Exhibit 4.1
THE GOODYEAR TIRE & RUBBER COMPANY
FLOATING RATE SENIOR NOTES DUE 2009
8.625% SENIOR NOTES DUE 2011
PURCHASE AGREEMENT
November 16, 2006
XXXXXXX, XXXXX & CO.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
The Goodyear Tire & Rubber Company, an Ohio corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to Xxxxxxx, Xxxxx & Co. (the "Purchaser") an aggregate of $500.0 million
principal amount of Floating Rate Senior Notes due 2009 (the "Floating Rate
Notes") and $500.0 million principal amount of 8.625% Senior Notes due 2011 (the
"Fixed Rate Notes" and, together with the Floating Rate Notes, the
"Securities"). The Securities will be issued pursuant to an indenture (the
"Indenture") to be dated as of November 21, 2006, among the Company, the
subsidiary guarantors signatory hereto (the "Subsidiary Guarantors") and Xxxxx
Fargo Bank, N.A., as trustee (the "Trustee") and will be guaranteed on an
unsecured senior basis by each of the Subsidiary Guarantors (the "Guarantees").
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Pricing Circular (as defined below).
The sale of the Securities to the Purchaser will be made without registration
under the Securities Act of 1933, as amended (the "Securities Act"), in reliance
upon exemptions from the registration requirements of the Securities Act.
1. The Company and each of the Subsidiary Guarantors, jointly and severally,
represent and warrant to, and agree with, the Purchaser that:
(a) A preliminary offering circular, dated November 16, 2006 (the
"Preliminary Offering Circular") and an offering circular, dated
November 16, 2006 (the "Offering Circular"), have been prepared in
connection with the offering of the Securities. The Preliminary
Offering Circular, as amended and supplemented immediately prior to
the Applicable Time (as defined in Section 1(b)), is hereinafter
referred to the "Pricing Circular". Any reference to the Preliminary
Offering Circular, the Pricing Circular or the Offering Circular shall
be deemed to refer to and include the Company's most recent Annual
Report on Form 10-K and all subsequent documents filed with the United
States Securities and Exchange Commission (the "Commission") pursuant
to Section 13(a), 13(c) or 15(d) of the United States Securities
Exchange Act of 1934, as amended (the "Exchange Act") (excluding
information furnished under Item 2.02 or Item 7.01 of any current
report on Form 8-K) on or prior to the date of such circular and any
reference to the Preliminary Offering Circular or the Offering
Circular, as the case may be, as amended or supplemented, as of any
specified date, shall be deemed to include (i) any documents filed
with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the
Exchange Act after the date of the Preliminary Offering Circular or
the Offering Circular, as the case may be, and prior to such specified
date (excluding information furnished under Item 2.02 or 7.01 of any
current report on Form 8-K) and (ii) any Additional Issuer Information
(as defined in Section 5(g)) furnished by the Company prior to the
completion of the distribution of the Securities; and all documents
filed under the Exchange Act and so deemed to be included in the
Preliminary Offering Circular, the Pricing Circular or the Offering
Circular, as the case may be, or any amendment or supplement thereto,
are hereinafter called the "Exchange Act Reports". The Exchange Act
Reports, when they were or are filed with the Commission, conformed or
will conform in all material respects to the applicable requirements
of the Exchange Act and the applicable rules and regulations of the
Commission thereunder; and no such documents were filed with the
Commission since the Commission's close of business on the business
day immediately prior to the date of this Agreement and prior to the
execution of this Agreement, except as set forth on Schedule I(a)
hereof. The Preliminary Offering Circular or the Offering Circular and
any amendments or supplements thereto and the Exchange Act Reports did
not and will not, as of their respective dates, contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by Xxxxxxx, Xxxxx &
Co. expressly for use therein;
(b) For the purposes of this Agreement, the "Applicable Time" is 4:00 p.m.
(Eastern time) on the date of this Agreement; the Pricing Circular as
supplemented by the information set forth in Schedule II hereto, taken
together (collectively, the "Pricing Disclosure Package") as of the
Applicable Time, did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and each Company Supplemental Disclosure
Document (as defined in Section 6(a)) listed on Schedule I(b) hereto
does not conflict with the information contained in the Pricing
Circular or the Offering Circular and each such Company Supplemental
Disclosure Document, as supplemented by and taken together with the
Pricing Disclosure Package as of the Applicable Time, did not
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include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty
shall not apply to statements or omissions made in a Company
Supplemental Disclosure Document in reliance upon and in conformity
with information furnished in writing to the Company by Xxxxxxx, Xxxxx
& Co. expressly for use therein;
(c) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included in the
Pricing Circular any loss or interference with its business that is
material to the Company and its subsidiaries taken as a whole from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, except as set forth or contemplated in the Pricing
Circular; and, since the respective dates as of which information is
given in the Pricing Circular, there has not been any change in the
capital stock (other than issuances pursuant to equity incentive
plans) or increase in long-term debt of the Company or any of its
subsidiaries that is material to the Company and its subsidiaries
taken as a whole, or any material adverse change, or any development
that would reasonably be expected to result in a material adverse
change, in or affecting the business, properties, financial position
or results of operations of the Company and its subsidiaries taken as
a whole, except as set forth or contemplated in the Pricing Circular.
