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Exhibit 2.4
EXECUTION COPY
WESCO DISTRIBUTION, INC.
$100,000,000
9-1/8% Senior Subordinated Notes due 2008
PURCHASE AGREEMENT
August 16, 2001
X.X. XXXXXX SECURITIES INC.
XXXXXX BROTHERS INC.
PNC CAPITAL MARKETS, INC.
TD SECURITIES (USA) INC.
BNY CAPITAL MARKETS, INC.
ABN AMRO INCORPORATED
COMERICA SECURITIES
FLEET SECURITIES, INC.
SCOTIA CAPITAL (USA) INC.
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
WESCO Distribution, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $100,000,000 aggregate principal amount of its 9-1/8%
Senior Subordinated Notes due 2008 (the "Securities"). The Securities will be
issued pursuant to an Indenture to be dated as of August 23, 2001 (the
"Indenture"), among the Company, WESCO International, Inc., a Delaware
corporation ("Holdings") and Bank One, N.A., as trustee (the "Trustee") and will
be guaranteed on an unsecured senior subordinated basis by Holdings. The Company
and Holdings hereby confirm their agreement with X.X. Xxxxxx Securities Inc.
("XX Xxxxxx"), Xxxxxx Brothers Inc., ABN AMRO Incorporated, BNY Capital Markets,
Inc., Comerica Securities, Fleet Securities, Inc., PNC Capital Markets, Inc.,
Scotia Capital (USA) Inc. and TD Securities (USA) Inc. (together with JPMorgan,
the "Initial Purchasers") concerning the purchase of the Securities from the
Company by the several Initial Purchasers.
The Securities will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon an exemption therefrom. The Company and
Holdings have prepared a preliminary offering memorandum dated August 8, 2001
(the "Preliminary Offering Memorandum"), and will prepare an offering memorandum
dated the date hereof (the "Offering Memorandum") setting forth information
concerning the Company, Holdings and the Securities. Copies of the Preliminary
Offering Memorandum have been, and copies of the Offering Memorandum will be,
delivered by the Company and Holdings to the Initial Purchasers pursuant to the
terms of this Agreement. Any references herein to
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the Preliminary Offering Memorandum and the Offering Memorandum shall be deemed
to include all amendments and supplements thereto, unless otherwise noted. The
Company and Holdings hereby confirm that they have authorized the use of the
Preliminary Offering Memorandum and the Offering Memorandum in connection with
the offering and resale of the Securities by the Initial Purchasers in
accordance with Section 2.
Holders of the Securities (including the Initial 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
Annex A (the "Registration Rights Agreement"), pursuant to which the Company
will agree to file with the Securities and Exchange Commission (the
"Commission") (i) a registration statement under the Securities Act (the
"Exchange Offer Registration Statement") registering an issue of senior
subordinated notes of the Company (the "Exchange Securities") which are
identical in all material respects to the Securities (except that the Exchange
Securities will not contain terms with respect to transfer restrictions) and
(ii) under certain circumstances, a shelf registration statement pursuant to
Rule 415 under the Securities Act (the "Shelf Registration Statement").
Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Offering Memorandum.
1. Representations, Warranties and Agreements of the Company and
Holdings. The Company and Holdings represent and warrant to, and agree with, the
several Initial Purchasers on and as of the date hereof and the Closing Date (as
defined in Section 3) that:
(a) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, did not, and on the Closing Date the
Offering Memorandum will 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 the Company and Holdings
make no representation or warranty as to information contained in or omitted
from the Preliminary Offering Memorandum or the Offering Memorandum in reliance
upon and in conformity with written information relating to the Initial
Purchasers furnished to the Company or Holdings by or on behalf of any Initial
Purchaser specifically for use therein (the "Initial Purchasers' Information").
(b) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, contains all of the information that, if
requested by a prospective purchaser of the Securities, would be required to be
provided to such prospective purchaser pursuant to Rule 144A(d)(4) under the
Securities Act.
(c) Assuming the accuracy of the representations and warranties of the
Initial 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 Securities to the Initial Purchasers and the offer,
resale and delivery of the Securities by the Initial Purchasers in the manner
contemplated by this Agreement and the Offering Memorandum, to register the
Securities under the Securities Act or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
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(d) The Company, Holdings and each "significant subsidiary" (within the
meaning of Rule 1-02 of Regulation S-X) of the Company and Holdings 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 requisite corporate 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, be in good standing or have such power
or authority would not, singularly or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), results of operations,
business or prospects of the Company and Holdings and their respective
subsidiaries taken as a whole (a "Material Adverse Effect").
(e) As of the Closing Date, Holdings (on a consolidated basis) will
have an as adjusted capitalization as set forth in the Offering Memorandum under
the heading "Capitalization". All of the outstanding shares of capital stock of
each "significant subsidiary" (within the meaning of Rule 1-02 of Regulation
S-X) of the Company and Holdings have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or indirectly
by the Company or Holdings, free and clear of any lien, charge, encumbrance,
security interest, restriction upon voting or transfer or any other claim of any
third party, other than those incurred in connection with the Credit Agreement.
CDW Realco, Inc. and WESCO Receivables Corp. are the only "significant
subsidiaries" (within the meaning of Rule 1-02 of Regulation S-X) of the Company
on the date hereof. The Company is the only direct subsidiary of Holdings on the
date hereof.
(f) The Company and Holdings have all requisite corporate right, power
and authority to execute and deliver this Agreement, the Indenture, the
Registration Rights Agreement and the Securities (in the case of the Company
only) (collectively, the "Transaction Documents") 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 and the consummation of the
transactions contemplated thereby has been duly and validly taken.
(g) This Agreement has been duly authorized, executed and delivered by
the Company and Holdings.
(h) The Registration Rights Agreement has been duly authorized by the
Company and 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 the Company and Holdings enforceable against the Company
and Holdings in accordance with its terms, except to the extent that such
enforceability 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).
(i) The Indenture has been duly authorized by the Company and 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
the Company and Holdings enforceable against the Company and Holdings in
accordance with its terms,
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except to the extent that such enforceability 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.
(j) The Securities have been duly authorized by the Company and
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 the Company, as issuer, and Holdings, as guarantor, entitled to
the benefits of the Indenture and enforceable against the Company, as issuer,
and Holdings, as guarantor, in accordance with their terms, except to the extent
that such enforceability 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).
(k) Each Transaction Document conforms in all material respects to the
description thereof contained in the Offering Memorandum.
