AEROFLEX INCORPORATED
Execution
Version
AEROFLEX
INCORPORATED
11.75%
Senior Notes due 2015
Purchase
Agreement (the
“Agreement”)
August
4,
2008
Xxxxxxx,
Xxxxx & Co.
00
Xxxxx
Xxxxxx,
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Aeroflex
Incorporated, a
Delaware corporation (the “Company”),
proposes, subject to the terms and conditions stated herein, to issue and sell
to Xxxxxxx, Sachs & Co. (the “Purchaser”)
an
aggregate of $225.0 million principal amount of 11.75% Senior Notes due 2015,
as
specified above (the “Securities”).
The
Securities are to be issued pursuant to an indenture (the “Indenture”)
among
the Company, the Guarantors (as defined below) and The Bank of New York, as
trustee (the “Trustee”).
The
Securities will be unconditionally guaranteed as to the payment of principal,
premium and interest (including special interest, if any), (the “Guarantees”),
by
the parties listed in Schedule III hereto (each
a
“Guarantor,”
and
collectively, the “Guarantors”).
As
described in the Offering Circular, proceeds from the issuance and sale of
the
Securities will be used to refinance the Company’s $225.0 million exchangeable
senior unsecured credit facility.
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1.
|
The
Company and the Guarantors, as of the date hereof and as of the Time
of
Delivery (as defined herein), jointly and severally, represent and
warrant
to, and agree with the Purchaser
that:
|
| (a) |
A
preliminary offering circular, dated July 29, 2008 (the “Preliminary
Offering Circular”)
and an offering
circular, dated August 4, 2008 (the “Offering
Circular”),
have been prepared in connection with the offering of the Securities.
The
Preliminary Offering Circular, as amended and supplemented immediately
prior to the Applicable Time (as defined in Section 1(b)), is hereinafter
referred to as the “Pricing
Circular.”
Any reference to the Preliminary Offering Circular, the Pricing Circular
or the Offering Circular shall be deemed to refer to and include
any
Additional Issuer Information (as defined in Section 5(f)) furnished
by
the Company prior to the completion of the distribution of the Securities.
The Preliminary Offering Circular or the Offering
Circular and any amendments or supplements thereto did not and will
not,
as of their respective dates, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the
statements therein, in the light of the circumstances under which
they
were made, not misleading; provided,
however,
that this representation and warranty shall not apply to any statements
or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Purchaser expressly for
use
therein;
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| (b) |
For
the purposes of this Agreement, the “Applicable
Time”
is 3:00 p.m. (Eastern time) on the date of this Agreement; the Pricing
Circular as supplemented by the information set forth in Schedule
II
hereto, taken together (collectively, the “Pricing
Disclosure Package”)
as of the Applicable Time, did not include any untrue statement of
a
material fact or omit to state any material fact necessary in order
to
make the statements therein, in the light of the circumstances under
which
they were made, not misleading; and each Company Supplemental Disclosure
Document (as defined in Section 6(a)(i)) listed on Schedule I(b)
hereto does
not conflict with the information contained in the Pricing Circular
or the
Offering Circular and each such Company Supplemental Disclosure Document,
as supplemented by and taken together with the Pricing Disclosure
Package
as of the Applicable Time, did not include any untrue statement of
a
material fact or omit to state any material fact necessary in order
to
make the statements therein, in the light of the circumstances under
which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions
made in a Company Supplemental Disclosure Document in reliance upon
and in
conformity with information furnished in writing to the Company by
the
Purchaser expressly for use
therein;
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| (c) |
Neither
the Company nor any of its subsidiaries has sustained since the date
of
the latest audited financial statements included in the Pricing Circular
any material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or
from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Pricing Circular; and, since
the
respective dates as of which information is given in the Pricing
Circular,
there has not been any change in the capital stock or other equity
interests or long-term debt of the Company or any of its subsidiaries
or
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations
of the
Company or its subsidiaries, other than as set forth or contemplated
in
the Pricing Circular;
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| (d) |
The
Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement, the Indenture,
the Registration Rights Agreement and the Securities, as
applicable;
|
| (e) |
Each
Guarantor has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement, the Indenture,
the Registration Rights Agreement and the
Guarantees;
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| (f) |
At
the Time of Delivery, each of the Company’s subsidiaries that is formed
under the laws of the United States or any state of the United States
or
the District of Columbia other than Test Evolution Corporation is
named as
a Guarantor under this Agreement and is a guarantor of the
Securities;
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| (g) |
Other
than as disclosed in the Offering Circular, the Company does not
own
capital stock or other equity interests of any corporation or entity
other
than the Guarantors, which would be required by the Indenture to
be a
Guarantor thereunder;
|
| (h) |
The
Company and its subsidiaries have good and marketable title in fee
simple
to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Pricing
Circular or such as do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of
such
property by the Company and its subsidiaries; and any real property
and
buildings held under lease by the Company and its subsidiaries are
held by
them under valid, subsisting and enforceable leases with such exceptions
as would not individually or in the aggregate have a material adverse
effect on the business, prospects, condition (financial or otherwise),
earnings or results of operations of the Company and its subsidiaries,
taken as a whole (a “Material
Adverse Effect”),
and do not materially interfere with the use made and proposed to
be made
of such property and buildings by the Company and its
subsidiaries;
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| (i) |
Each
of the Company and each of the Guarantors has been duly incorporated
and
is validly existing as a corporation in good standing under the laws
of
its jurisdiction of incorporation, with power and authority to own
or
lease its properties and conduct its business as described in the
Pricing
Circular, and has been duly qualified as a foreign corporation for
the
transaction of business and is in good standing under the laws of
each
other jurisdiction in which it owns or leases properties or conducts
any
business so as to require such qualification, or is subject to no
material
liability or disability by reason of the failure to be so qualified
in any
such jurisdiction, except where the failure to be so qualified or
in good
standing in any such jurisdiction would not individually or in the
aggregate, result in a Material Adverse Effect; and each subsidiary
of the
Company that is not a Guarantor has been duly incorporated and is
validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, except where the failure to be in
good
standing in any such jurisdiction would not individually or in the
aggregate, result in a Material Adverse
Effect;
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| (j) |
The
Company has a capitalization as set forth in the Pricing Circular,
and all
of the issued shares of capital stock of the Company have been duly
and
validly authorized and issued and are fully paid and non-assessable;
and
all of the issued shares of capital stock or other equity interests
of
each subsidiary of the Company have been duly and validly authorized
and
issued, are fully paid and non-assessable (and except for directors’
qualifying shares) and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims, except
as
disclosed in the Pricing Circular;
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| (k) |
The
Securities have been duly authorized by the Company and, when issued
and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally
binding obligations of the Company entitled to the benefits provided
by
the Indenture under which they are to be issued; the Indenture has