As used in this Agreement, a "subsidiary" of any person means any
corporation, association, partnership or other business entity of
which more than 50% of the total voting power of shares of capital
stock or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by: (i) such person, (ii)
such person and one or more subsidiaries of such person or (iii) one
or more subsidiaries of such person;
(d) The Company and its subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except (i) such as are described in
the Pricing Circular or (ii) such as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries or (iii) such as could not reasonably be expected,
individually or in the aggregate, to have a material adverse effect on
the business, properties, financial position or results of operations
of the Company and its subsidiaries taken as a whole or on the
performance by the Company of its obligations under the Securities (a
"Material Adverse Effect") or (iv) "Permitted Liens" as defined in the
Indenture; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries taken as a
whole in any material respect;
(e) The Company and its subsidiaries own, license or otherwise 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, except where
the failure to own, license or otherwise possess such rights would not
reasonably be expected to have a Material Adverse Effect; and the
conduct of their respective businesses
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will not conflict in any respect with any such rights of others, and
the Company and, to the best of the Company's knowledge, its
subsidiaries, have not received written notice of any claim of
infringement of or conflict with any such rights of others, except in
each case such conflicts or infringements that, if adversely
determined against the Company or any of its subsidiaries, would not
reasonably be expected to have a Material Adverse Effect;
(f) The financial statements and the related notes thereto included in the
Pricing Circular present fairly in all material respects the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods
specified, in each case, on a consolidated basis; such financial
statements have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby; and the other financial
information included in the Pricing Circular has been derived from the
accounting records of the Company and its subsidiaries and presents
fairly in all material respects the information shown thereby;
(g) Since the date of the latest audited financial statements of the
Company included in the Pricing Circular, neither the Company nor any
of its subsidiaries has entered into any transaction or agreement that
is material to the Company and its subsidiaries taken as a whole or
incurred any liability or obligation, direct or contingent, that is
material to the Company and its subsidiaries taken as a whole, other
than as set forth in the Pricing Circular;
(h) Each of the Company and the Subsidiary Guarantors has been duly
organized and is validly existing and in good standing under the laws
of their respective jurisdictions of organization, with all requisite
power and authority (corporate and other) necessary to own its
properties and conduct its business as described in the Pricing
Circular, and has been duly qualified as a foreign corporation or
limited liability company for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require
such qualification, or is subject to no liability or disability that
is material to the Company and its subsidiaries taken as a whole by
reason of the failure to be so qualified or in good standing in any
such jurisdiction;
(i) The Company has an authorized capitalization as set forth in the
Pricing Circular, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable; and all of the issued shares of capital stock
or other equity interests of each significant subsidiary (for purposes
of this Section, as defined in Rule 1-02 of Regulation S-X under the
Exchange Act) of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for directors'
qualifying shares and except as otherwise set forth in the Pricing
Circular) the capital stock or other equity interests of each
Subsidiary Guarantor and each significant subsidiary is owned directly
or indirectly by the Company, free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer or
any other claim of any third party other than those which are
"Permitted Liens" as defined in the Indenture. Except as described in
the Pricing Circular, 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 the Company or any of its
significant subsidiaries;
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(j) Each of the Company and the Subsidiary Guarantors has full right,
corporate or limited liability company power, as applicable, and
authority to execute and deliver, as applicable, this Agreement, the
Securities, the Indenture (including each Guarantee set forth
therein), the Exchange Securities (as defined in the Indenture)
(including the related guarantees) and the Registration Rights
Agreements each dated as of the Time of Delivery among the Company,
the Subsidiary Guarantors and the Purchaser (the "Registration Rights
Agreements" and together with this Agreement, the Securities, the
Exchange Securities (including the related guarantees) and the
Indenture (including each Guarantee set forth therein), the
"Transaction Documents") and to perform their respective obligations
hereunder and thereunder; and all corporate or limited liability
company action, as applicable, required to be taken for the due and
proper authorization, execution and delivery of each of the
Transaction Documents and the consummation of the transactions
contemplated thereby has been duly and validly taken;
(k) The Indenture has been duly authorized by the Company and each of the
Subsidiary Guarantors 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 the Company and
each of the Subsidiary Guarantors enforceable against the Company and
each of the Subsidiary Guarantors in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles regardless of whether considered in a
proceeding in equity or at law (collectively, the "Enforceability
Exceptions"), and as of the Time of Delivery, the Indenture will
conform in all material respects to the requirements of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
rules and regulations of the Commission applicable to an indenture
qualified thereunder;
(l) The Securities have been duly authorized by the Company 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 the Company enforceable against the Company in
accordance with their terms, subject to the Enforceability Exceptions,
and will be entitled to the benefits of the Indenture; and the
Guarantees have been duly authorized by each of the Subsidiary
Guarantors and, when the Securities have been duly executed,
authenticated, issued and delivered as provided in the Indenture and
paid for as provided herein, will be valid and legally binding
obligations of each of the Subsidiary Guarantors, enforceable against
each of the Subsidiary Guarantors in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to the
benefits of the Indenture;
(m) As of the Time of Delivery, the Exchange Securities (including the
related guarantees) will have been duly authorized by the Company and
each of the Subsidiary Guarantors and, when duly executed,
authenticated, issued and delivered in accordance with the Indenture
and the Registration Rights Agreements, will be duly and validly
issued and outstanding and will constitute valid and legally binding
obligations of the Company, as issuer, and each of the Subsidiary
Guarantors, as guarantor, enforceable against the Company and each of
the Subsidiary Guarantors in accordance with their terms, subject to
the Enforceability Exceptions, and will be entitled to the benefits of
the Indenture;
(n) This Agreement has been duly authorized, executed and delivered by the
Company and each of the Subsidiary Guarantors; and the Registration
Rights Agreements have been duly
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authorized by the Company and each of the Subsidiary Guarantors and,
when duly executed and delivered in accordance with their terms by
each of the parties thereto, will constitute valid and legally binding
agreements of the Company and each of the Subsidiary Guarantors
enforceable against the Company and each of the Subsidiary Guarantors
in accordance with their terms, subject to the Enforceability
Exceptions, and except that rights to indemnity and contribution
thereunder may be limited by applicable law and public policy. There
are no other persons with registration rights or similar rights to
have any securities of the Company or the Subsidiary Guarantors other
than the Securities registered under a registration statement filed
under the Securities Act;
(o) Each Transaction Document conforms in all material respects to the
description thereof contained in the Pricing Circular and the Offering