(l) The execution, delivery and performance by the Company and Holdings
and each of their respective subsidiaries of each of the Transaction Documents
to which each is a party, the issuance, authentication, sale and delivery of the
Securities and compliance by the Company and Holdings with the terms thereof and
the consummation of the transactions contemplated by the Transaction Documents
will not conflict with or contravene, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company,
Holdings or any of their respective subsidiaries pursuant to, (i) the charter or
by-laws of either of the Company and Holdings, as amended or restated to the
date hereof, (ii) any agreement or other instrument binding upon the Company,
Holdings or any of their respective subsidiaries or their respective assets or
(iii) any provision of applicable law or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
Holdings or any of their respective subsidiaries or their respective assets,
except, in the case of clause (ii) and (iii), for conflicts, contraventions,
liens, charges or encumbrances which would not, singularly or in the aggregate,
have a Material Adverse Effect. No consent, approval, authorization or order of,
or qualification with, any governmental body or agency is required for the
execution, delivery and performance by the Company and Holdings of each of the
Transaction Documents to which each is a party, the issuance, authentication,
sale and delivery of the Securities and compliance by the Company and Holdings
with the terms thereof and the consummation of the transactions contemplated by
the Transaction Documents, except for such consents, approvals, authorizations
or qualifications (i) which shall have been obtained or made prior to the
Closing Date, (ii) as may be required to be obtained or made under the
Securities Act as provided in the Registration Rights Agreement and under
applicable state or foreign securities laws and (iii) the failure to obtain
would not, singularly or in the aggregate, have a Material Adverse Effect.
(m) PricewaterhouseCoopers LLP are independent certified public
accountants with respect to the Company, Holdings and their respective
subsidiaries
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within the meaning of Rule 101 of the Code of Professional Conduct of the
American Institute of Certified Public Accountants ("AICPA") and its
interpretations and rulings thereunder. The historical financial statements
(including the related notes) contained in the Offering Memorandum have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods covered thereby and fairly present
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 financial information
contained in the Offering Memorandum under the headings "Selected Consolidated
Financial Data", "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and Item 11, "Executive Compensation", of Holdings'
10-K filed December 31, 2000 with the Commission are derived from the accounting
records of the Company and Holdings and their respective subsidiaries and fairly
present the information purported to be shown thereby.
(n) There are no legal or governmental proceedings pending or, to the
knowledge of the Company or Holdings, threatened to which the Company or
Holdings or any of their respective subsidiaries is a party or to which any
property or assets of either of the Company or Holdings or any of their
respective subsidiaries is subject other than proceedings that could not,
singularly or in the aggregate, reasonably be expected to have a Material
Adverse Effect or have a material adverse effect on the power or ability of the
Company or Holdings or any of their respective subsidiaries to perform its
obligations under the applicable Transaction Documents or to consummate the
transactions contemplated by the applicable Transaction Documents or the
Offering Memorandum.
(o) No action has been taken by the Company or Holdings or their
respective subsidiaries 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 Securities or suspends the sale of the Securities 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
the Company or Holdings or any of their respective subsidiaries which would
prevent or suspend the issuance or sale of the Securities or the use of the
Preliminary Offering Memorandum or the Offering Memorandum in any jurisdiction;
no action, suit or proceeding is pending against or, to the knowledge of the
Company or Holdings, threatened against or affecting the Company, Holdings or
any of their respective 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
Securities 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; and the Company and Holdings have complied with any and all requests by
any securities authority in any jurisdiction for additional information to be
included in the Preliminary Offering Memorandum and the Offering Memorandum.
(p) None of the Company, Holdings or any of their respective
"significant subsidiaries" (within the meaning of Rule 1-02 of Regulation S-X)
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
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which it is bound or to which any of its property or assets is subject 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 may be subject, except, in
the case of clauses (ii) or (iii), as would not have a Material Adverse Effect.
(q) Except as would not, singularly or in the aggregate, have a
Material Adverse Effect, the Company, Holdings and each of their respective
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
desirable for the ownership of their respective properties or the conduct of
their respective businesses as described in the Offering Memorandum, and none of
the Company, Holdings or any of their respective 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.
(r) The Company, Holdings and each of their respective subsidiaries
have filed all federal, state, local and foreign income and franchise tax
returns required to be filed through the date hereof and have paid all taxes due
thereon, and no tax deficiency has been determined adversely to the Company,
Holdings or any of their respective subsidiaries which has had (nor do the
Company, Holdings or any of their respective subsidiaries have any knowledge of
any tax deficiency which, if determined adversely to the Company, Holdings or
any of their respective subsidiaries, could reasonably be expected to have) a
Material Adverse Effect.
(s) Neither the Company nor Holdings is and, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Offering Memorandum, will be an "investment company" or an
entity "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.
(t) The Company, Holdings and each of their respective 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 adequate to protect the Company, Holdings and each of their
respective subsidiaries and each of their respective businesses.
(u) The Company, Holdings and each of their respective 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 the Company, Holdings and their respective 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 the Company, Holdings and
their respective subsidiaries or (ii) could not reasonably be expected to have a
Material Adverse Effect.
(v) No labor disturbance by or dispute with the employees of the
Company, Holdings or any of their respective subsidiaries exists or, to the best
knowledge of the Company or Holdings, is contemplated or threatened, except as
would not have a Material Adverse Effect.
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(w) 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 "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 the
Company, Holdings or any of their respective subsidiaries which could reasonably
be expected to have a Material Adverse Effect; each such employee benefit plan
is in compliance in all respects with applicable law, including ERISA and the
Code, except as would not have a Material Adverse Effect; the Company, Holdings
and each of their respective 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 the Company, Holdings or any of its
subsidiaries would have any liability, except as would not have a Material
Adverse Effect; and each such pension plan that is intended to be qualified
under Section 401(a) of the Code is so qualified in all 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, except as would not have a
Material Adverse Effect.
(x) Except as specifically described in the Offering Memorandum, there
are no costs or liabilities of the Company, Holdings or any of their respective
subsidiaries associated with or arising from the application of any and all
applicable foreign, federal, state and local laws, rules, ordinances, directives
and regulations relating to the protection of human health and safety, the
protection or restoration of the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws") (including, without
limitation, any capital or operating expenditures required for investigation,
clean-up, closure or monitoring of currently or formerly owned or operated
properties or compliance with any Environmental Laws or any permits, licenses or
other approvals required of the Company, Holdings or any of their respective
subsidiaries under Environmental Laws to conduct their respective businesses,
any related constraints on operating activities and any actual or potential
liabilities, costs or obligations to third parties, including governmental
authorities) which would, singularly or in the aggregate, have a Material
Adverse Effect.