been
duly authorized and, when executed and delivered by the Company,
the
Guarantors and the Trustee, the Indenture will constitute a valid
and
legally binding instrument, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or
affecting creditors' rights and except as enforcement thereof is
subject
to general principles of equity (regardless of whether enforcement
is
considered in a proceeding in equity or at law); and the Securities
and
the Indenture will conform to the descriptions thereof in the Pricing
Disclosure Package and the Offering
Circular in all material respects and will be in substantially the
form
previously delivered to you;
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| (l) |
This
Agreement has been duly authorized, executed and delivered by the
Company
and the Guarantors; and, assuming due authorization, execution and
delivery by the Purchaser, constitutes the valid and binding agreement
of
each of the Company and the Guarantors, enforceable against each
of them
in accordance with its terms, except as enforcement thereof may be
limited
by bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and except
as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or
at law);
provided
that no representation is made with respect to Section 6 of the
Registration Rights Agreement relating to indemnification and
contribution;
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| (m) |
The
Guarantees have been duly authorized by each of the Guarantors and,
when
issued and delivered by the Guarantors, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally
binding obligations of each of the Guarantors, entitled to the benefits
provided by the Indenture under which they are to be issued, which
will be
substantially in the form previously delivered to you as an exhibit
to the
form of the Indenture, and enforceable against them in accordance
with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and except as enforcement
thereof is subject to general principles of equity (regardless of
whether
enforcement is considered in a proceeding in equity or at law);
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| (n) |
The
exchange and registration rights agreement to be dated as of the
Time of
Delivery, among the Company, the Guarantors and the Purchaser (the
“Registration
Rights Agreement”)
has been duly authorized by the Company and each of the Guarantors,
and,
as of the Time of Delivery, will have been duly executed and delivered
by
the Company and each of the Guarantors, and (assuming due authorization,
execution and delivery by the other parties thereto) will constitute
a
valid and legally binding obligation of the Company and each of the
Guarantors, enforceable against them in accordance with its terms,
except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or
affecting creditors’ rights and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement
is
considered in a proceeding in equity or at law); provided
that no representation is made with respect to Section 6 of the
Registration Rights Agreement relating to indemnification and
contribution;
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| (o) |
The
Exchange Securities (as defined herein) have been duly authorized
for
issuance by the Company, and when executed, authenticated, issued
and
delivered pursuant to this Agreement, the Indenture and the Registration
Rights Agreement, will constitute valid and legally binding obligations
of
the Company, entitled to the benefits provided by the Indenture and
enforceable in accordance with their terms, except as enforcement
thereof
may be limited by bankruptcy, insolvency, reorganization and other
laws of
general applicability relating to or affecting creditors’ rights and
except as enforcement thereof is subject to general principles of
equity
(regardless of whether enforcement is considered in a proceeding
in equity
or at law);
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| (p) |
The
guarantees of the Company’s obligations under the Exchange Securities (the
“Exchange
Guarantees”)
to be offered in exchange for the Guarantees in the Exchange Offer
have
been duly authorized by each of the Guarantors, and, when duly executed,
issued and delivered, will constitute valid and legally binding
obligations of such Guarantors, entitled to the benefits provided
by the
Indenture under which they are to be issued, which will be substantially
in the form previously delivered to you as an exhibit to the form
of
Indenture, and enforceable in accordance with their terms, except
as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or
affecting creditors’ rights and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement
is
considered in a proceeding in equity or at
law);
|
| (q) |
None
of the transactions contemplated by this Agreement (including, without
limitation, the use of the proceeds from the sale of the Securities)
will
violate or result in a violation of Section 7 of the United States
Securities Exchange Act of 1934, as amended (the “Exchange
Act”)
or any regulation promulgated thereunder, including, without limitation,
Regulations G, T, U and X of the Board of Governors of the Federal
Reserve
System;
|
| (r) |
Prior
to the date hereof, none of the Company, the Guarantors nor any affiliate
thereof has taken any action which is designed to or which has constituted
or which might have been expected to cause or result in stabilization
or
manipulation of the price of any security of the Company or any Guarantor
in connection with the offering of the Securities and the
Guarantees;
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| (s) |
The
issue and sale of the Securities and the Guarantees, compliance by
each of
the Company and the Guarantors with all of the provisions of the
Securities, the Guarantees, the Indenture, the Registration Rights
Agreement and this Agreement (collectively, the “Operative
Documents”),
and the consummation of the transactions herein and therein contemplated
will not (i) conflict with or result in a breach or violation of
any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which Company or any of its subsidiaries is a party or by which
the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject
(except such as will not individually or in the aggregate have a
Material
Adverse Effect), (ii) nor will such action result in any violation
of the
provisions of the charter, by-laws, operating agreement or other
organizational documents of the Company or any of its subsidiaries
or
(iii) result in any violation of the provisions of any law or statute
or
any order, rule or regulation, judgment or decree of any court or
governmental agency or body having jurisdiction over the Company
or any of
its subsidiaries or any of their respective properties or assets;
and no
consent, approval, authorization, order, registration or qualification
of
or with any such court or governmental agency or body is required
for the
issue and sale of the Securities and the Guarantees or the consummation
by
the Company or the Guarantors of the transactions contemplated by
the
Operative Documents, except for (A) the filing of a registration
statement
by the Company with the Securities and Exchange Commission (the
“Commission”)
pursuant to the United States Securities Act of 1933, as amended
(the“Act”)
pursuant to the Registration Rights Agreement, (B) 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 Purchaser or (C)
any
consents, approvals, authorizations, orders, registrations, qualifications
or other actions that have been, or prior to the Time of Delivery
will be,
obtained, waived or made;
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| (t) |
Neither
the Company nor any of its subsidiaries is (i) in violation of its
charter, by-laws, operating agreement or other organizational documents
or
(ii) in default in the performance or observance of any material
obligation, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to
which it is a party or by which it or any of its properties may be
bound,
except for any defaults under clause (ii) above that would not,
individually or in the aggregate, have a Material Adverse
Effect;
|
| (u) |
The
statements set forth in the Pricing Circular and the Offering Circular
under the caption “Description of Notes”, insofar as they purport to
constitute a summary of the terms of the Securities, the Guarantees
and
the Indenture, and under the captions “Description of Other Indebtedness”
and “Certain United States Federal Income Tax Considerations,” insofar as
they purport to describe the provisions of the laws and documents
referred
to therein, are accurate, complete and fair in all material respects;
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| (v) |