Circular;
(p) None of the transactions contemplated by this Agreement (including,
without limitation, the use of the proceeds from the sale of the
Securities as described in the Pricing Circular) will violate or
result in a violation of Section 7 of the Exchange Act, or any
regulation promulgated thereunder, including, without limitation,
Regulations T, U, and X of the Board of Governors of the Federal
Reserve System;
(q) Prior to the date hereof, neither the Company nor any of its
affiliates (as defined in Rule 144 under the Securities Act) has taken
any action which is designed to or which has constituted or which
might have been expected to cause or result in stabilization or
manipulation of the price of any security of the Company in connection
with the offering of the Securities;
(r) The execution, delivery and performance by each of the Company and the
Subsidiary Guarantors of each of the Transaction Documents to which it
is a party, the issuance and sale of the Securities (including the
Guarantees) and the compliance by each of the Company and the
Subsidiary Guarantors with all of the provisions of the Transaction
Documents, and the consummation of the transactions herein and therein
contemplated will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, (ii) result in any
violation of the provisions of the Certificate of Incorporation or
By-laws of the Company or any of the Subsidiary Guarantors or (iii)
result in any violation of any law or statute or any judgment, order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach or violation that would
not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Company and the Subsidiary
Guarantors of the transactions contemplated by the Transaction
Documents, except for (i) such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and resale
of the Securities by the Purchaser and (ii) the filing of a
registration statement pursuant to the Securities Act by the Company
with the Commission pursuant to the Registration Rights Agreements;
(s) Neither the Company nor any of its subsidiaries is (i) in violation of
its Certificate of Incorporation or By-laws, (ii) in default in the
performance or observance of any obligation,
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covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound or
(iii) in violation of any statute, law, rule, regulation, judgment,
order or decree applicable to the Company or any of its subsidiaries
of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the
Company or such subsidiary or any of its properties, as applicable,
except, in the case of clauses (ii) and (iii), for any default or
violation that would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect;
(t) The statements set forth in the Pricing Circular and the Offering
Circular under the caption "Description of Notes", insofar as they
purport to constitute a summary of the terms of the Securities and the
Guarantees, and under the caption "Certain United States Federal
Income Tax Considerations", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair in all material respects;
(u) Other than as set forth in the Pricing Circular, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any
of its subsidiaries is the subject, which would be required to be
disclosed in the Company's Annual Report on Form 10-K if such report
were filed on the date hereof; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(v) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the
meaning of Rule 144A under the Securities Act) as securities which are
listed on a national securities exchange registered under Section 6 of
the Exchange Act or quoted in a U.S. automated inter-dealer quotation
system;
(w) The Company is subject to Section 13 or 15(d) of the Exchange Act;
(x) Neither the Company nor any of its subsidiaries is, and after giving
effect to the offering and sale of the Securities, none of them will
be an "investment company", as such term is defined in the United
States Investment Company Act of 1940, as amended (the "Investment
Company Act");
(y) Neither the Company, nor any person acting on its or their behalf
(other than the Purchaser, or any persons acting on its behalf, as to
which no representation is made), has (i) offered or sold the
Securities by means of any general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act or (ii)
engaged in any directed selling efforts within the meaning of
Regulation S under the Securities Act ("Regulation S"), and all such
persons have complied with the offering restrictions requirement of
Regulation S;
(z) Within the preceding six months, neither the Company nor any other
person acting on behalf of the Company has offered or sold to any
person any Securities, or any securities of the same or a similar
class as the Securities, other than Securities offered or sold to the
Purchaser hereunder. The Company will take reasonable precautions
designed to insure that any offer or sale, direct or indirect, in the
United States or to any U.S. person (as defined in Rule 902 under the
Securities Act) of any Securities or any substantially similar
security issued by the Company, within six months subsequent to the
date on which the distribution of the Securities has been completed
(as notified to the Company by the Purchaser), is made under
restrictions and other circumstances reasonably designed not to affect
the status of the offer and sale of the Securities in the United
States and to U.S. persons
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contemplated by this Agreement as transactions exempt from the
registration provisions of the Securities Act;
(aa) PricewaterhouseCoopers LLP, who have certified certain consolidated
financial statements of the Company and its consolidated subsidiaries,
are independent public accountants as required by the Securities Act
and the rules and regulations of the Commission thereunder within the
meaning of Rule 101 of the Code of Professional Conduct of the
American Institute of Certified Public Accountants and its
interpretations and rulings thereunder;
(bb) The Company and its subsidiaries have paid all federal, state, local
and foreign taxes (except for such taxes that are not yet delinquent
or that are being contested in good faith and by proper proceedings)
and filed all tax returns required to be paid or filed through the
date hereof, except in each case where the failure to pay or file
would not reasonably be expected to have a Material Adverse Effect;
and except as otherwise disclosed in the Pricing Circular or as would
not reasonably be expected to have a Material Adverse Effect, there is
no tax deficiency that has been, or could reasonably be expected to
be, asserted against the Company or any of its subsidiaries or any of
their respective properties or assets;
(cc) The Company and its subsidiaries possess all licenses, certificates,
permits and other authorizations issued by, and have made all
declarations and filings with, the appropriate federal, state, local
or foreign governmental or regulatory authorities that are necessary
for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in the Pricing
Circular, except where the failure to possess or make the same would
not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect; and except as described in the Pricing
Circular or as would not reasonably be expected to have a Material
Adverse Effect, neither the Company nor any of its subsidiaries has
received written notice of any revocation or modification of any such
license, certificate, permit or authorization or has any reason to
believe that any such license, certificate, permit or authorization
will not be renewed in the ordinary course;
(dd) Except as described in the Pricing Circular, no labor disturbance by
or dispute with employees of the Company or any of its subsidiaries
exists or, to the best knowledge of the Company, is contemplated or
threatened, in each case that would be reasonably expected to have a
Material Adverse Effect;
(ee) The Company and its subsidiaries (i) are in compliance with any and
all applicable federal, state, local and foreign laws, rules,
regulations, decisions and orders relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (collectively, "Environmental
Laws"); (ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses; and (iii)
have not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous
or toxic substances or wastes, pollutants or contaminants, except in
any such case for any such failure to comply with, or failure to
receive required permits, licenses or approvals, or liability, as
would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect;
(ff) Except as would not reasonably be expected to have a Material Adverse
Effect, each employee benefit plan, within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), that is maintained, administered or contributed to by the
Company or any of its affiliates for employees or former employees of