(y) On and immediately after the Closing Date, each of the Company and
Holdings (after giving effect to the issuance of the Securities and to the other
transactions related thereto as described in the Offering Memorandum) 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 each of the Company and Holdings is not
less than the total amount required to pay the probable liabilities on its total
existing debts and liabilities (including contingent liabilities) as they become
absolute and matured, (ii) each of the Company and Holdings 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,
(iii) assuming the sale of the Securities as contemplated by this Agreement and
the Offering Memorandum, neither the Company nor Holdings is incurring debts or
liabilities beyond its ability to pay as such debts and liabilities mature; and
(iv) neither the Company nor Holdings is engaged in any business or transaction,
and neither of them is about to engage in any business or transaction, for which
its property would constitute
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unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which each of the Company and 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.
(z) None of the Company, Holdings or any of their respective
subsidiaries owns any "margin securities" as that term is defined in Regulation
U of the Board of Governors of the Federal Reserve System (the "Federal Reserve
Board"), and none of the proceeds of the sale of the Securities 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 Securities to be considered a "purpose
credit" within the meanings of Regulation T, U or X of the Federal Reserve
Board.
(aa) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(bb) None of the Company, Holdings, any of their respective affiliates
or any person acting on their behalf (other than the Initial Purchasers) has
engaged or will engage in any directed selling efforts (as such term is defined
in Regulation S under the Securities Act ("Regulation S")) with respect to the
Securities, and all such persons have complied and will comply with the offering
restrictions requirement of Regulation S to the extent applicable.
(cc) None of the Company, Holdings or any of their respective
affiliates has, directly or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any security (as
such term is defined in the Securities Act), which 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 or (ii) engaged, in connection with the
offering of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act or in any
manner involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(dd) Neither the Company nor Holdings has taken or will take, directly
or indirectly, any action prohibited by Regulation M under the Exchange Act in
connection with the offering of the Securities.
(ee) No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in the
Preliminary Offering Memorandum or the Offering Memorandum has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good
faith.
(ff) Since the date as of which information is given in the Offering
Memorandum, except as otherwise stated therein, there has been no material
adverse change or any development involving a prospective material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs, management or business prospects of either the Company or Holdings,
whether or not arising in the ordinary course of business.
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2. Purchase and Resale of the Securities. (a) On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, the Company agrees to issue and sell to
each of the Initial Purchasers, severally and not jointly, and each of the
Initial Purchasers, severally and not jointly, agrees to purchase from the
Company, the principal amount of Securities set forth opposite the name of such
Initial Purchaser on Schedule 1 hereto at a purchase price equal to 87.642% of
the principal amount thereof. The Company shall not be obligated to deliver any
of the Securities except upon payment for all of the Securities to be purchased
as provided herein.
(b) The Initial Purchasers have advised the Company that they propose
to offer the Securities for resale upon the terms and subject to the conditions
set forth herein and in the Offering Memorandum. Each Initial Purchaser,
severally and not jointly, represents, warrants and agrees that (i) it is a
Qualified Institutional Buyer (as defined below), (ii) it is purchasing the
Securities pursuant to a private sale exempt from registration under the
Securities Act, (iii) it has not solicited offers for, or offered or sold, and
will not 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 under the Securities Act ("Regulation D") or in any
manner involving a public offering within the meaning of Section 4(2) of the
Securities Act and (iv) it has solicited and will solicit offers for the
Securities only from, and has offered or sold and will offer, sell or deliver
the Securities, as part of their initial offering, only (A) within the United
States to persons whom it reasonably believes to be qualified institutional
buyers ("Qualified Institutional Buyers"), as defined in Rule 144A under the
Securities Act ("Rule 144A"), or if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to it that each such account is a
Qualified Institutional Buyer to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A and in each case, in
transactions in accordance with Rule 144A and (B) outside the United States to
persons other than U.S. persons in reliance on Regulation S under the Securities
Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on
Regulation S, each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) the Securities have not been registered under the Securities
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 pursuant to an exemption
from, or in transactions not subject to, the registration requirements of
the Securities Act.
(ii) such Initial Purchaser has offered and sold the Securities,
and will offer and sell the Securities, (A) as part of its distribution
at any time and (B) otherwise until 40 days after the later of the
commencement of the offering of the Securities and the Closing Date, only
in accordance with Regulation S or Rule 144A or any other available
exemption from registration under the Securities Act.
(iii) none of such Initial Purchaser or any of its affiliates or
any other person acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the Securities,
and all such persons have complied and will comply with the offering
restriction requirements of Regulation S.
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(iv) at or prior to the confirmation of sale of any Securities
sold in reliance on Regulation S, it will have sent to each distributor,
dealer or other 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, as amended (the "Securities Act"),
and may not be offered or 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 of the Securities
and the date of original issuance of the Securities, except in
accordance with Regulation S or Rule 144A or any other available
exemption from registration under the Securities Act. Terms used
above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual
arrangement with any distributor with respect to the distribution of the
Securities, except with its affiliates or with the prior written consent
of the Company.
Terms used in this Section 2(c) have the meanings given to them by
Regulation S.
(d) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that (i) it has not offered or sold and prior to the date
six months after the Closing Date will not offer or sell any Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 and the Public Offers
of Securities Regulations 1995 with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United Kingdom; and (iii)
it has only issued or passed on and will only issue or pass on in the United
Kingdom any document received by it in connection with the issue of the
Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom such document may otherwise lawfully be issued or passed
on.
(e) Each Initial Purchaser, severally and not jointly, agrees that,
prior to or simultaneously with the confirmation of sale by such Initial
Purchaser to any purchaser of any of the Securities purchased by such Initial
Purchaser from the Company pursuant hereto, such Initial Purchaser shall furnish
to that purchaser a copy of the Offering Memorandum (and any amendment or
supplement thereto that the Company shall have furnished to such Initial
Purchaser prior to the date of such confirmation of sale). In addition to the
foregoing, each Initial Purchaser acknowledges and agrees that the Company and,
for purposes of the opinions to be delivered to the Initial Purchasers pursuant
to Sections 5(d) and (e), counsel for the Company and for the Initial
Purchasers, respectively, may rely upon the accuracy of the representations and
warranties of the Initial Purchasers and their compliance with their agreements
contained in this Section 2, and each Initial Purchaser hereby consents to such
reliance.
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(f) The Company and Holdings acknowledge and agree that the Initial
Purchasers may sell Securities to any affiliate of an Initial Purchaser and that
any such affiliate may sell Securities purchased by it to an Initial Purchaser.