Except
as set forth in the Pricing Circular, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a
party or of which any property or assets of the Company or any of
its
subsidiaries is the subject which, if determined adversely to the
Company
or any of its subsidiaries, would individually or in the aggregate
have a
Material Adverse Effect; and, to the best of the Company’s knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by
others;
|
| (w) |
When
the Securities and the Guarantees are issued and delivered pursuant
to
this Agreement and the Indenture, neither the Securities nor
the Guarantees will be of the same class (within the meaning of Rule
144A
under the Act) as securities which are listed on a national securities
exchange registered under Section 6 of the Exchange Act or quoted
in a
U.S. automated inter-dealer quotation
system;
|
| (x) |
Neither
the Company nor any of the Guarantors is, and after giving effect
to the
offering and sale of the Securities and the application of the proceeds
thereof, none of them will be an “investment company”, as such term is
defined in the United States Investment Company Act of 1940, as amended,
and the rules and regulations thereunder (the “Investment
Company Act”);
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| (y) |
Assuming
the accuracy of the representations, warranties and agreements of
the
Purchaser contained in this Agreement, neither the Company nor any
of its
subsidiaries nor any person acting on its or their behalf (other
than the
Purchaser and its affiliates as to whom the Company and the Guarantors
make no representation) has offered or sold the Securities by means
of any
general solicitation or general advertising within the meaning of
Rule
502(c) under the Act or, with respect to Securities sold outside
the
United States to non-U.S. persons (as defined in Rule 902 under the
Act),
by means of any directed selling efforts within the meaning of Rule
902
under the Securities Act, and the Company, its subsidiaries, any
affiliate
of the Company or its subsidiaries, and any person acting on its
or their
behalf (other than the Purchaser and its affiliates as to whom the
Company
and the Guarantors make no representation) has complied with and
will
implement the “offering restriction” within the meaning of such Rule
902;
|
| (z) |
Assuming
the accuracy of the representations, warranties and agreements of
the
Purchaser contained in this Agreement, within the preceding six months,
neither the Company nor any other person acting on its behalf (other
than
the Purchaser and its affiliates as to whom the Company and the Guarantors
make no representation) has offered or sold to any person any Securities,
or any securities of the same or a similar class as the Securities,
other
than Securities offered or sold to the Purchaser hereunder. The Company
will take reasonable precautions designed to insure that any offer
or
sale, direct or indirect, in the United States or to any U.S. person
(as
defined in Rule 902 under the Act) of any Securities or any substantially
similar security issued by the Company, within six months subsequent
to
the date on which the distribution of the Securities and the Guarantees
has been completed (as notified to the Company by Xxxxxxx, Xxxxx
&
Co.), is made under restrictions and other circumstances reasonably
designed not to affect the status of the offer and sale of the Securities
in the United States and to U.S. persons contemplated by this Agreement
as
transactions exempt from the registration provisions of the Securities
Act;
|
| (aa) |
KPMG
LLP, who have certified certain financial statements of the Company
and
its subsidiaries, is an independent registered public accounting
firm as
required by the Act and the rules and regulations of the Commission
thereunder;
|
| (bb) |
The
market-related and industry data included in the Pricing Circular
and the
Offering Circular are based upon estimates by the Company derived
from
sources which the Company believes to be reliable and accurate in
all
material respects;
|
| (cc) |
The
consolidated historical financial statements, together with related
notes
forming part of the Pricing Circular and the Offering Circular (and
any
amendment or supplement thereto), present fairly in all material
respects
the consolidated financial position, results of operations and changes
in
cash flows of the Company and its subsidiaries on the basis stated
in the
Pricing Circular and the Offering Circular at the respective dates
or for
the respective periods to which they apply; such statements and related
notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved,
except as
disclosed therein; and the selected consolidated financial data and
summary financial data set forth in the Pricing Circular and the
Offering
Circular (and any amendment or supplement thereto) are, in all material
respects, accurately presented and prepared on a basis consistent
with
such financial statements and the books and records of the Company
and its
subsidiaries;
|
| (dd) |
The
pro forma financial statements included in the Pricing Circular and
the
Offering Circular have been prepared on a basis consistent with the
historical financial statements of the Company and its subsidiaries
and
give effect to assumptions used in the preparation thereof on a reasonable
basis and in good faith and present fairly the proposed transactions
contemplated by the Pricing Circular and the Offering Circular; and such
pro forma financial statements comply as to form in all material
respects
with the applicable accounting requirements of Rule 11-02 of Regulation
S-X of the Securities and Exchange Commission. The other pro forma
financial and statistical information and data included in the Pricing
Circular and the Offering Circular are, in all material respects,
accurately presented and, where applicable, except as described in
the
Pricing Circular and the Offering Circular, prepared on a basis consistent
with the pro forma financial
statements;
|
| (ee) |
To
the Company’s knowledge, neither the Company nor any of its subsidiaries
has violated any foreign, federal, state or local law or regulation
relating to any provisions of the Foreign Corrupt Practices Act or
the
rules and regulations promulgated thereunder, except for such violations
which, individually or in the aggregate, would not have a Material
Adverse
Effect;
|
| (ff) |
Each
certificate signed by any officer of the Company or any Guarantor
and
delivered to the Purchaser or counsel for the Purchaser shall be
deemed to
be a representation and warranty by such entity to the Purchaser
as to the
matters covered thereby;
|
| (gg) |
The Company maintains
a system of internal control over financial reporting (as such term
is
defined in Rule 13a-15(f) of the Exchange Act) that
has been designed by
the Company’s principal executive officer and principal financial officer,
or under their supervision,
to
provide reasonable assurance regarding
the reliability of financial reporting and the
preparation of financial statements for
external purposes in
accordance with
generally accepted accounting principles. The Company believes its
internal control over financial reporting is effective and the Company
is
not aware of any material weaknesses in its internal control over
financial reporting;
|
| (hh) |
Since
the date of the latest audited financial statements included or
incorporated by reference in the Pricing
Circular,
there has been no
change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect,
the
Company’s internal control over financial reporting;
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| (ii) |
The Company maintains
disclosure controls and procedures (as such term is defined in Rule
13a-15(e) of the Exchange Act);
such
disclosure controls and procedures have been designed to ensure that
material information relating to the Company and its subsidiaries
is made
known to the Company’s
principal
executive officer and principal financial officer by others within
those
entities;
and the Company believes such disclosure controls and procedures
are
effective;
|
| (jj) |
The
Company and each of its subsidiaries own or have the valid right
to use
all trademarks, service marks, trade names, trade secrets, inventions,
know-how, patents, copyrights, confidential information and other
intellectual property and proprietary rights (collectively, “intellectual
property rights”)
necessary for or used in the conduct their respective businesses
as
presently being conducted and as described in the Pricing Circular
and the
Offering Circular,
except where lack of ownership or possession of such intellectual
property
rights could not reasonably be expected to have a Material Adverse
Effect.
