Group,
Inc. or any of its affiliates, as a non-voting observer (a "Non-Voting
Observer") to the Board of Holdings (the "Board"); it being understood
that GSMP may from time to time change the designation of such
Non-Voting Observer. In the event of a vacancy caused by the
resignation or other cessation of service of any Non-Voting Observer,
upon nomination by GSMP, Holdings shall cause the appointment of a new
Non-Voting Observer nominated by Purchasers at least seven (7) days
prior to the date of the next regular or special meeting of the Board.
The Non-Voting Observer shall be permitted to attend meetings of the
Board or each such other board or committee in person or
telephonically.
(ii) The Non-Voting Observer shall be entitled to be present at
all meetings of the Board and such observer shall be notified of any
meeting of any such board of directors or a committee thereof,
including such meeting's time and place, in the same manner and to the
same extent, if any, as directors of Holdings (and with respect to
committees, who are not members of such committee) and shall have the
same access to information (including any copies of all materials
distributed to members of the Board) concerning the business and
operations of Holdings or its subsidiaries and at the same time and to
the same extent, if any, as directors of Holdings (and with respect to
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24
committees, who are not members of such committee) and shall be
entitled to participate in discussions of the Board and consult with,
and make proposals and furnish advice to, the board of directors or
members of the committee without voting; provided, however, that
Holdings shall not be under any obligation to take any action with
respect to any proposals made or advice furnished by the Non-Voting
Observer. The Non-Voting Observer shall have a duty of confidentiality
and a duty of good faith to Holdings comparable to the analogous duties
of a director of Holdings.
(iii) At all times after an initial public offering ("IPO"),
Holdings shall cause to be maintained, provided the same is available
at reasonable cost, directors' and officers' liability insurance
covering all directors and officers of Holdings and covering the
Non-Voting Observer (regardless of whether such insurance shall be
obtained prior to an IPO or after an IPO) to the same extent as that
maintained for all other directors, including coverage in an amount of
at least $10 million.
(iv) Holdings shall indemnify and hold harmless, to the fullest
extent permitted under the applicable law, the Non-Voting Observer to
the same extent as all other directors and on terms no less favorable
than under Holdings' articles of incorporation and by-laws on the date
hereof.
(v) concurrently with the Closing Date, pursuant to a letter of
even date herewith in the form of Annex C hereto, the Company has
provided GSMP contractual information, inspection rights and management
rights with respect to the Company's Board of Directors substantially
comparable to the rights granted by Holdings to GSMP hereunder.
(c) Syndication Assistance. Following the first anniversary of the
date of this Agreement, so long as the Purchasers and their affiliates hold
Holdings Notes representing in the aggregate at least $50,000,000 in principal
amount due at maturity:
(i) The Company will, if reasonably requested by the
Purchasers, assist the Purchasers in completing any private resale (a
"Private Offering") of at least $15,000,000 of Accreted Value (as
defined in the Indenture) of Holdings Notes, but in no event more than
two Private Offerings and in no event more than once in any six-month
period, by the Purchasers of the Holdings Notes in accordance with the
Purchasers' intended method of distribution, provided that the
Purchasers shall comply with all restrictions applicable to the
transfer of the Holdings Notes under the Indenture and under applicable
federal and state securities laws. Such assistance may, in any such
case, include the following:
(A) using commercially reasonable efforts to ensure that
the distribution efforts benefit materially from the Company's
existing lending relationships;
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25
(B) using commercially reasonable efforts to provide
contact between the Company's senior management and advisors and
prospective purchasers to enable them to conduct their due
diligence investigation;
(C) responding to reasonable inquiries of, and providing
answers to, each prospective purchaser who so inquires about the
Company and its Subsidiaries (to the extent such information is
available or can be acquired and made available to prospective
purchasers without commercially unreasonable effort or expense
and to the extent the provision thereof is not prohibited by
applicable law or applicable confidentiality restrictions) and
the terms and conditions of the applicable distribution;
(D) if requested by the Purchasers in connection with any
Private Offering, using commercially reasonable efforts to
prepare an offering memorandum (the "Offering Memorandum") to
the extent required by paragraphs (iii) or (iv) of this Section
9(c) and other materials to be used in connection with the
distribution (including assistance in completion of the
Purchasers', any sales or placement agent's, if any, or in the
case of an underwritten offering, the lead managers' and
co-managers' reasonable due diligence review of Holdings and its
subsidiaries as an aid to such preparation);
(E) using commercially reasonable efforts to host one or