3. Delivery of and Payment for the Securities. (a) Delivery of and
payment for the Securities shall be made at the offices of Cravath, Swaine &
Xxxxx, New York, New York, or at such other place as shall be agreed upon by the
Initial Purchasers and the Company, at 10:00 A.M., New York City time, on August
23, 2001, or at such other time or date, not later than seven full business days
thereafter, as shall be agreed upon by the Initial Purchasers and the Company
(such date and time of payment and delivery being referred to herein as the
"Closing Date").
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by wire or book-entry transfer of
same-day funds to such account or accounts as the Company 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 Initial Purchasers of the
certificates evidencing the Securities. 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 Initial Purchasers hereunder. Upon delivery,
the Securities shall be in global form, registered in such names and in such
denominations as JPMorgan on behalf of the Initial Purchasers shall have
requested in writing not less than two full business days prior to the Closing
Date. The Company agrees to make global certificates evidencing the Securities
available for inspection by JPMorgan on behalf of the Initial Purchasers in New
York, New York at least 24 hours prior to the Closing Date.
4. Further Agreements of the Company and Holdings. Each of the Company
and Holdings agrees with each of the several Initial Purchasers:
(a) to advise the Initial Purchasers promptly and, if requested,
confirm such advice in writing, of the happening of any event which makes any
statement of a material fact made in the Offering Memorandum untrue or which
requires the making of any additions to or changes in the Offering 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; to advise the Initial Purchasers promptly of any order preventing or
suspending the use of the Preliminary Offering Memorandum or the Offering
Memorandum, of any suspension of the qualification of the Securities for
offering or sale in any jurisdiction and of the initiation or threatening of any
proceeding for any such purpose; and to use its reasonable best efforts to
prevent the issuance of any such order preventing or suspending the use of the
Preliminary Offering Memorandum or the Offering Memorandum or suspending any
such qualification and, if any such suspension is issued, to obtain the lifting
thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and counsel
for the Initial Purchasers, without charge, as many copies of the Offering
Memorandum (and any amendments or supplements thereto) as may be reasonably
requested;
(c) prior to making any amendment or supplement to the Offering
Memorandum, to furnish a copy thereof to each of the Initial Purchasers and
counsel for the Initial Purchasers and not to effect any such amendment or
supplement to which the
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Initial Purchasers shall reasonably object by notice to the Company after a
reasonable period to review;
(d) if, at any time prior to completion of the resale of the Securities
by the Initial Purchasers, any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for the Initial Purchasers
or counsel for the Company, to amend or supplement the Offering Memorandum in
order that the Offering Memorandum will not 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 existing at the time it is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Offering Memorandum to comply with applicable law, to promptly
prepare such amendment or supplement as may be necessary to correct such untrue
statement or omission or so that the Offering Memorandum, as so amended or
supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, to
furnish to holders of the Securities and prospective purchasers of the
Securities 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 the Company and Holdings are
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 Securities and prospective purchasers of the Securities designated by
such holders);
(f) to promptly take from time to time such actions as the Initial
Purchasers may reasonably request to qualify the Securities for offering and
sale under the securities or Blue Sky laws of such jurisdictions as the Initial
Purchasers may designate and to continue such qualifications in effect for so
long as required for the resale of the Securities; and to arrange for the
determination of the eligibility for investment of the Securities under the laws
of such jurisdictions as the Initial Purchasers may reasonably request; provided
that none of the Company, Holdings or any of their respective subsidiaries shall
be obligated to qualify as foreign corporations in any jurisdiction in which
they are not so qualified or to file a general consent to service of process in
any jurisdiction or to take any action which would subject it to taxation in any
jurisdiction where it is not then so subject;
(g) to assist the Initial Purchasers in arranging for the Securities to
be designated Private Offerings, Resales and Trading through Automated Linkages
("PORTAL") Market securities in accordance with the rules and regulations
adopted by the National Association of Securities Dealers, Inc. ("NASD")
relating to trading in the PORTAL Market and for the Securities to be eligible
for clearance and settlement through The Depository Trust Company ("DTC");
(h) not to, and to cause its affiliates not to, sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any security (as such
term is defined in the Securities Act) which could be integrated with the sale
of the Securities in a manner which would require registration of the Securities
under the Securities Act;
(i) 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
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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 Securities by
means of any form of general solicitation or general advertising within the
meaning of Regulation D or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act; and not to offer, sell, contract
to sell or otherwise dispose of, directly or indirectly, any securities under
circumstances where such offer, sale, contract or disposition would cause the
exemption afforded by Section 4(2) of the Securities Act to cease to be
applicable to the offering and sale of the Securities as contemplated by this
Agreement and the Offering Memorandum;
(j) for a period of 40 days from the date of the Offering Memorandum,
not to offer for sale, sell, contract to sell or otherwise dispose of, directly
or indirectly, or file a registration statement for, or announce any offer,
sale, contract for sale of or other disposition of any debt securities issued or
guaranteed by the Company, Holdings or any of their respective subsidiaries
(other than the Securities or the Exchange Securities) without the prior written
consent of the Initial Purchasers;
(k) in connection with the offering of the Securities, until JPMorgan
on behalf of the Initial Purchasers shall have notified the Company of the
completion of the resale of the Securities, not to, and to cause its affiliated
purchasers (as defined in Regulation M under the Exchange Act) not to, either
alone or with one or more other persons, bid for or purchase, for any account in
which it or any of its affiliated purchasers has a beneficial interest, any
Securities, or attempt to induce any person to purchase any Securities; and not
to, and to cause its affiliated purchasers not to, make bids or purchase for the
purpose of creating actual, or apparent, active trading in or of raising the
price of the Securities; and
(l) to apply the net proceeds from the sale of the Securities as set
forth in the Offering Memorandum under the heading "Use of Proceeds".
5. Conditions of Initial Purchasers' Obligations. The respective
obligations of the several Initial Purchasers hereunder are subject to the
accuracy, on and as of the date hereof and the Closing Date, of the
representations and warranties of each of the Company and Holdings contained
herein, to the accuracy of the statements of each of the Company and Holdings
and their respective officers made in any certificates delivered pursuant
hereto, to the performance by each of the Company and Holdings of their
respective obligations hereunder, and to each of the following additional terms
and conditions:
(a) The Offering Memorandum (and any amendments or supplements thereto)
shall have been printed and copies distributed to the Initial Purchasers as
promptly as practicable on or following the date of this Agreement or at such
other date and time as to which the Initial Purchasers may agree.
(b) None of the Initial Purchasers shall have discovered and disclosed
to the Company on or prior to the Closing Date that the Offering Memorandum or
any amendment or supplement thereto contains an untrue statement of a fact
which, in the opinion of counsel for the Initial Purchasers, is material or
omits to state any fact which, in the opinion of such counsel, is material and
is required to be stated therein or is necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
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(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of the Transaction Documents and the
Offering Memorandum, and all other legal matters relating to the Transaction
Documents and the transactions contemplated thereby, shall be satisfactory in
all material respects to the Initial Purchasers, and the Company and Holdings
shall have furnished to the Initial Purchasers all documents and information
that they or their counsel may reasonably request to enable them to pass upon
such matters.