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the Company and its affiliates is in compliance in all material
respects with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited to
ERISA and the Internal Revenue Code of 1986, as amended (the "Code");
no prohibited transaction, within the meaning of Section 406 of ERISA
or Section 4975 of the Code, has occurred with respect to any such
plan excluding transactions effected pursuant to a statutory or
administrative exemption; and for each such plan that is subject to
the funding rules of Section 412 of the Code or Section 302 of ERISA,
except as set forth in the Pricing Circular, the fair market value of
the assets of each such plan (excluding for these purposes accrued but
unpaid contributions) exceeds the present value of all benefits
accrued under such plan determined using reasonable actuarial
assumptions, and no "accumulated funding deficiency" as defined in
Section 412 of the Code has been incurred, whether or not waived;
(gg) Except as would not reasonably be expected to have a Material Adverse
Effect, the Company and its subsidiaries maintain systems 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 accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences;
(hh) Other than as set forth in the Pricing Circular, since the date of the
latest audited financial statements included in the Pricing Circular,
there has been no change in the Company's internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company's internal control over
financial reporting;
(ii) The Company maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) of the Exchange Act) that comply with the
requirements of the Exchange Act; such disclosure controls and
procedures have been designed to ensure that material information
relating to the Company and its subsidiaries is made known to the
Company's principal executive officer and principal financial officer
by others within those entities; and such disclosure controls and
procedures are effective; and
(jj) Except as would not reasonably be expected to have a Material Adverse
Effect, the Company and 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 customary among companies of established reputation engaged in the
same or similar businesses and operating in the same or similar
locations; and neither the Company nor, to the best of the Company's
knowledge, any of the Company's subsidiaries, has (i) received written
notice from any insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be
made in order to continue such insurance or (ii) any reason to believe
that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage at
reasonable cost from similar insurers as may be necessary to continue
its business;
(kk) Except as would not reasonably be expected to have a Material Adverse
Effect, neither the Company nor any of its subsidiaries nor, to the
best knowledge of the Company, any director, officer, agent, employee
or other person associated with or acting on behalf of the
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Company 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 direct or
indirect 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 bribe, rebate, payoff, influence payment,
kickback or other unlawful payment;
(ll) On and immediately after the Time of Delivery, the Company (after
giving effect to the issuance of the Securities and the other
transactions related thereto as described in the Pricing Circular and
the Offering Circular) will be Solvent. As used in this paragraph, the
term "Solvent" means, with respect to a particular date, that on such
date (i) the present fair market value (or present fair saleable
value) of the assets of the Company is not less than the total amount
required to pay the liabilities of the Company on its total existing
debts and liabilities (including contingent liabilities) (which
liabilities are calculated for purposes of this representation in the
manner used in the preparation of the Company's consolidated financial
statements) as they become absolute and matured; (ii) the Company is
able to realize upon its assets and pay its debts and other
liabilities, contingent obligations and commitments as they mature and
become due in the normal course of business (assuming the ability to
refinance existing obligations in the normal course of business);
(iii) assuming consummation of the issuance of the Securities as
contemplated by this Agreement, the Pricing Circular and the Offering
Circular, the Company is not incurring debts or liabilities beyond its
ability to pay as such debts and liabilities mature (assuming the
ability to refinance existing obligations in the normal course of
business); and (iv) the Company is not engaged in any business or
transaction, and does not propose to engage in any business or
transaction, for which its property would constitute unreasonably
small capital after giving due consideration to the prevailing
practice in the industry in which the Company is engaged;
(mm) Neither the Company nor any of its affiliates (as defined in Rule
501(b) of Regulation D of the Securities Act) has, directly or through
any agent, sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any security (as defined in the
Securities Act), that is or will be integrated with the sale of the
Securities in a manner that would require registration of the
Securities under the Securities Act; and
(nn) Assuming the accuracy of the representations and warranties of the
Purchaser contained in Section 3 and its compliance with its
agreements set forth therein, it is not necessary, in connection with
the issuance and sale of the Securities to the Purchaser, the offer,
resale and delivery of the Securities by the Purchaser in the manner
contemplated by this Agreement and the Pricing Circular, to register
the Securities under the Securities Act or to qualify the Indenture
under the Trust Indenture Act.
2. Subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Purchaser, and the Purchaser agrees to purchase from
the Company, at a purchase price of 97.7% of the principal amount thereof,
in the case of the Floating Rate Notes, and 98.7% of the principal amount
thereof, in the case of the Fixed Rate Notes, in each case, plus accrued
interest from November 21, 2006 to the Time of Delivery hereunder, the
Securities.
3. Upon the authorization by you of the release of the Securities, the
Purchaser proposes to offer the Securities for sale upon the terms and
conditions set forth in this Agreement and the Offering Circular and the
Purchaser hereby represents and warrants to, and agrees with the Company
that:
10
(a) It will offer and sell the Securities only to: (i) persons who it
reasonably believes are "qualified institutional buyers" ("QIBs")
within the meaning of Rule 144A under the Act in transactions meeting
the requirements of Rule 144A or (ii) upon the terms and conditions
set forth in Annex I to this Agreement;
(b) It is an Institutional Accredited Investor within the meaning of Rule
501(a) under the Act;
(c) It will not offer or sell the Securities by any form of general
solicitation or general advertising, including but not limited to the
methods described in Rule 502(c) under the Act; and
(d) It acknowledges that the Securities have not been registered under the
Securities Act and may not be sold within the United States except
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
4. (a) The Securities to be purchased by the Purchaser hereunder will be
represented by one or more definitive global Securities in book-entry
form which will be deposited by or on behalf of the Company with The
Depository Trust Company ("DTC") or its designated custodian. The
Company will deliver the Securities to Xxxxxxx, Xxxxx & Co. against
payment by or on behalf of such Purchaser of the purchase price
therefor by wire transfer in Federal (same day) funds, by causing DTC
to credit the Securities to the account of Xxxxxxx, Xxxxx & Co. at
DTC. The Company will cause the form of certificates representing the
applicable Securities to be made available to Xxxxxxx, Xxxxx & Co. for
checking at least twenty-four hours prior to the Time of Delivery at
the office of DTC or its designated custodian (the "Designated
Office"). The time and date of such delivery and payment shall be 9:30
a.m., New York City time, on November 21, 2006 or such other time and
date as Xxxxxxx, Xxxxx & Co. and the Company may agree upon in
writing. Such time and date are herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on behalf
of the parties hereto pursuant to Section 8 hereof, including the
cross-receipt for the Securities and any additional documents
requested by the Purchaser pursuant to Section 8(h) hereof, will be
delivered at such time and date at the offices of Cravath, Swaine &
Xxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the "Closing
Location"), and the Securities will be delivered at the Designated
Office, all at the Time of Delivery.