Neither the Company nor any of its subsidiaries has received any
notice of
any claim alleging that the Company or any of its subsidiaries infringes,
misappropriates, dilutes, violates or otherwise conflicts in any
material
respect with the rights of others, except for such matters as would
not,
individually or in the aggregate, have a Material Adverse Effect.
To the
knowledge of the Company, no third party has infringed, misappropriated,
diluted, violated or otherwise come into conflict with in any material
respect any intellectual property rights of the Company or any of
its
subsidiaries, and no claims for any of the foregoing have been brought
against any third party by the Company or its subsidiaries;
|
| (kk) |
Except
for such matters as would not, individually or in the aggregate,
have a
Material Adverse Effect, (i) neither the Company nor any subsidiary
is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any
judicial
or administrative interpretation thereof, including any judicial
or
administrative order, consent, decree or judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface
or
subsurface strata), natural resources or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum, petroleum products or by-products,
asbestos-containing materials or mold (collectively, “Hazardous
Materials”)
or to the manufacture, processing, distribution, use, treatment,
storage,
disposal, transport or handling of, or exposure to, Hazardous Materials
(collectively, “Environmental
Laws”),
(ii) the Company and its subsidiaries have all permits, authorizations
and
approvals required under any applicable Environmental Laws for the
operation of their respective businesses and facilities (“Environmental
Permits”)
and are each in compliance with their requirements, (iii) no material
expenditures will be required to maintain compliance with applicable
Environmental Laws or Environmental Permits; (iv) there are no pending,
or
to the knowledge of the Company, threatened administrative, regulatory
or
judicial actions, suits, demands, demand letters, claims, liens,
notices
of noncompliance or violation, investigation or proceedings relating
to
any Environmental Law against the Company or any of its subsidiaries
and
(v) to the knowledge of the Company, there are no events or circumstances
that would reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private
party or governmental body or agency, against or affecting the Company
or
any subsidiary relating to Hazardous Materials or Environmental
Laws;
|
The
Company and each of the Guarantors acknowledge that the Purchaser and, for
purposes of the opinions to be delivered to the Purchaser pursuant to Section
8
hereof, counsel to the Purchaser will rely upon the accuracy and truth of the
foregoing representations and hereby consent to such reliance.
| 2. |
Subject
to the terms and conditions herein set forth, the Company agrees
to issue
and sell to the Purchaser, and the Purchaser agrees to purchase from
the
Company, at a purchase price of 100% of the principal amount thereof,
plus
accrued interest, if any, from August 7, 2008 to the Time of Delivery
hereunder, $225.0 million in aggregate principal amount of Securities
(and
the Guarantees thereof).
|
| 3. |
Upon
the authorization by the Company of the release of the Securities
and the
Guarantees, the Purchaser proposes to offer the Securities and the
Guarantees for sale upon the terms and conditions set forth in this
Agreement and the Offering Circular and the Purchaser hereby represents
and warrants to, and agrees with the Company and the Guarantors
that:
|
| (a) |
It
will offer and sell the Securities only to: (i)
persons who it reasonably believes are “qualified institutional buyers”
(“QIBs”)
within the meaning of Rule 144A under the Act in transactions meeting
the
requirements of Rule 144A or (ii) upon the terms and conditions set
forth
in Annex I to this Agreement;
|
| (b) |
It
is an Institutional Accredited Investor;
and
|
| (c) |
It
will not offer or sell the Securities by any form of general solicitation
or general advertising, including but not limited to the methods
described
in Rule 502(c) under the Act.
|
| 4. | (a) |
The
Securities to be purchased by the Purchaser hereunder will be represented
by one or more definitive global Securities in book-entry form which
will
be deposited by or on behalf of the Company with The Depository Trust
Company (“DTC”)
or its designated custodian. The Company will deliver the Securities
and
the Guarantees to the Purchaser, for the account of the Purchaser,
against
payment by or on behalf of the Purchaser of the purchase price therefor
by
wire transfer in Federal (same day) funds to an account designated
by the
Company, by causing DTC to credit the Securities and the Guarantees
to the
account of Xxxxxxx, Xxxxx & Co. at DTC. The Company will cause the
certificates representing the Securities and the Guarantees to be
made
available to Xxxxxxx, Sachs & Co. for checking at least twenty-four
hours prior to the Time of Delivery at the office of Xxxxxx & Xxxxxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Closing
Location”)
The time and date of such delivery and payment shall be 9:00 a.m.,
New
York City time, on August 7, 2008 or such other time and date as
Xxxxxxx,
Sachs & Co. and the Company may agree upon in writing. Such time and
date are herein called the “Time
of Delivery.”
|
| (b) |
The
documents to be delivered at the Time of Delivery by or on behalf
of the
parties hereto pursuant to Section 8 hereof, including the cross-receipt
for the Securities and any additional documents requested by the
Purchaser
pursuant to Section 8(i) hereof, will be delivered at such time and
date
at the Closing Location, and the Securities will be delivered at
DTC or
its designated custodian), all at the Time of Delivery. A meeting
will be
held at the Closing Location at 3:00 p.m., New York City time, on
the New
York Business Day next preceding the Time of Delivery, at which meeting
the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto.
For
the purposes of this Section 4, “New York Business Day” shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on
which banking institutions in New York are generally authorized or
obligated by law or executive order to
close.