more meetings of prospective purchasers;
(F) using commercially reasonable efforts to promptly
prepare and provide to the Purchasers (or any sales or placement
agent therefor and any underwriter thereof) all information with
respect to Holdings, including projections, as the Purchasers
(or any sales or placement agent therefor and any underwriter
thereof) may reasonably request. Any such projections made
available to the Purchasers (or each placement or sales agent,
if any, therefor and each underwriter, if any, thereof) by
Holdings or any of its representatives will be prepared in good
faith based upon reasonable assumptions; provided, however, that
in no event shall Holdings be required to give any
representations or warranties with respect to such projections;
and
(G) if requested by the Purchasers, take commercially
reasonable actions necessary to enable Standard & Poor's Rating
Services, Inc. and Xxxxx'x Investors Service, Inc. to provide
their respective credit ratings of the Holdings Notes;
provided, that nothing contained in this Paragraph 9(c)(i) or paragraph
9(c)(ii) shall require Holdings or any of its subsidiaries to take any
actions that would (i) unreasonably interfere with or disrupt their
businesses or operations, provided that this limitation shall not limit
Holdings from taking such action for more than 90 days; (ii) interfere
with or disrupt any securities offering by Holdings or the Company;
(iii) require Holdings and its subsidiaries to incur any significant
expense; or (iv) require Holdings or any of its
- 25 -
26
subsidiaries to provide any non-public information to any third party
unless such third party shall have entered into a confidentiality
agreement on terms reasonably acceptable to Holdings; or (v) result in
any Private Offering being deemed a public offering under the
Securities Act.
(ii) Holdings will allow the Purchasers (or any sales or
placement agent therefor or, in the case of an underwritten offering,
the lead manager and co-managers thereof, in each case, as may be
selected by the Purchasers and is reasonably acceptable to Holdings),
in consultation with Holdings, to manage all aspects of the
distribution of the Holdings Notes, including decisions as to the
selection of institutions to be approached and when they will be
approached, when their commitment will be accepted, which institutions
will participate, the allocations of the commitments among the
prospective purchasers and the amount and distribution of fees among
the prospective purchasers and sellers.
(iii) At the request of the Purchasers, and subject to paragraph
9(c)(i), in order to facilitate the consummation of a Private Offering,
Holdings will prepare and deliver to each Purchaser copies of an
Offering Memorandum describing the terms of the Holdings Notes proposed
to be sold and of the Private Offering contemplated by such resales and
containing such other information customarily included in offering
memoranda for similar transactions. The Offering Memorandum for any
Private Offering will not, as of its date and as of the closing of such
Private Offering, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the foregoing shall not apply
to statements in or omissions from the Offering Memorandum made in
reliance upon and in conformity with information furnished to Holdings
in writing by any Purchaser expressly for use in the Offering
Memorandum. Without limiting the foregoing, the Offering Memorandum for
any Offering will contain all the information specified in, and meeting
the requirements of, subsection (d)(4) of Rule 144A and all other
applicable regulations. Prior to distributing, amending or
supplementing the Offering Memorandum in connection with any Private
Offering, Holdings shall furnish to the Purchasers a copy of each such
proposed Offering Memorandum, or amendment or supplement thereto, and,
allowing for a reasonable period of review by the Purchasers, the
Company shall not distribute, use or file the Offering Memorandum or
any such proposed amendment or supplement to which any Purchaser
selling Holdings Notes pursuant to such Offering Memorandum may
reasonably object.
(iv) If, prior to the completion of the sale of the Holdings
Notes by the Purchasers in any Private Offering, any event shall occur
or condition exist as a result of which it is necessary to amend or
supplement the related Offering Memorandum in order to make the
statements therein not contain a misstatement of a material fact or an
omission of a material fact required to make the statements therein, in
the light of the circumstances when the Offering Memorandum is
delivered to a prospective purchaser and at the closing of the sale of
the Holdings Notes covered thereby, not misleading or if,
- 26 -
27
in the opinion of the Purchasers or counsel for the Purchasers, it is
otherwise necessary to amend or supplement the Offering Memorandum to
comply with applicable law, then Holdings agrees to promptly prepare,
and furnish at its own expense to the Purchasers, amendments or
supplements to the Offering Memorandum so that the statements in the
Offering Memorandum as so amended or supplemented will not contain a
misstatement of a material fact or an omission of a material fact
required to make the statements therein, in the light of the
circumstances when the Offering Memorandum is delivered to a
prospective purchaser and at the closing of the sale of such Holdings
Notes, not misleading or so that the Offering Memorandum, as amended or
supplemented, will comply with applicable law.
10. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the several Purchasers, Holdings
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except as provided in
Section 8 with respect to affiliates, officers, directors, stockholders,
trustees, employees, representatives, agents and controlling persons of the
Purchasers. Nothing in this Agreement is intended or shall be construed to give
any person, other than the persons referred to in this Section 9, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
11. Expenses. Holdings agrees, whether or not the sale of the Units
hereunder or any other transactions contemplated hereby shall be consummated,
to pay and hold the Purchasers harmless against any and all liability for the
payment of all reasonable out-of-pocket fees and expenses arising in connection
with the preparation, negotiation, execution, delivery and performance of this
Agreement, the Units, the Private Placement Memorandum and any other
Transaction Documents, any other agreements, instruments or documents executed
pursuant thereto or in connection therewith, and the Transactions, including,
without limitation, (a) the fees and expenses of the Trustee or any paying
agent (including reasonable fees and expenses of counselor to such parties),
and (b) the reasonable fees and disbursements of Fried, Xxxxx, Xxxxxx, Xxxxxxx
& Xxxxxxxx, counsel to the Purchasers. Holdings agrees to pay all expenses
incurred by the Purchasers (including reasonable counsel fees and
disbursements) in connection with any amendment, waiver or consent requested by
Holdings under or with respect to this Agreement, the Indenture or the Units,
whether or not the same shall become effective. The obligations of Holdings
under this Section 11 shall survive the payment for or transfer of any Unit,
the enforcement of any provision hereof or thereof, any such amendments and
waivers or consents. The Purchasers shall not be responsible for any fees or
disbursements of the accountants or any other costs and expenses incident to
the performance of the obligations of Holdings under this Agreement which are
not otherwise specifically provided for in this Section 11.
12. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of Holdings and the Purchasers
contained in this Agreement or made by or on behalf of Holdings or the
Purchasers pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Units and shall remain
in full force and effect, regardless of any termination or cancellation of this
Agreement or
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28
any investigation made by or on behalf of any of them or any of their
respective affiliates, officers, directors, employees, representatives, agents
or controlling persons.
13. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing and delivered in person or overnight courier
service, mailed by first-class mail addressed as follows or delivered via
telecopy transmission:
(a) if to the Purchasers:
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
(telecopier no.: (000) 000-0000)
Attention: Xxx Xxxxx, Esq.
(b) if to Holdings:
00000 00xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
(telecopier no.: 727-561-2180)
Holdings or the Purchasers, by notice to the other party, may designate
additional or different addresses for subsequent notices or communications.
14. Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
16. Submission to Jurisdiction; Waiver of Service and Venue. (a) Each
of the parties hereto hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the U.S. District
Court of the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement, the Units or any other document, instrument or agreement executed or
delivered in connection herewith or therewith, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted
- 28 -
29
by law, in such federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement, the Units or any other document,
instrument or agreement executed or delivered in connection herewith or
therewith shall affect any right that the any of the parties hereto may
otherwise have to bring any action or proceeding relating to this Agreement,
the Units or any other document, instrument or agreement executed or delivered
in connection herewith or therewith against Holdings or their properties in the
courts of any jurisdiction.
(b) Each of the parties hereto hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement,
the Units or any other document, instrument or agreement executed or delivered
in connection herewith or therewith in any court referred to in Section 16(a).
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 13. Nothing in this
Agreement, the Units or any other document, instrument or agreement executed or
delivered in connection herewith or therewith will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.
17. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE UNITS
OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THEREWITH WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT, TORT OR OTHER THEORY. EACH PARTY HERETO (a)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
18. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
19. Entire Agreement and Amendments. (a) This Agreement represents the
entire agreement of the parties hereto and supersedes all prior agreements and
understandings, oral or
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30
written, if any, relating to the transactions contemplated in this Agreement
(including the Prior Commitment Letter); and (b) no amendment or waiver of any
provision of this Agreement, nor any consent or approval to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the parties hereto.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between Holdings and the several
Purchasers in accordance with its terms.
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31
[Signature Page to Senior Discount Notes Purchase Agreement]
Very truly yours,
MAXXIM MEDICAL, INC.,
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of the Board, President and
Chief Executive Officer
Accepted:
GS MEZZANINE PARTNERS, L.P.
By: GS Mezzanine Advisors, L.P.,
its general partner
By: GS Mezzanine Advisors, Inc.,
its general partner
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney-at-law
GS MEZZANINE PARTNERS OFFSHORE, L.P.
By: GS Mezzanine Advisors (Cayman), L.P.,
its general partner
By: GS Mezzanine Advisors, Inc.,
its general partner
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney-at-law