5. The Company and each of the Subsidiary Guarantors, jointly and severally,
agree with the Purchaser:
(a) To prepare the Offering Circular in a form approved by you; to make no
amendment or any supplement to the Offering Circular which shall be
reasonably disapproved by you promptly after reasonable notice
thereof; and to furnish you with copies thereof;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may reasonably request
and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be
necessary to complete the offering and resale of the Securities,
provided that in connection therewith the Company shall not be
required (i) to qualify as a foreign corporation, (ii) to file a
general consent to service of process in any jurisdiction or (iii) to
take any action that would subject itself to taxation in any
jurisdiction if it is not otherwise so subject;
(c) To furnish the Purchaser with written and electronic copies of the
Offering Circular and each amendment or supplement thereto in such
quantities as you may from time to time
11
reasonably request, and if, at any time prior to the earlier of (i)
the expiration of nine months after the date of the Offering Circular
and (ii) completion of the resale of the Securities by the Purchaser,
any event shall have occurred as a result of which the Offering
Circular as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Offering Circular
is delivered, not misleading, or, if for any other reason it shall be
necessary or desirable (as determined by the Company) during such same
period to amend or supplement the Offering Circular, to notify you and
upon your request to prepare and furnish without charge to each
Purchaser and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of
an amended Offering Circular or a supplement to the Offering Circular
which will correct such statement or omission or effect such
compliance;
(d) To advise the Purchaser promptly, and confirm such advice in writing,
(i) of the issuance by any governmental or regulatory authority of any
order preventing or suspending the use of the Offering Circular or the
initiation or threatening of any proceeding for that purpose and (ii)
of the receipt by the Company of any notice with respect to any
suspension of the qualification of the Securities for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and the Company will use its commercially reasonable
efforts to prevent the issuance of any such order preventing or
suspending the use of the Offering Circular or suspending any such
qualification of the Securities and, if any such order is issued, will
obtain as soon as possible the withdrawal thereof;
(e) During the period beginning from the date hereof and continuing until
the date 90 days after the Time of Delivery, not to offer, sell,
contract to sell or otherwise dispose of, except as provided hereunder
any debt securities issued or guaranteed by the Company or any of the
Subsidiary Guarantors that are substantially similar to the Securities
without your prior written consent;
(f) Not to be or become, at any time prior to the expiration of two years
after the Time of Delivery, an open-end investment company, unit
investment trust, closed-end investment company or face-amount
certificate company that is or is required to be registered under
Section 8 of the Investment Company Act;
(g) So long as the Securities remain outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities
Act, at any time when the Company is not subject to Section 13 or
15(d) of the Exchange Act, for the benefit of holders from time to
time of Securities, to furnish at its expense, upon request, to
holders of Securities and prospective purchasers of Securities
information (the "Additional Issuer Information") satisfying the
requirements of subsection (d)(4)(i) of Rule 144A under the Act;
(h) If requested by you, to use its commercially reasonable efforts to
cause the Securities to be eligible for THE PORTALsm trading system of
the National Association of Securities Dealers, Inc. and for clearance
and settlement through DTC;
(i) Except if such information is available on the website of either the
Company or the Commission, to furnish to the holders of the Securities
as soon as practicable after the end of each fiscal year an annual
report (including a balance sheet and statements of income,
stockholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants)
and, as soon as practicable after the end of each of the first three
quarters of each fiscal year (beginning with the fiscal quarter ending
12
after the date of the Offering Circular), to make available to its
shareholders consolidated unaudited summary financial information of
the Company and its subsidiaries for such quarter in reasonable
detail;
(j) During a period of two years from the date of the Offering Circular,
to furnish to you copies of all reports or other communications
(financial or other) furnished to shareholders of the Company, and to
deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any securities exchange on which the Securities or any
class of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in
reports furnished to its shareholders generally or to the Commission);
(k) During the period of two years after the Time of Delivery, not to,
and not to permit any of its "affiliates" (as defined in Rule 144
under the Securities Act) to, resell any of the Securities which
constitute "restricted securities" under Rule 144 that have been
reacquired by any of them, except for Securities purchased by the
Company or any of its affiliates and resold in a transaction
registered under the Securities Act;
(l) To use the net proceeds received by it from the sale of the Securities
pursuant to this Agreement in the manner specified in the Pricing
Circular under the caption "Use of Proceeds";
(m) To not, and not permit any of its affiliates (as defined in Rule
501(b) of Regulation D) to, directly or through any agent, sell, offer
for sale, solicit offers to buy or otherwise negotiate in respect of,
any security (as defined in the Securities Act), that is or will be
integrated with the sale of the Securities in a manner that would
require registration of the Securities under the Securities Act;
(n) To not, and not permit any of its affiliates or any other person
acting on its or their behalf (other than the Purchaser, as to which
no covenant is given) (i) solicit offers for, or offer or sell, the
Securities by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) of Regulation D or in
any manner involving a public offering within the meaning of Section
4(2) of the Securities Act or (ii) engage in any directed selling
efforts within the meaning of Regulation S, and all such persons will
comply with the offering restrictions requirement of Regulation S; and
(o) To not take, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any stabilization
or manipulation of the price of the Securities.