(d) Xxxxxxxxxxx & Xxxxxxxx LLP shall have furnished to the Initial
Purchasers its written opinion, as counsel to the Company and Holdings,
addressed to the Initial Purchasers and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers, substantially to
the effect set forth in Annex B hereto.
(e) The Initial Purchasers shall have received from Cravath, Swaine &
Xxxxx, counsel for the Initial Purchasers, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Initial Purchasers may
reasonably require, and the Company and Holdings shall have furnished to such
counsel such documents and information as they request for the purpose of
enabling them to pass upon such matters.
(f) The Company and Holdings shall have furnished to the Initial
Purchasers a letter (the "Initial Letter") of PricewaterhouseCoopers LLP,
addressed to the Initial Purchasers and dated the date hereof, in form and
substance satisfactory to the Initial Purchasers, substantially to the effect
set forth in Annex C hereto.
(g) The Company and Holdings shall have furnished to the Initial
Purchasers a letter (the "Bring-Down Letter") of PricewaterhouseCoopers LLP,
addressed to the Initial Purchasers and dated the Closing Date (i) confirming
that they are independent public accountants with respect to the Company,
Holdings and their respective subsidiaries within the meaning of Rule 101 of the
Code of Professional Conduct of the AICPA and its interpretations and rulings
thereunder, (ii) stating, as of the date of the Bring-Down Letter (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Offering Memorandum,
as of a date not more than three business days prior to the date of the
Bring-Down Letter), that the conclusions and findings of such accountants with
respect to the financial information and other matters covered by the Initial
Letter are accurate and (iii) confirming in all material respects the
conclusions and findings set forth in the Initial Letter.
(h) Each of the Company and Holdings shall have furnished to the
Initial Purchasers a certificate, dated the Closing Date, of its chief executive
officer and its chief financial officer stating that (A) such officers have
carefully examined the Offering Memorandum, (B) in their opinion, the Offering
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, and since the date of
the Offering Memorandum, no event has occurred which should have been set forth
in a supplement or amendment to the Offering Memorandum so that the Offering
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
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under which they were made, not misleading, (C) as of the Closing Date, the
representations and warranties of each of the Company and Holdings in this
Agreement are true and correct in all material respects, each of the Company and
Holdings has complied in all material respects with all agreements and satisfied
in all material respects all conditions on its part to be performed or satisfied
hereunder on or prior to the Closing Date, and (D) subsequent to the date of the
most recent financial statements contained in the Offering Memorandum, there has
been no material adverse change in the financial position or results of
operation of the Company, Holdings or any of their respective subsidiaries, or
any change, or any development including a prospective change, in or affecting
the condition (financial or otherwise), results of operations, business or
prospects of the Company, Holdings and their respective subsidiaries taken as a
whole.
(i) The Initial Purchasers shall have received a counterpart of the
Registration Rights Agreement which shall have been executed and delivered by a
duly authorized officer of each of the Company and Holdings.
(j) The Indenture shall have been duly executed and delivered by the
Company, Holdings and the Trustee, and the Securities shall have been duly
executed and delivered by the Company and duly authenticated by the Trustee.
(k) The Securities shall have been approved by the NASD for trading in
the PORTAL Market.
(l) If any event shall have occurred that requires the Company under
Section 4(d) to prepare an amendment or supplement to the Offering Memorandum,
such amendment or supplement shall have been prepared, the Initial Purchasers
shall have been given a reasonable opportunity to comment thereon, and copies
thereof shall have been delivered to the Initial Purchasers reasonably in
advance of the Closing Date.
(m) There shall not have occurred any invalidation of Rule 144A under
the Securities Act by any court or any withdrawal or proposed withdrawal of any
rule or regulation under the Securities Act or the Exchange Act by the
Commission or any amendment or proposed amendment thereof by the Commission
which in the judgment of the Initial Purchasers would materially impair the
ability of the Initial Purchasers to purchase, hold or effect resales of the
Securities as contemplated hereby.
(n) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Offering Memorandum
(exclusive of any amendment or supplement thereto), there shall not have been
any change in the capital stock or long-term debt or any change, or any
development involving a prospective change, in or affecting the condition
(financial or otherwise), results of operations, business or prospects of the
Company, Holdings and their respective subsidiaries taken as a whole, the effect
of which, in any such case described above, is, in the judgment of the Initial
Purchasers, so material and adverse as to make it impracticable or inadvisable
to proceed with the sale or delivery of the Securities on the terms and in the
manner contemplated by this Agreement and the Offering Memorandum (exclusive of
any amendment or supplement thereto).
(o) 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
Securities; and no
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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 Securities.
(p) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Securities or any of
the Company's or Holdings' other debt securities or preferred stock by any
"nationally recognized statistical rating organization", as such term is defined
by the Commission for purposes of Rule 436(g)(2) of the rules and regulations of
the Commission under the Securities Act and (ii) no such organization shall have
publicly announced that it has under surveillance or review (other than an
announcement with positive implications of a possible upgrading), its rating of
the Securities or any of the Company's or Holdings' other debt securities or
preferred stock.
(q) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or limited, or minimum prices
shall have been established on any such exchange or market by the Commission, by
any such exchange or by any other regulatory body or governmental authority
having jurisdiction, or trading in any securities of the Company or Holdings on
any exchange or in the over-the-counter market shall have been suspended or (ii)
any moratorium on commercial banking activities shall have been declared by
federal or New York state authorities or (iii) an outbreak or escalation of
hostilities or a declaration by the United States of a national emergency or war
or (iv) a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial markets
in the United States shall be such) the effect of which, in the case of this
clause (iv), is, in the judgment of the Initial Purchasers, so material and
adverse as to make it impracticable or inadvisable to proceed with the sale or
the delivery of the Securities on the terms and in the manner contemplated by
this Agreement and in the Offering Memorandum (exclusive of any amendment or
supplement thereto).
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
6. Termination. The obligations of the Initial Purchasers hereunder may
be terminated by the Initial Purchasers, in their absolute discretion, by notice
given to and received by the Company prior to delivery of and payment for the
Securities if, prior to that time, any of the events described in Section 5(m),
(n), (o), (p) or (q) shall have occurred and be continuing.