|
| 5. |
The
Company and the Guarantors, jointly and severally, agree with the
Purchaser:
|
| (a) |
To
prepare the Offering Circular in a form approved by the Purchaser,
to make
no amendment or any supplement to the Offering Circular which shall
be
disapproved by the Purchaser promptly after reasonable notice thereof,
and
to furnish the Purchaser with copies
thereof;
|
| (b) |
Promptly
from time to time to take such action as the Purchaser may reasonably
request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as they may request and to
comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete
the distribution of the Securities, provided that in connection therewith
none of the Company or the Guarantors shall be required to qualify
as a
foreign corporation or to file a general consent to service of process
in
any jurisdiction;
|
| (c) |
To
furnish the Purchaser with written and
electronic copies of the Offering Circular and each amendment or
supplement thereto with the independent accountants’ reports in the
Offering Circular, and any amendment or supplement containing amendments
to the financial statements covered by such reports, signed by
the
accountants, in such quantities as the Purchaser may from time
to time
reasonably request, and if, at any time prior to the expiration
of nine
months after the date of the Offering Circular, any event shall
have
occurred as a result of which the Offering Circular as then amended
or
supplemented would include an untrue statement of a material fact
or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when
such Offering Circular is delivered, not misleading, or, if for
any other
reason it shall be necessary or desirable during such same period
to amend
or supplement the Offering Circular, to notify the Purchaser and
upon the
Purchaser’s request to prepare and furnish without charge to the Purchaser
and to any dealer in securities as many written and
electronic copies as they may from time to time reasonably request
of an
amended Offering Circular or a supplement to the Offering Circular
which
will correct such statement or omission or effect such
compliance;
|
| (d) |
During
the period beginning from the date hereof and continuing until the
date
that is 90 days after the Time of Delivery, not to offer, sell, contract
to sell or otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to the Securities
without the prior written consent of the
Purchaser;
|
| (e) |
Not
to be or become, at any time prior to the expiration of two years
after
the Time of Delivery, an open-end investment company, unit investment
trust, closed-end investment company or face-amount certificate company
that is or is required to be registered under Section 8 of the Investment
Company Act;
|
| (f) |
At
any time when the Securities are outstanding and the Company is not
subject to Section 13 or 15(d) of the Exchange Act, for the benefit
of
holders from time to time of Securities, to furnish at its expense,
upon
request, to holders of Securities and prospective purchasers of securities
information (the “Additional
Issuer Information”)
satisfying the requirements of subsection (d)(4)(i) of Rule 144A
under the
Act;
|
| (g) |
To
use its best efforts to cause such Securities to be eligible for
the
PORTAL trading system of the Financial Industry Regulatory Authority,
Inc.;
|
| (h) |
Except
for such documents that are publicly available on the Commission's
Electronic Data Gathering Analyses and Retrieval System, to furnish
to the
holders of the Securities as soon as practicable after the end of
each
fiscal year an annual report (including a balance sheet and statements
of
income, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants)
and, as soon as practicable after the end of each of the first three
quarters of each fiscal year (beginning with the fiscal quarter ending
after the date of the Offering Circular), to make available to its
stockholders consolidated summary financial information of the Company
and
its subsidiaries for such quarter in reasonable detail, unless the
delivery of such information is otherwise required by and such information
is furnished under the terms of the
Indenture;
|
| (i) |
During
the period of two years after the Time of Delivery, the Company will
not,
and will not permit any of its “affiliates” (as defined in Rule 144 under
the Securities Act) to, resell any of the Securities which
constitute “restricted securities” under Rule 144 that have been
reacquired by any of them;
|
| (j) |
The
Company shall file and use all commercially reasonable efforts to
cause to
be declared or become effective under the Securities Act, on or prior
to
270 days after the Time of Delivery, a registration statement on
Form S-4
providing for the registration of (i) another series of debt securities
of
the Company, with terms identical to the Securities (the “Exchange
Securities”),
and the exchange of the Securities for the Exchange Securities, all
in a
manner which will permit persons who acquire the Exchange Securities
to
resell the Exchange Securities pursuant to Section 4(1) of the Securities
Act;
|
| (k) |
To
use the net proceeds received by the Company from the sale of the
Securities pursuant to this Agreement in the manner specified in
the
Pricing Circular under the caption “Use of Proceeds”;
|
| (l) |
To
do and perform all things required to be done and performed under
the
Operative Documents prior to and after the Time of Delivery;
and
|
| (m) |
To
obtain the approval of DTC for “book-entry” transfer of the Securities and
to comply with all of its agreements set forth in the representation
letter of the Company to DTC relating to the approval of the Securities
by
DTC for “book-entry transfer and to permit the Securities to be eligible
for clearance and settlement through DTC.
|
6.
| (a) |
(i)
The Company represents and agrees that, without the prior consent
of the
Purchaser, it has not made and will not make any offer relating
to the
Securities that, if the offering of the Securities contemplated
by this
Agreement were conducted as a public offering pursuant to a registration
statement filed under the Act with the Commission, would constitute
an
“issuer free writing prospectus,” as defined in Rule 433 under the Act
(any such offer is hereinafter referred to as a “Company
Supplemental Disclosure Document”);
|
(ii)
the
Purchaser represents and agrees that, without the prior consent of the Company,
other than one or more term sheets relating to the Securities containing
customary information and conveyed to purchasers of securities, it has not
made
and will not make any offer relating to the Securities that, if the offering
of
the Securities contemplated by this Agreement were conducted as a public
offering pursuant to a registration statement filed under the Act with the
Commission, would constitute a “free writing prospectus,” as defined in Rule 405
under the Act (any such offer (other than any such term sheets), is hereinafter
referred to as a “Purchaser
Supplemental Disclosure Document”);
and
(iii) any
Company Supplemental Disclosure Document or Purchaser Supplemental Disclosure
Document, as applicable, the use of which has been consented to by the Company
and the Purchaser is listed on Schedule I(b) hereto;
| 7. |
The
Company and each of the Guarantors, jointly and severally, covenants
and
agrees with the Purchaser that the Company and each of the Guarantors
will
pay or cause to be paid the following: (i) the fees, disbursements
and
expenses of the Company’s counsel and accountants in connection with the
issue of the Securities and the Guarantees and all other expenses
in
connection with the preparation, printing and filing of the Preliminary
Offering Circular and the Offering Circular and any amendments and
supplements thereto and the mailing and delivering of copies thereof
to
the Purchaser and dealers; (ii) the cost of printing or producing
this
Agreement, the Indenture, the Registration Rights Agreement, the
Blue Sky
and legal investment surveys, closing documents (including any
compilations thereof) and any other documents in connection with
the
offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the
Securities for
offering and sale under state securities laws as provided in Section
5(b)
hereof, including the reasonable fees and disbursements of counsel
for the
Purchaser in connection with such qualification and in connection
with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) the cost of preparing
the
Securities and the Guarantees; (vi) the fees and expenses of the
Trustee
and any agent of the Trustee and the fees and disbursements of counsel
for
the Trustee in connection with the Indenture and the Securities;
(vii) any
cost incurred in connection with the designation of the Securities
for
trading in PORTAL; and (viii) all other costs and expenses incident
to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 9 and 11 hereof,
the Purchaser will pay all of its own costs and expenses, including
the
fees of its counsel, transfer taxes on resale of any of the
Securities by
it, roadshow costs and any advertising expenses connected with any
offers
it may make.