6. (a) The Company and each Subsidiary Guarantor, jointly and severally,
represent and agree that, without the prior consent of Xxxxxxx, Xxxxx
& Co., it has not made and will not make any offer relating to the
Securities that, if the offering of the Securities contemplated by
this Agreement were conducted as a public offering pursuant to a
registration statement filed under the Act with the Commission, would
constitute an "issuer free writing prospectus," as defined in Rule 433
under the Act (any such offer is hereinafter referred to as a "Company
Supplemental Disclosure Document");
(b) the Purchaser represents and agrees that, without the prior consent of
the Company, other than one or more term sheets relating to the
Securities containing customary information and conveyed to purchasers
of securities, it has not made and will not make any offer relating to
13
the Securities that, if the offering of the Securities contemplated by
this Agreement were conducted as a public offering pursuant to a
registration statement filed under the Act with the Commission, would
constitute a "free writing prospectus," as defined in Rule 405 under
the Act (any such offer (other than any such term sheets), is
hereinafter referred to as a "Purchaser Supplemental Disclosure
Document"); and
(c) any Company Supplemental Disclosure Document or Purchaser Supplemental
Disclosure Document the use of which has been consented to by the
Company and Xxxxxxx, Xxxxx & Co. is listed on Schedule I(b) hereto.
7. The Company covenants and agrees with the Purchaser that the Company will
pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
issue of the Securities and all other expenses in connection with the
preparation and printing of the Preliminary Offering Circular and the
Offering Circular and any amendments and supplements thereto and the
mailing and delivering of copies thereof to the Purchaser and dealers; (ii)
the cost of printing or producing this Agreement, the Guarantees, the
Registration Rights Agreements, the Indenture, the Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of
the Securities; (iii) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Purchaser in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; (iv) any fees
charged by securities rating services for rating the Securities; (v) the
cost of preparing the Securities; (vi) the fees and expenses of the Trustee
and any agent of the Trustee and the fees and disbursements of counsel for
the Trustee in connection with the Indenture and the Securities; (vii) any
cost incurred in connection with the designation of the Securities for
trading in PORTALsm and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 9 and 11 hereof, the
Purchaser will pay all of its own costs and expenses, including the fees of
its counsel, transfer taxes on resale of any of the Securities by the
Purchaser, and any advertising expenses connected with any offers they may
make.
8. The obligations of the Purchaser hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and
other statements of the Company and the Subsidiary Guarantors herein are,
at and as of the Time of Delivery, true and correct, the condition that the
Company and the Subsidiary Guarantors shall have performed all of their
respective obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) Xxxxxxx, Xxxxxx & Xxxxx LLP, counsel for the Purchaser, shall have
furnished to you such opinion or opinions, dated as of the Time of
Delivery with respect to such matters as you may reasonably request,
and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(b) X. Xxxxxx Xxxxxx, Esq., Senior Vice President, General Counsel and
Secretary of the Company, Xxxxxxxxx & Xxxxxxx, counsel for the
Company, and Fasken Xxxxxxxxx XxXxxxxx LLP, counsel for Goodyear
Canada, Inc., shall have furnished to you their written opinion, dated
as of the Time of Delivery in form and substance satisfactory to you,
substantially in the forms set forth in Xxxxx XX hereto;
14
(c) On the date of the Offering Circular prior to the execution of this
Agreement and also as of the Time of Delivery, PricewaterhouseCoopers
LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance
satisfactory to you, substantially in the form set forth in Annex III
hereto;
(d) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Pricing Circular any loss or interference with the
business of the Company and its subsidiaries taken as a whole from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Pricing Circular, and (ii) since the respective dates as of which
information is given in the Pricing Circular there shall not have been
any change in the capital stock (other than issuances pursuant to
equity incentive plans) or increase in long-term debt of the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries taken as a whole, or any change, or any development that
would reasonably be expected to result in a change, in or affecting
the business, properties, financial position or results of operations
of the Company and its subsidiaries taken as a whole, otherwise than
as set forth or contemplated in the Pricing Circular, the effect of
which, in any such case described in clause (i) or (ii), is in the
judgment of Xxxxxxx, Xxxxx & Co. so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or the
delivery of the Securities on the terms and in the manner contemplated
in this Agreement and in the Offering Circular;
(e) From immediately prior to the Applicable Time (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities by
Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings Group,
and (ii) neither Xxxxx'x Investors Service, Inc. or Standard & Poor's
Ratings Group shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities;
(f) From immediately prior to the Applicable Time there shall not have
occurred any of the following: (i) a suspension or material limitation
in trading in securities generally on the New York Stock Exchange;
(ii) a suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New
York State authorities or a material disruption in commercial banking
or securities settlement or clearance services in the United States;
(iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency
or war or (v) the occurrence of any other calamity or crisis or any
change in financial, political or economic conditions in the United
States or elsewhere, if the effect of any such event specified in
clause (iv) or (v) in the judgment of Xxxxxxx, Xxxxx & Co. makes it
impracticable or inadvisable to proceed with the offering or the
delivery of the Securities on the terms and in the manner contemplated
in the Offering Circular;
(g) The Securities have been designated for trading on PORTALsm;
(h) The Company shall have furnished or caused to be furnished to you as
of the Time of Delivery the certificate of an officer of the Company
reasonably satisfactory to you as to the accuracy of the
representations and warranties of the Company and the Subsidiary
Guarantors herein at and as of the Time of Delivery, as to the
performance by the Company and the Subsidiary Guarantors of all of
their respective obligations hereunder to be
15
performed at or prior to the Time of Delivery, as to the matters set
forth in subsections (d) and (e) of this Section and as to such other
matters as you may reasonably request; and
(i) The Purchaser shall have received as of the Time of Delivery
counterparts of the Registration Rights Agreements that shall have
been executed and delivered by a duly authorized officer of the
Company and each of the Subsidiary Guarantors.
9. (a) The Company and each of the Subsidiary Guarantors, jointly and
severally, will indemnify and hold harmless the Purchaser against any
losses, claims, damages or liabilities, joint or several, to which the
Purchaser may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Offering Circular, the Pricing Circular, the Offering Circular, or any
amendment or supplement thereto, or any Company Supplemental
Disclosure Document, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary to make
the statements therein not misleading, and will reimburse the
Purchaser for any legal or other expenses reasonably incurred by the
Purchaser in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that
the Company and each of the Subsidiary Guarantors shall not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Offering Circular, the Pricing Circular, the Offering
Circular or any such amendment or supplement, or any Company
Supplemental Disclosure Document, in reliance upon and in conformity
with written information furnished to the Company by the Purchaser
through Xxxxxxx, Xxxxx & Co. expressly for use therein.