7. Defaulting Initial Purchasers. (a) If, on the Closing Date, any
Initial Purchaser defaults in the performance of its obligations under this
Agreement, the non-defaulting Initial Purchasers may make arrangements for the
purchase of the Securities which such defaulting Initial Purchaser agreed but
failed to purchase by other persons satisfactory to the Company and the
non-defaulting Initial Purchasers, but if no such arrangements are made within
36 hours after such default, this Agreement shall terminate without liability on
the part of the non-defaulting Initial Purchasers or the Company or Holdings,
except that the Company and Holdings will continue to be liable
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for the payment of expenses to the extent set forth in Section 12 and except
that the provisions of Sections 9 and 10 shall not terminate and shall remain in
effect. As used in this Agreement, the term "Initial Purchasers" includes, for
all purposes of this Agreement unless the context otherwise requires, any party
not listed in Schedule 1 hereto that, pursuant to this Section 7, purchases
Securities which a defaulting Initial Purchaser agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company, Holdings, or any
non-defaulting Initial Purchaser for damages caused by its default. If other
persons are obligated or agree to purchase the Securities of a defaulting
Initial Purchaser, either the non-defaulting Initial Purchasers or the Company
may postpone the Closing Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Initial Purchasers may be necessary in the Offering Memorandum or in any
other document or arrangement, and the Company and Holdings agree to promptly
prepare any amendment or supplement to the Offering Memorandum that effects any
such changes.
8. Reimbursement of Initial Purchasers' Expenses. If this Agreement
shall have been terminated pursuant to Section 7 or as a result of the
occurrence of any event described in Sections 5(m) or 5(q), the Company and
Holdings shall not be under any liability to pay the expenses of the Initial
Purchasers, except as provided in Sections 9, 10 and 12.
9. Indemnification. (a) Each of the Company and Holdings shall jointly
and severally indemnify and hold harmless each Initial Purchaser, its
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls any Initial Purchaser within the
meaning of the Securities Act or the Exchange Act (collectively referred to for
purposes of this Section 9(a) and Section 10 as an Initial Purchaser), from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage,
liability or action relating to purchases and sales of the Securities), to which
that Initial Purchaser may become subject, whether commenced or threatened,
under the Securities Act, the Exchange Act, any other federal or state statutory
law or regulation, at common law or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum or in any amendment
or supplement thereto or in any information provided by the Company or Holdings
pursuant to Section 4(e) or (ii) the omission or alleged omission to state
therein 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, and shall reimburse each Initial Purchaser promptly
upon demand for any legal or other expenses reasonably incurred by that Initial
Purchaser in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that neither the Company nor Holdings shall be liable in any such case
to the extent that any such loss, claim, damage, liability or action arises out
of, or is based upon, an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with any Initial Purchasers' Information; and provided, further, that
with respect to any such untrue statement in or omission from the Preliminary
Offering Memorandum, the indemnity agreement contained in this Section 9(a)
shall not inure to
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the benefit of any such Initial Purchaser to the extent that the sale to the
person asserting any such loss, claim, damage, liability or action was an
initial resale by such Initial Purchaser and any such loss, claim, damage,
liability or action of or with respect to such Initial Purchaser results from
the fact that both (A) to the extent required by applicable law, a copy of the
Offering Memorandum was not sent or given to such person at or prior to the
written confirmation of the sale of such Securities to such person and (B) the
untrue statement in or omission from the Preliminary Offering Memorandum was
corrected in the Offering Memorandum unless, in either case, such failure to
deliver the Offering Memorandum was a result of non-compliance by either the
Company or Holdings with Section 4(b).
(b) Each Initial Purchaser, severally and not jointly, shall indemnify
and hold harmless each of the Company, Holdings, their respective affiliates,
their respective officers, directors, employees, representatives and agents, and
each person, if any, who controls either the Company or Holdings within the
meaning of the Securities Act or the Exchange Act (collectively referred to for
purposes of this Section 9(b) and Section 10 as the Company), from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in
the Preliminary Offering Memorandum or the Offering Memorandum or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein 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, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with any Initial Purchasers'
Information, and shall reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party pursuant to Section 9(a) or 9(b), notify the indemnifying party in writing
of the claim or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 9 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 9. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than
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reasonable costs of investigation; provided, however, that an indemnified party
shall have the right to employ its own separate counsel in any such action, but
the fees, expenses and other charges of such counsel for the indemnified party
will be at the expense of such indemnified party unless (1) the employment of
counsel by the indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably concluded (based
upon advice of counsel to the indemnified party) that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based upon advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in which case
the indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party has not
in fact employed counsel reasonably satisfactory to the indemnified party to
assume the defense of such action within a reasonable time after receiving
notice of the commencement of the action, in each of which cases the reasonable
fees, disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 9(a) and 9(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
The obligations of the Company, Holdings and the Initial Purchasers in
this Section 9 and in Section 10 are in addition to any other liability that the
Company, Holdings or the Initial Purchasers, as the case may be, may otherwise
have, including in respect of any breaches of representations, warranties and
agreements made herein by any such party.