|
| 8. |
The
obligations of the Purchaser hereunder shall be subject, in its
discretion, to the condition that all representations and warranties
and
other statements of the Company and the Guarantors herein are, at
and as
of the Time of Delivery, true and correct, the condition that the
Company
and the Guarantors shall have performed all of their respective
obligations hereunder theretofore to be performed, and the following
additional conditions:
|
| (a) |
Xxxxxx
& Xxxxxxx LLP, counsel for the Purchaser, shall have furnished to the
Purchaser their written opinions and negative assurance letter, in
each
case, dated the Time of Delivery, with respect to such matters as
the
Purchaser may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable
them
to pass upon such matters;
|
| (b) |
Xxxxxxx
Xxxx & Xxxxx LLP, counsel for the Company and the Guarantors, shall
have furnished to you their written opinion, dated the Time of Delivery,
substantially in the form set forth in Annex II
hereto;
|
| (c) |
Xxxxxx
Xxxxxxx PLLC, Michigan local counsel for the Company and the Guarantors,
shall have furnished to you their written opinion, dated the Time
of
Delivery, substantially in the form set forth in Annex III
hereto;
|
| (d) |
On
the date of the Offering Circular prior to the execution of this
Agreement
and also at the Time of Delivery, KPMG LLP shall have furnished to
you a
letter or letters, dated the respective dates of delivery thereof,
in form
and substance satisfactory to the Purchaser, to the effect set forth
in
Annex IV hereto;
|
|
(e)
|
(i)
Neither the Company nor any of its subsidiaries shall have sustained
since
the date of the latest audited financial statements included in the
Pricing Circular any loss or interference with its business from
fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order
or
decree, otherwise than as set forth or contemplated in the Pricing
Circular, and (ii) since the respective dates as of which information
is
given in the Pricing Circular there shall not have been any change
in the
capital stock or other equity interests or long-term debt of the
Company
or any of its subsidiaries or any change, or any development involving
a
prospective change, in or affecting the general affairs, management,
financial position, stockholders’ equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated
in the Pricing Circular, the effect of which, in any such case described
in clause (i) or (ii), is in the judgment of the Purchaser so material
and
adverse as to make it impracticable or inadvisable to proceed with
the
offering or the delivery of the Securities on the terms and in the
manner
contemplated in this Agreement and in the Offering
Circular;
|
| (f) |
On
or after the Applicable Time (i) no downgrading shall have occurred
in the
rating accorded the Company’s debt securities by any “nationally
recognized statistical rating organization”, as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of
any of the Company’s debt
securities;
|
| (g) |
On
or after the Applicable Time there shall not have occurred any of
the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or on NASDAQ;
(ii) a
suspension or material limitation in trading in the Company’s securities
on any exchange or in any over-the-counter market; (iii) a general
moratorium on commercial banking activities declared by either Federal
or
New York State authorities or a material disruption in commercial
banking
or securities settlement or clearance services in the United States;
(iv)
the outbreak or escalation of hostilities involving the United States
or
the declaration by the United States of a national emergency or war
or (v)
the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere,
if the
effect of any such event specified in clause (iv) or (v) in the judgment
of the Purchaser makes it impracticable or inadvisable to proceed
with the
offering or the delivery of the Securities on the terms and in the
manner
contemplated in the Offering Circular;
|
| (h) |
The
Securities have been designated for trading on PORTALSM;
|
| (i) |
The
Company and the Guarantors shall have furnished or caused to be furnished
to you at the Time of Delivery certificates of officers of each of
the
Company and each of the Guarantors reasonably satisfactory to you
as to
the accuracy of the representations and warranties of the Company
and the
Guarantors herein at and as of such Time of Delivery, and after giving
effect to the consummation of the transactions contemplated by the
Operative Documents, as to the performance by the Company and the
Guarantors of all of their respective obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters
set
forth in subsection (e) and (f) of this Section and as to such other
matters as you may reasonably request;
and
|
| (j) |
The
Company and each of the Guarantors shall have delivered executed
copies of
the Securities, the Guarantees, the Indenture and the Registration
Rights
Agreement to the Purchaser prior to or concurrently with the issuance
of
the Securities.
|
| 9. | (a) |
The
Company and each of the Guarantors, will, jointly and severally,
indemnify
and hold harmless the Purchaser against any losses, claims, damages
or
liabilities, joint or several, to which the Purchaser may become
subject,
under the Act or otherwise, insofar as such losses, claims, damages
or
liabilities (or actions in respect thereof) arise out of or are based
upon
an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Offering
Circular, the Pricing Circular
or the Offering Circular or any amendment or supplement thereto,
any
Company Supplemental Disclosure Document, or arise out of or are
based
upon the omission or alleged omission to state therein a material
fact
necessary to make the statements therein not misleading, and will
reimburse the Purchaser for any legal or other expenses reasonably
incurred by the Purchaser in connection with investigating or defending
any such action or claim as such expenses are incurred; provided,
however, that the Company and the Guarantors shall not be liable
in any such case to the extent that any such loss, claim, damage
or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Offering Circular, the Pricing Circular or the Offering Circular
or any
such amendment or supplement, or any Company Supplemental Disclosure
Document, in reliance upon and in conformity with written information
furnished to the Company by the Purchaser expressly for use
therein.
|
| (b) |
The
Purchaser will indemnify and hold harmless the Company and each Guarantor
against any losses, claims, damages or liabilities to which the Company
or
any Guarantor may become subject, under the Act or otherwise, insofar
as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Offering
Circular, the Pricing Circular and the Offering Circular, or any
amendment
or supplement thereto, or any Company Supplemental Disclosure Document,
or
arise out of or are based upon the omission or alleged omission to
state
therein a material fact or necessary to make the statements therein
not
misleading, in each case to the extent, but only to the extent, that
such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Offering Circular, the Pricing
Circular and the Offering Circular or any such amendment or supplement,
or
any Company Supplemental Disclosure Document, in reliance upon and
in
conformity with written information furnished to the Company by the
Purchaser expressly for use therein; and will reimburse the Company
and
any Guarantor for any legal or other expenses reasonably incurred
by the
Company and any Guarantor in connection with investigating or defending
any such action or claim as such expenses are
incurred.
|
| (c) |
Promptly
after receipt by an indemnified party under subsection (a) or (b)
above of
notice of the commencement of any action, such indemnified party
shall, if
a claim in respect thereof is to be made against the indemnifying
party
under such subsection, notify the indemnifying party in writing of
the
commencement thereof; but the omission to so notify the indemnifying
party
shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case any
such
action shall be brought against any indemnified party and it shall
notify
the indemnifying party of the commencement thereof, the indemnifying
party
shall be entitled to participate therein and, to the extent that
it shall
wish, jointly with any other indemnifying party similarly notified,
to
assume the defense thereof, with counsel reasonably satisfactory
to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
shall
not be liable to such indemnified party under such subsection for
any
legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with
the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the
entry of
any judgment with respect to, any pending or threatened action or
claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party
to
such action or claim) unless such settlement, compromise or judgment
(i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include
a
statement as to, or an admission of, fault, culpability or a failure
to
act, by or on behalf of any indemnified party. The
indemnifying party shall not be required to indemnify the indemnified
party for any amount paid or payable by the indemnified party in
the
settlement or compromise of, or entry into any judgment with respect
to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder without the
written consent of the indemnifying party, which consent shall not
be
unreasonably withheld.
|
| (d) |
If
the indemnification provided for in this Section 9 is unavailable
to or
insufficient to hold harmless an indemnified party under subsection
(a) or
(b) above in respect of any losses, claims, damages or liabilities
(or
actions in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities
(or
actions in respect thereof) in such proportion as is appropriate
to
reflect the relative benefits received by the Company and the Guarantors
on the one hand and the Purchaser on the other from the offering
of the
Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection
(c)
above, then each indemnifying party shall contribute to such amount
paid
or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative
fault of
the Company and the Guarantors on the one hand and the Purchaser
on the
other in connection with the statements or omissions which resulted
in
such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations.