(b) The Purchaser will indemnify and hold harmless the Company and each of
the Subsidiary Guarantors against any losses, claims, damages or
liabilities to which the Company or any of the Subsidiary Guarantors
may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Offering
Circular, the Pricing Circular, the Offering Circular, or any
amendment or supplement thereto, or any Company Supplemental
Disclosure Document, or arise out of or are based upon the omission or
alleged omission to state therein a material fact or necessary to make
the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Offering Circular, the Pricing Circular, the Offering Circular or any
such amendment or supplement, or any Company Supplemental Disclosure
Document in reliance upon and in conformity with written information
furnished to the Company by the Purchaser expressly for use therein;
and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise
than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the
16
indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof,
the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect
to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not
include a statement as to, or an admission of, fault, culpability or a
failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable
to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company and the Subsidiary Guarantors on the one hand and the
Purchaser on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the
Company and the Subsidiary Guarantors on the one hand and the
Purchaser on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Subsidiary Guarantors on the one hand and the Purchaser on the other
shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by
the Purchaser, in each case as set forth in the Offering Circular. The
relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Subsidiary
Guarantors on the one hand or the Purchaser on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company, the Subsidiary Guarantors and the Purchaser agree that it
would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred
17
by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this subsection (d), the Purchaser shall not be required to contribute
any amount in excess of the amount by which the total price at which
the Securities purchased by it and distributed to investors were
offered to investors exceeds the amount of any damages which the
Purchaser has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of fraudulent misrepresentation.
(e) The obligations of the Company and the Subsidiary Guarantors under
this Section 9 shall be in addition to any liability which the Company
and the Subsidiary Guarantors may otherwise have and shall extend,
upon the same terms and conditions, to any affiliate of each Purchaser
and each person, if any, who controls any Purchaser within the meaning
of the Act; and the obligations of the Purchaser under this Section 9
shall be in addition to any liability which the Purchaser may
otherwise have and shall extend, upon the same terms and conditions,
to each officer and director of the Company and the Subsidiary
Guarantors and to each person, if any, who controls the Company within
the meaning of the Act.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Subsidiary Guarantors and the
Purchaser, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of the Purchaser or any controlling person of
the Purchaser, or the Company, or the Subsidiary Guarantors, or any officer
or director or controlling person of the Company, or the Subsidiary
Guarantors, and shall survive delivery of and payment for the Securities.
11. If the Securities are not delivered by or on behalf of the Company as
provided herein, the Company and the Subsidiary Guarantors will reimburse
the Purchaser through you for all expenses approved in writing by you,
including fees and disbursements of counsel, reasonably incurred by the
Purchaser in making preparations for the purchase, sale and delivery of the
Securities, but the Company and the Subsidiary Guarantors shall then be
under no further liability to the Purchaser except as provided in Sections
7 and 9 hereof.
All statements, requests, notices and agreements hereunder shall be in writing,
and if to the Purchaser shall be delivered or sent by mail, telex or facsimile
transmission to Xxxxxxx, Xxxxx & Co., Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Registration Department; and if to the Company shall
be delivered or sent by mail, telex or facsimile transmission to the address of
the Company set forth in the Offering Circular, Attention: Secretary; and if to
any Subsidiary Guarantor, shall be delivered or sent by mail, telex or facsimile
transmission care of the Company.
12. This Agreement shall be binding upon, and inure solely to the benefit of,
the Purchaser, the Company, the Subsidiary Guarantors and, to the extent
provided in Sections 9 and 10 hereof, the officers and directors of the
Company, the Subsidiary Guarantors and each person who controls the
Company, the Subsidiary Guarantors or the Purchaser, and their respective
heirs, executors, administrators, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Purchaser shall
be deemed a successor or assign by reason merely of such purchase.
13. The Company and each Subsidiary Guarantor acknowledges and agrees that (i)
the purchase and sale of the Securities pursuant to this Agreement is an
arm's-length commercial transaction
18
between the Company and the Subsidiary Guarantors, on the one hand, and the
Purchaser, on the other, (ii) in connection therewith and with the process
leading to such transaction each Purchaser is acting solely as a principal
and not the agent or fiduciary of the Company or any Subsidiary Guarantor,
(iii) the Purchaser has not assumed an advisory or fiduciary responsibility
in favor of the Company or any Subsidiary Guarantor with respect to the
offering contemplated hereby or the process leading thereto (irrespective
of whether such Purchaser has advised or is currently advising the Company
or any Subsidiary Guarantor on other matters) or any other obligation to
the Company or any Subsidiary Guarantor except the obligations expressly
set forth in this Agreement and (iv) the Company and each Subsidiary
Guarantor has consulted its own legal and financial advisors to the extent
it deemed appropriate. The Company and each Subsidiary Guarantor agrees
that it will not claim that the Purchaser, or any of them, has rendered
advisory services of any nature or respect, or owes a fiduciary or similar
duty to the Company or any Subsidiary Guarantor, in connection with such
transaction or the process leading thereto.
14. This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company, the Subsidiary Guarantors and the
Purchaser, or any of them, with respect to the subject matter hereof.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
16. The Company, the Subsidiary Guarantors and the Purchaser hereby irrevocably
waive, to the fullest extent permitted by applicable law, any and all right
to trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
17. This Agreement may be executed by any one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute
one and the same instrument.
18. Notwithstanding anything herein to the contrary, the Company (and the
Company's employees, representatives, and other agents) are authorized to
disclose to any and all persons, the tax treatment and tax structure of the
potential transaction and all materials of any kind (including tax opinions
and other tax analyses) provided to the Company relating to that treatment
and structure, without the Purchaser imposing any limitation of any kind.
However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to
the extent necessary to enable any person to comply with securities laws.
For this purpose, "tax treatment" means U.S. federal and state income tax
treatment, and "tax structure" is limited to any facts that may be relevant
to that treatment.
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and the Purchaser plus one for each counsel
counterparts hereof, and upon the acceptance hereof by you, on behalf of the
Purchaser, this letter and such acceptance hereof shall constitute a binding
agreement between the Purchaser, the Company and the Subsidiary Guarantors.