10. Contribution. If the indemnification provided for in Section 9 is
unavailable or insufficient to hold harmless an indemnified party under Section
9(a) or 9(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company and Holdings on the one hand and the Initial
Purchasers on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
Holdings on the one hand and the Initial Purchasers on the other with respect to
the statements or omissions that
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resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company and Holdings on the one hand and the Initial Purchasers
on the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Securities
purchased under this Agreement (before deducting expenses) received by or on
behalf of the Company and Holdings, on the one hand, and the total discounts and
commissions received by the Initial Purchasers with respect to the Securities
purchased under this Agreement, on the other, bear to the total gross proceeds
from the sale of the Securities under this Agreement, in each case as set forth
in the table on the cover page of the Offering Memorandum. 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 the Company or Holdings or information
supplied by the Company or Holdings on the one hand or to any Initial
Purchasers' Information on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company, Holdings and the Initial
Purchasers agree that it would not be just and equitable if contributions
pursuant to this Section 10 were to be determined by pro rata allocation (even
if the Initial Purchasers were treated as one entity for such purpose) or by any
other method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 10 shall be deemed to include, for
purposes of this Section 10, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending or
preparing to defend any such action or claim. Notwithstanding the provisions of
this Section 10, no Initial Purchaser shall be required to contribute any amount
in excess of the amount by which the total discounts and commissions received by
such Initial Purchaser with respect to the Securities purchased by it under this
Agreement exceeds the amount of any damages which such Initial Purchaser has
otherwise paid or become liable to pay by reason of any 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 such
fraudulent misrepresentation. The Initial Purchasers' obligations to contribute
as provided in this Section 10 are several in proportion to their respective
purchase obligations and not joint.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the Company,
Holdings and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except (i) as
provided in Sections 9 and 10 with respect to affiliates, officers, directors,
employees, representatives, agents and controlling persons of the Company,
Holdings and the Initial Purchasers and in Section 4(e) with respect to holders
and prospective purchasers of the Securities and (ii) that any and all
obligations of, and services to be provided by, JPMorgan hereunder may be
performed, and any and all rights of JPMorgan hereunder may be exercised, by or
through its affiliates. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
11, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
12. Expenses. The Company and Holdings jointly and severally agree with
the Initial Purchasers to pay (a) the costs incident to the authorization,
issuance, sale, preparation and delivery of the Securities and any taxes payable
in that connection; (b)
21
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the costs incident to the preparation, printing and distribution of the
Preliminary Offering Memorandum, the Offering Memorandum and any amendments or
supplements thereto; (c) the costs of reproducing and distributing each of the
Transaction Documents; (d) the costs incident to the preparation, printing and
delivery of the certificates evidencing the Securities, including stamp duties
and transfer taxes, stock exchange taxes, value added taxes, withholding taxes
or similar duties or taxes, if any, payable upon authorization, issuance, sale
or delivery of the Securities; (e) the fees and expenses of the Company's and
Holdings' counsel and independent accountants; (f) the fees and expenses of
qualifying the Securities under the securities laws of the several jurisdictions
as provided in Section 4(g) and of preparing, printing and distributing Blue Sky
Memoranda (including related fees and expenses of counsel for the Initial
Purchasers); (g) any fees charged by rating agencies for rating the Securities;
(h) the fees and expenses of the Trustee and any paying agent (including related
fees and expenses of any counsel to such parties); (i) all expenses and
application fees incurred in connection with the application for the inclusion
of the Securities on the PORTAL Market and the approval of the Securities for
book-entry transfer through DTC, Euroclear and Clearstream and any listing of
the Securities on any securities exchange; and (j) all other costs and expenses
incident to the performance of the obligations of the Company and Holdings under
this Agreement which are not otherwise specifically provided for in this Section
12; provided, however, that except as provided in this Section 12 and Section 8,
the Initial Purchasers shall pay their own costs and expenses.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, Holdings and the
Initial Purchasers contained in this Agreement or made by or on behalf of the
Company, Holdings or the Initial Purchasers pursuant to this Agreement or any
certificate delivered pursuant hereto shall survive the delivery of and payment
for the Securities and shall remain in full force and effect, regardless of any
termination or cancelation of this Agreement or 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.
14. Notices, etc.. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by mail or
telecopy transmission to X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xx. Xxxxxxx X. Xxxx (telecopier no.: (000) 000-0000);
or
(b) if to the Company and Holdings, shall be delivered or sent by mail
or telecopy transmission to the address of the Company and Holdings set forth in
the Offering Memorandum, Attention: Mr. Xxxxx Van Oss (telecopier no.: (412)
454-2477 );
provided that any notice to an Initial Purchaser pursuant to Section 9(c) shall
also be delivered or sent by mail to such Initial Purchaser at its address set
forth on the signature page hereof. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and
Holdings shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Initial Purchasers by JPMorgan.
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15. 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.
16. Initial Purchasers' Information. The parties hereto acknowledge and
agree that, for all purposes of this Agreement, the Initial Purchasers'
Information consists solely of the following information in the Preliminary
Offering Memorandum and the Offering Memorandum: (i) the last paragraph on the
front cover page concerning the terms of the offering by the Initial Purchasers;
and (ii) the statements concerning the Initial Purchasers contained in the
third, eleventh and twelfth paragraphs under the heading "Plan of Distribution".
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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. Amendments. 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.
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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 among the Company, Holdings and the
several Initial Purchasers in accordance with its terms.
Very truly yours,
WESCO DISTRIBUTION, INC.,
By /s/ XXXXXXX X. VAN OSS
--------------------------------
Name: Xxxxxxx X. Van Oss
Title: Vice President and
Chief Financial Officer
WESCO INTERNATIONAL, INC.,
By /s/ XXXXXXX X. VAN OSS
--------------------------------
Name: Xxxxxxx X. Van Oss
Title: Vice President and
Chief Financial Officer
Accepted:
X.X. XXXXXX SECURITIES INC.
XXXXXX BROTHERS INC.
PNC CAPITAL MARKETS, INC.
TD SECURITIES (USA) INC.
BNY CAPITAL MARKETS, INC.
ABN AMRO INCORPORATED
COMERICA SECURITIES
FLEET SECURITIES, INC.
SCOTIA CAPITAL (USA) INC.
By X.X. XXXXXX SECURITIES INC.,
By /s/ XXXXXXXXXXX X. XXXXX
---------------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
0 Xxxxx Xxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
24
SCHEDULE 1
Principal Amount of
Initial Purchasers Securities
------------------ ----------
X.X. Xxxxxx Securities Inc. $45,000,000
Xxxxxx Brothers Inc. $34,000,000
PNC Capital Markets, Inc. $5,000,000
TD Securities (USA) Inc. $4,000,000
BNY Capital Markets, Inc. $4,000,000
ABN AMRO Incorporated $2,000,000
Comerica Securities $2,000,000
Fleet Securities, Inc. $2,000,000
Scotia Capital (USA) Inc. $2,000,000
Total $100,000,000
25
ANNEX A
[Form of Registration Rights Agreement]
26
ANNEX B
[Form of Opinion of Xxxxxxxxxxx & Xxxxxxxx LLP]
Xxxxxxxxxxx & Xxxxxxxx LLP shall have furnished to the Initial
Purchasers their written opinion, as counsel to the Company and Holdings,
addressed to the Initial Purchasers and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers, substantially to
the effect set forth below:
1. Each of the Company and Holdings has been duly incorporated
and is validly existing and in good standing as a corporation under the laws of
the State of Delaware and has all requisite corporate power and authority to
conduct its business as described in the Offering Memorandum and is duly
qualified to do business as a foreign corporation in each jurisdiction in which
it owns or leases real property or in which the conduct of its business requires
such qualification, except where the failure to be so qualified, individually or
in the aggregate, would not have a Material Adverse Effect.
2. As of the Closing Date all of the outstanding shares of
capital stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable.