The
relative benefits received by the Company and the Guarantors on the
one
hand and the Purchaser on the other shall be deemed to be in the
same
proportion as the total net proceeds from the offering of Securities
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Purchaser,
therefrom, in each case as set forth in the Offering Circular. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Guarantors on the one
hand or
the Purchaser on the other and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement
or omission. The Company, the Guarantors and the Purchaser agree
that it
would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount
paid
or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to
above
in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with
investigating or defending any such action or claim. Notwithstanding
the
provisions of this subsection (d), the Purchaser shall not be required
to
contribute any amount in excess of the amount by which the total
price at
which the Securities underwritten by it and distributed to investors
were
offered to investors exceeds the amount of any damages which the
Purchaser
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
|
| (e) |
The
obligations of the Company and the Guarantors under this Section
9 shall
be in addition to any liability which the Company and the Guarantors
may
otherwise have and shall extend, upon the same terms and conditions,
to
any affiliate of the Purchaser and each person, if any, who controls
the
Purchaser within the meaning of the Act; and the obligations of the
Purchaser under this Section 9 shall be in addition to any liability
which
the Purchaser may otherwise have and shall extend, upon the same
terms and
conditions, to each officer and director of the Company and the Guarantors
and to each person, if any, who controls the Company or the Guarantors
within the meaning of the Act.
|
| 10. |
The
respective indemnities, agreements, representations, warranties and
other
statements of the Company, the Guarantors and the Purchaser, as set
forth
in this Agreement or made by or on behalf of them, respectively,
pursuant
to this Agreement, shall remain in full force and effect, regardless
of
any investigation (or any statement as to the results thereof) made
by the
Purchaser or any controlling person of the Purchaser, or the Company,
the
Guarantors or any officer or director or controlling person of the
Company, or any Guarantor and shall survive delivery of and payment
for
the Securities.
|
| 11. |
If
the Securities and the Guarantees are not delivered by or on behalf
of the
Company as provided herein, the Company will reimburse the Purchaser
for
all out-of-pocket expenses approved in writing by you, including
fees and
disbursements of counsel, reasonably incurred by the Purchaser in
making
preparations for the purchase, sale and delivery of the Securities,
but
the Company shall then be under no further liability to the Purchaser
except as provided in Sections 7 and 9
hereof.
|
| 12. |
All
statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchaser shall be delivered or sent by mail,
telex
or facsimile transmission to Xxxxxxx, Sachs & Co., at Xxx Xxx Xxxx
Xxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department;
and
if to the Company or the Guarantors shall be delivered or sent by
mail,
telex or facsimile transmission to the address of the Company set
forth in
the Offering Circular, Attention: Xxxx Xxxxxxxxx, with a copy to
Xxxxxxx
X. Xxxxxxxxxx, Esq., Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000; provided,
however,
that any notice to a Purchaser pursuant to Section 9(c) hereof shall
be
delivered or sent by mail, telex or facsimile transmission to such
Purchaser at its address set forth in its Purchasers’ Questionnaire, or
telex constituting such Questionnaire, which address will be supplied
to
the Company by you upon request. Any such statements, requests, notices
or
agreements shall take effect upon receipt thereof. In
accordance with the requirements of the USA Patriot Act (Title III
of Pub.
L. 107-56 (signed into law October 26, 2001)), the Purchaser is required
to obtain, verify and record information that identifies its clients,
including the Company, which information may include the name and
address
of its respective clients, as well as other information that will
allow
the Purchases to properly identify its
clients.
|
| 13. |
This
Agreement shall be binding upon, and inure solely to the benefit
of, the
Purchaser, the Company and the Guarantors and, to the extent provided
in
Sections 9 and 10 hereof, the officers and directors of the Company
and
the Guarantors and each person who controls the Company, the Guarantors
or
the Purchaser, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have
any
right under or by virtue of this Agreement. No purchaser of any of
the
Securities from
the Purchaser shall be deemed a successor or assign by reason merely
of
such purchase.
|
| 14. |
Time
shall be of the essence of this
Agreement.
|
| 15. |
Each
of the Company and the Guarantors acknowledge and agree that (i)
the
purchase and sale of the Securities pursuant to this Agreement is
an
arm’s-length commercial transaction between the Company and the
Guarantors, on the one hand, and the Purchaser, on the other, (ii)
in
connection therewith and with the process leading to such transaction
the
Purchaser is acting solely as a principal and not the agent or fiduciary
of the Company or any of the Guarantors, (iii) the Purchaser has
not
assumed an advisory or fiduciary responsibility in favor of any of
the
Company or the Guarantors with respect to the offering contemplated
hereby
or the process leading thereto (irrespective of whether the Purchaser
has
advised or is currently advising any of the Company or the Guarantors
on
other matters) or any other obligation to any of the Company or the
Guarantors except the obligations expressly set forth in this Agreement
and (iv) the Company and the Guarantors have consulted their own
legal and
financial advisors to the extent they have deemed appropriate. Each
of the
Company and the Guarantors agree that it will not claim that the
Purchaser
has rendered advisory services of any nature or respect, or owes
a
fiduciary or similar duty to any of the Company or the Guarantors,
in
connection with such transaction or the process leading
thereto.
|
| 16. |
This
Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company, the Guarantors and the Purchaser
with respect to the subject matter
hereof.
|
| 17. |
This
Agreement shall be governed by and construed in accordance with the
laws
of the State of New York.
|
| 18. |
Each
of the Company, the Guarantors and the Purchaser hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and
all
right to trial by jury in any legal proceeding arising out of or
relating
to this Agreement or the transactions contemplated
hereby.
|
| 19. |
This
Agreement may be executed by any one or more of the parties hereto
in any
number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one
and the
same instrument.
|
| 20. |
Notwithstanding
anything herein to the contrary, the Company and the Guarantors (and
their
respective employees, representatives, and other agents) are authorized
to
disclose to any and all persons, the tax treatment and tax structure
of
the potential transaction and all materials of any kind (including
tax
opinions and other tax analyses) provided to the Company relating
to that
treatment and structure, without the Purchaser imposing any limitation
of
any kind. However, any information relating to the tax treatment
and tax
structure shall remain confidential (and the foregoing sentence shall
not
apply) to the extent necessary to enable any person to comply with
securities laws. For this purpose, “tax treatment” means U.S. federal and
state income tax treatment, and “tax structure” is limited to any facts
that may be relevant to that
treatment.
|
If
the
foregoing is in accordance with your understanding, please sign and return
to us
counterparts hereof and, upon the acceptance hereof by you, this letter and
such
acceptance hereof shall constitute a binding agreement between the Purchaser,
the Company and the Guarantors.