19
Very truly yours,
THE GOODYEAR TIRE & RUBBER COMPANY
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President,
Business Development and
Treasurer
[Purchase Agreement]
SUBSIDIARY GUARANTORS
BELT CONCEPTS OF AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
CELERON CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
COSMOFLEX, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
DAPPER TIRE CO, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
[Purchase Agreement]
DIVESTED COMPANIES HOLDING COMPANY
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
DIVESTED LITCHFIELD PARK PROPERTIES,
INC.
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
[Purchase Agreement]
GOODYEAR CANADA INC.
By: /s/ X. X. Xxxxxxx
------------------------------------
Name: X. X. Xxxxxxx
Title: President
By: /s/ X. X. Xxxxxxxx
------------------------------------
Name: X. X. Xxxxxxxx
Title: Secretary
GOODYEAR ENGINEERED PRODUCTS
INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
GOODYEAR ENGINEERED PRODUCTS THAILAND
INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
GOODYEAR FARMS, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
[Purchase Agreement]
GOODYEAR INTERNATIONAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
GOODYEAR WESTERN HEMISPHERE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
THE KELLY-SPRINGFIELD TIRE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
WHEEL ASSEMBLIES INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
WINGFOOT COMMERCIAL TIRE SYSTEMS, LLC
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
[Purchase Agreement]
WINGFOOT VENTURES EIGHT INC.
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
[Purchase Agreement]
Accepted as of the date hereof:
XXXXXXX, XXXXX & CO.
BY /s/ Xxxxxxx, Xxxxx & Co.
----------------------------------
(Xxxxxxx, Xxxxx & Co.)
[Purchase Agreement]
SCHEDULE I
(a) Additional Documents Incorporated by Reference: None.
(b) Approved Supplemental Disclosure Documents: None.
SCHEDULE II
FLOATING RATE NOTES:
Issuer: Goodyear Tire & Rubber Company
Ratings: B2 / B-
Security: Senior Floating Rate Notes
Distribution: 144A / Reg S with Registration Rights
Maturity: December 1, 2009
Face Amount: $500,000,000
Gross Proceeds: $495,000,000
Coupon: 6mL + 375
Price: 99.000%
Settlement Date: November 21, 2006.(T+3)
Accrued Interest: Flat
Interest Payment Dates: June 1st and December 1st
beginning June 1, 2007
Redemption: Callable for life at 100.00%
Sole Book Running Manager: Xxxxxxx Xxxxx
Co-Managers BNP Paribas Securities Corp., Deutsche Bank Securities Inc.
Bond Identifiers: 144A: CUSIP: 382550 AV 3
ISIN: US382550AV33
Reg S: CUSIP: U38255 AL 6
ISIN: USU38255AL67
FIXED RATE NOTES:
Issuer: Goodyear Tire & Rubber Company
Ratings: B2 / B-
Security: Senior Notes
Distribution: 144A / Reg S with Registration Rights
Maturity: December 1, 2011
Face Amount: $500,000,000
Gross Proceeds: $500,000,000
Coupon: 8.625%
Price: 100.000%
Yield: 8.625%
Settlement Date: November 21, 2006.(T+3)
Accrued Interest: Flat
Interest Payment Dates: June 1st and December 1st
beginning June 1, 2007
Redemption: Beginning December 1, 2009:
December 1, 2009 104.313%
December 1, 2010 102.156%
December 1, 2011 100.000%
Equity Clawback: Prior to December 1, 2009 may redeem up to 35.00% at: 108.625%
Spread to Treasury: + 395
Reference Treasury: 4.625% UST due 10/2011
Sole Book Running Manager: Xxxxxxx Xxxxx
Co-Managers BNP Paribas Securities Corp., Deutsche Bank Securities Inc.
Bond Identifiers: 144A: CUSIP: 382550 AW 1
ISIN: US382550AW16
Reg S: CUSIP: U38255 AM 4
ISIN: USU38255AM41
ANNEX I
(1) The Securities have not been and will not be registered under the Act and
may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S
under the Act or pursuant to an exemption from the registration
requirements of the Act. The Purchaser represents that it has offered and
sold the Securities, and will offer and sell the Securities (i) as part of
their distribution at any time and (ii) otherwise until 40 days after the
later of the commencement of the offering and the Time of Delivery, only in
accordance with Rule 903 of Regulation S or Rule 144A under the Act.
Accordingly, the Purchaser agrees that neither it, its affiliates nor any
persons acting on its behalf has engaged or will engage in any directed
selling efforts with respect to the Securities, and it and they have
complied and will comply with the offering restrictions requirement of
Regulation S. The Purchaser agrees that, at or prior to confirmation of
sale of Securities (other than a sale pursuant to Rule 144A), it will have
sent to each distributor, dealer or person receiving a selling concession,
fee or other remuneration that purchases Securities from it during the
restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered and
sold within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and the
closing date, except in either case in accordance with Regulation S (or
Rule 144A if available) under the Securities Act. Terms used above have the
meaning given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation
S.
The Purchaser further agrees that it has not entered and will not enter
into any contractual arrangement with respect to the distribution or
delivery of the Securities, except with its affiliates or with the prior
written consent of the Company.
(2) Notwithstanding the foregoing, Securities in registered form may be
offered, sold and delivered by the Purchaser in the United States and to
U.S. persons pursuant to Section 3 of this Agreement without delivery of
the written statement required by paragraph (1) above.
(3) The Purchaser agrees that it will not offer, sell or deliver any of the
Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws
thereof, and that it will take at its own expense whatever action is
required to permit its purchase and resale of the Securities in such
jurisdictions. The Purchaser understands that no action has been taken to
permit a public offering in any jurisdiction outside the United States
where action would be required for such purpose.
ANNEX II
[FORMS OF OPINION OF FASKEN XXXXXXXXX XXXXXXXX LLP, X. XXXXXX XXXXXX, ESQ.,
AND XXXXXXXXX & XXXXXXX]
ANNEX III
[FORM OF COMFORT LETTER OF PWC]