3. The execution, delivery and performance by the Company and
Holdings of each of the Transaction Documents to which each is a party, the
issuance, sale and delivery of the Securities by the Company to the Initial
Purchasers and the compliance by the Company and Holdings with the terms thereof
and the consummation of the transactions contemplated by the Transaction
Documents (A) will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company, Holdings or any "significant subsidiary" (within the meaning of Rule
1-02 of Regulation S-X) of the Company or Holdings pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company, Holdings or any of their respective subsidiaries is a party
or to which any of them or their respective properties or assets is subject and
listed as an exhibit to the most recent Form 10-K of Holdings or any subsequent
SEC filings as of the date hereof, (B) nor will such action violate the
Certificate of Incorporation or By-laws of the Company, Holdings or any
"significant subsidiary" (within the meaning of Rule 1-02 of Regulation S-X) of
the Company or Holdings or (C) nor will such action violate any material
statute, rule, regulation (assuming compliance with the Securities Act and
applicable state securities laws and provided that we express no opinion with
respect to the provisions of Sections 9 and 10 of the Purchase Agreement),
judgment, decree or order of any court or arbitrator or governmental agency or
body known to such counsel to have jurisdiction over the Company, Holdings or
any of their respective subsidiaries or their respective properties or assets;
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 the Company and Holdings of each of the
Transaction Documents to which each is a party, the issuance, sale and delivery
of the Securities by the Company to the Initial Purchasers and the compliance by
the Company and Holdings with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for such
consents, approvals, authorizations, filings, registrations or qualifications
(i) which have been obtained or made prior to the Closing Date and (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.
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4. To such counsel's knowledge, without investigation except
where we have been engaged by Holdings or the Company to give substantive
attention to such action, suit or proceeding, there is (i) no action, suit or
proceeding before or by any court, arbitrator or governmental agency, body or
official, domestic or foreign, now pending or threatened to which the Company,
Holdings or any of their respective subsidiaries is or may be a party or to
which the business or property of the Company, Holdings or any of their
respective subsidiaries is or may be subject and (ii) no injunction, restraining
order or order of any nature by a federal or state court of competent
jurisdiction to which the Company, Holdings or any of their respective
subsidiaries is or may be subject, issued and outstanding that, in the case of
clauses (i) and (ii) above would reasonably be expected to (x) have a Material
Adverse Effect or (y) would in any manner invalidate any material provisions of
the Purchase Agreement, the Indenture or the Registration Rights Agreement or
any of the Securities.
5. The Indenture has been duly authorized, executed and delivered
by the Company and Holdings and, assuming that the Indenture is the valid and
legally binding obligation of the Trustee, constitutes a valid and legally
binding obligation of the Company and Holdings, enforceable against the Company
and Holdings in accordance with its terms, except to the extent that such
enforceability 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).
6. The Securities have been duly authorized, executed and issued
by the Company and, assuming due authentication thereof by the Trustee, and upon
payment and delivery in accordance with the Purchase Agreement, will constitute
valid and legally binding obligations of the Company, as issuer, and Holdings,
as guarantor, enforceable against the Company, as issuer, and Holdings, as
guarantor, in accordance with their terms and entitled to the benefits of the
Indenture, except to the extent that such enforceability 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).
7. The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and Holdings, and assuming that the
Registration Rights Agreement constitutes the valid and legally binding
obligation of the Initial Purchasers, constitutes a valid and legally binding
obligation of each of the Company and Holdings, enforceable against the Company
and Holdings in accordance with its terms, except to the extent that such
enforceability 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 as the enforceability
thereof may be limited by considerations of public policy.
8. The Purchase Agreement has been duly authorized, executed and
delivered by the Company and Holdings.
9. The statements made in the Offering Memorandum under the
captions "Exchange and Registration Rights Agreement" and "Description of the
Notes", insofar as
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they purport to constitute summaries of certain terms of documents referred to
therein, constitute accurate summaries of the terms of such documents in all
material respects.
10. The statements set forth in the Offering Memorandum under the
caption "Certain U.S. Federal Income Tax Considerations", insofar as they
purport to constitute summaries of matters of United States tax law and
regulations or legal conclusions with respect thereto, constitute accurate
summaries of the maters described therein in all material respects.
11. No consent, approval, authorization, order, registration or
qualification of or with any Federal or New York governmental agency or body or
any Delaware governmental agency or body acting pursuant to the Delaware General
Corporation Law or, to such counsel's knowledge, any Federal or New York court
or any Delaware court acting pursuant to the Delaware General Corporation Law is
required for the issue and sale of the Securities by the Company and Holdings
and the compliance by the Company and Holdings with all of the provisions of the
Purchase Agreement, except for such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Securities
by the Initial Purchasers (except, other than as set forth in paragraph 13
below, we give no opinion as to registration of the Securities under the
Securities Act and the qualification of the Indenture under the Trust Indenture
Act).
12. The issue and sale of the Securities by the Company and the
compliance by the Company and Holdings with all the provisions of the Purchase
Agreement will not violate any Federal or New York statute or the Delaware
General Corporation Law.
13. No registration of the Securities under the Securities Act,
and no qualification of the Indenture under the Trust Indenture Act is required
for the offer and sale of the Securities by the Company to the Initial
Purchasers or the reoffer and resale of the Securities by the Initial Purchasers
to the initial purchasers therefrom solely in the manner contemplated by the
Offering Memorandum, the Purchase Agreement and the Indenture.
14. Neither the sale, issuance, execution or delivery of the
Securities will violate Regulation T (assuming that you do not sell the
Securities to any person or entity subject to Regulation T for such person's or
entity's own account), U or X of the Board of Governors of the Federal Reserve
System.
15. Following the issuance of the Securities and the application
of the proceeds therefrom, neither the Company nor Holdings will be an
"investment company" within the meaning of and subject to regulation under the
Investment Company Act.
We are not opining as to factual matters, and the character of
determinations involved in the registration process is such that we are not
passing upon and do not assume any responsibility for the accuracy, completeness
or fairness of the information included in the Offering Memorandum. We assume
the correctness and completeness of the information included in the Offering
Memorandum, and we have made no independent investigation or verification of
that information. We can advise you, however, that on the basis of our review of
the Offering Memorandum and our participation in its preparation, nothing has
come to our attention that causes us to believe
29
4
that the Offering Memorandum (except for financial statements and schedules and
other financial and statistical data included or incorporated by reference
therein or omitted therefrom, as to which we make no statement) as of the date
thereof, included or includes an untrue statement of a material fact or omitted
or omits 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. Also, nothing has come to our attention that causes us to believe,
based upon the procedures described in this opinion letter (which constitute the
only additional procedures performed between the date of the Offering Memorandum
and the date hereof) that the Offering Memorandum (except for financial
statements and schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom, as to which we make no
statement), as of the date and time of delivery of this opinion letter, contains
an untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and Holdings and public officials which are furnished to
the Initial Purchasers.
30
ANNEX C
[Form of Initial Comfort Letter]