[Signature
Pages Follow]
Very
truly yours,
|
Aeroflex
Incorporated
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
President and Chief Executive Officer
|
|
|
Aeroflex
Colorado Springs, Inc.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
President
|
|
|
Aeroflex
/ Inmet, Inc.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
Vice President
|
|
|
Aeroflex
/ KDI, Inc.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
Vice President
|
|
|
Aeroflex
/ Metelics, Inc.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
Vice President
|
|
Signature
page to Purchase Agreement
|
Aeroflex
Microelectronic Solutions, Inc.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
Vice President
|
|
|
Aeroflex
Plainview, Inc.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
President
|
|
|
Aeroflex
High Speed Test Solutions, Inc.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
President
|
|
|
Aeroflex
/ Weinschel, Inc.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
Vice President
|
|
|
Aeroflex
Wichita, Inc.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
President
|
|
|
IFR
Finance, Inc.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
President
|
|
|
IFR
Systems, Inc.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
President
|
|
|
MCE
Asia, Inc.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
President
|
|
|
AIF
Corp.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
President
|
|
|
Aeroflex
Bloomingdale, Inc.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
President
|
|
|
Micro-Metrics,
Inc.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
President
|
|
|
Aeroflex
Properties Corp.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
Secretary
|
|
|
Comar
Products Inc.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
President
|
|
|
Aeroflex
International Inc.
|
|
|
By:
|
/s/ Xxxxxxx Xxxxx |
|
Name:
Xxxxxxx Xxxxx
|
|
|
Title:
Secretary
|
|
Signature
page to Purchase Agreement
|
Xxxxxxx,
Xxxxx & Co.
|
|
|
By
|
/s/ Xxxxxxx, Sachs & Co. |
Signature
page to Purchase Agreement
SCHEDULE
I
| (a) |
Additional
Documents Incorporated by
Reference:
|
None.
| (b) |
Approved
Supplemental Disclosure Documents:
|
None.
SI-1
SCHEDULE
II
[See
attached.]
SII-1
SCHEDULE
III
Guarantors
Aeroflex
Colorado Springs, Inc.
Aeroflex
/ Inmet, Inc.
Aeroflex
/ KDI, Inc.
Aeroflex
/ Metelics, Inc.
Aeroflex
Microelectronic Solutions, Inc.
Aeroflex
Plainview, Inc.
Aeroflex
High Speed Test Solutions, Inc.
Aeroflex
/ Weinschel, Inc.
Aeroflex
Wichita, Inc.
IFR
Finance, Inc.
IFR
Systems, Inc.
MCE
Asia,
Inc.
AIF
Corp.
Aeroflex
Bloomingdale, Inc.
Micro-Metrics,
Inc.
Aeroflex
Properties Corp.
Comar
Products Inc.
Aeroflex
International Inc.
SIII-1
ANNEX
I
| (1) |
The
Securities have not been and will not be registered under the Act
and may
not be offered or sold within the United States or to, or for the
account
or benefit of, U.S. persons except in accordance with Regulation
S under
the Act or pursuant to an exemption from the registration requirements
of
the Act. The Purchaser represents that it has offered and sold the
Securities, and will offer and sell the Securities (i) as part of
its
distribution at any time and (ii) otherwise until 40 days after the
later
of the commencement of the offering and the Time of Delivery, only
in
accordance with Rule 903 of Regulation S or Rule 144A under the Act.
Accordingly, the Purchaser agrees that neither it, its affiliates
nor any
persons acting on its or their behalf has engaged or will engage
in any
directed selling efforts with respect to the Securities, and it and
they
have complied and will comply with the offering restrictions requirement
of Regulation S. The Purchaser agrees that, at or prior to confirmation
of
sale of Securities (other than a sale pursuant to Rule 144A), it
will have
sent to each distributor, dealer or person receiving a selling concession,
fee or other remuneration that purchases Securities from it during
the
restricted period a confirmation or notice to substantially the following
effect:
|
“The
Securities covered hereby have not been registered under the U.S. Securities
Act
of 1933 (the “Securities Act”) and may not be offered and sold within the United
States or to, or for the account or benefit of, U.S. persons (i) as part of
their distribution at any time or (ii) otherwise until 40 days after the later
of the commencement of the offering and the closing date, except in either
case
in accordance with Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meaning given to them by Regulation
S.”
Terms
used in this paragraph have the meanings given to them by Regulation
S.
The
Purchaser further agrees that it has not entered and will not enter into any
contractual arrangement with respect to the distribution or delivery of the
Securities, except with its affiliates or with the prior written consent of
the
Company.
| (2) |
Notwithstanding
the foregoing, Securities in registered form may be offered, sold
and
delivered by the Purchaser in the United States and to U.S. persons
pursuant to Section 3 of this Agreement without delivery of the written
statement required by paragraph (1)
above.
|
| (3) |
The
Purchaser agrees that it will not offer, sell or deliver any of the
Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable
laws
thereof, and that it will take at its own expense whatever action
is
required to permit its purchase and resale of the Securities in such
jurisdictions. The Purchaser understands that no action has been
taken to
permit a public offering in any jurisdiction outside the United States
where action would be required for such purpose. The Purchaser agrees
not
to cause any advertisement of the Securities to be published in any
newspaper or periodical or posted in any public place and not to
issue any
circular relating to the Securities, except in any such case with
Xxxxxxx,
Xxxxx & Co.’s express written consent and then only at its own risk
and expense.
|
AI-1
ANNEX
II
XXXXXXX
XXXX & XXXXX OPINION
[Provided
under separate cover]
AII-1
ANNEX
III
XXXXXX
XXXXXXX PLLC OPINION
[Provided
under separate cover]
AIII-1
ANNEX
IV
KPMG
COMFORT LETTER
[Provided
under separate cover]
AIV-1
