EXHIBIT 10.1
Armor Holdings, Inc.
$150,000,000
8 1/4% Senior Subordinated Notes due 2013
PURCHASE AGREEMENT
August 6, 2003
Wachovia Capital Markets, LLC
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Ladies and Gentlemen:
Armor Holdings, Inc., a Delaware corporation (the "Company") and
certain of the Company's domestic subsidiaries listed on Schedule 1 hereto (the
"Guarantors") confirm their agreement with Wachovia Capital Markets, LLC (the
"Initial Purchaser") on the terms set forth herein.
1. Notes. The Company proposes to issue and sell to the Initial
Purchaser $150,000,000 principal amount of its 8 1/4% Senior Subordinated Notes
due 2013 (the "Notes"), guaranteed on a senior subordinated basis by the
Guarantors (the "Note Guarantees"). The Notes are to be issued under an
indenture (the "Indenture") to be dated as of the Closing Date (as defined in
Section 3 hereof) among the Company, the Guarantors and Wachovia Bank, National
Association, as trustee (the "Trustee"). This Agreement, the Registration Rights
Agreement, to be dated the Closing Date, among the Initial Purchaser, the
Company and the Guarantors (the "Registration Rights Agreement"), and the
Indenture are hereinafter collectively referred to as the "Operative Documents"
and the execution and delivery of the Operative Documents and the transactions
contemplated herein and therein are hereinafter referred to as the "Offering".
The offer and sale of the Notes to the Initial Purchaser will be made
without registration of the Notes (and the Note Guarantee) under the Securities
Act of 1933, as amended (the "Securities Act"), in reliance upon certain
exemptions from the registration requirements of the Securities Act. The Initial
Purchaser has advised the Company and the Guarantors that they will offer and
sell the Notes purchased by them hereunder in accordance with Section 4 hereof
and the Final Memorandum (as defined below) as soon as they deem advisable.
In connection with the sale of the Notes, the Company has prepared a
preliminary offering memorandum, dated July 25, 2003 (the "Preliminary
Memorandum"), and a final offering memorandum, dated the date hereof (the "Final
Memorandum"). Each of the Preliminary Memorandum and the Final Memorandum sets
forth certain information concerning the Company, the Notes, the Operative
Documents and the Offering. As used herein, the term "Preliminary Memorandum"
and "Final Memorandum" shall include in each case the documents incorporated by
reference therein. The Company hereby confirms that it has authorized the use
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of the Preliminary Memorandum and the Final Memorandum, and any amendment or
supplement thereto, in connection with the offer and sale of the Notes by the
Initial Purchaser. Unless stated to the contrary, all references herein to the
Final Memorandum are to the Final Memorandum as of the date hereof (the
"Execution Date") and are not meant to include any amendment or supplement, or
any information incorporated by reference therein, subsequent to the Execution
Date.
Concurrently with, or prior to, the consummation of the sale of the
Notes hereunder, the Company will obtain a consent (the "Bank Consent") from the
lenders under its existing credit facility pursuant to the Amended and Restated
Credit Agreement, dated as of August 22, 2001 (the "Existing Credit Agreement"),
among the Company, as borrower, Bank of America, N.A., as lender and
administrative agent, and other lenders, permitting the Company to conduct and
consummate the Offering.
2. Representations and Warranties of the Company and the Guarantors.
The Company and the Guarantors jointly and severally represent and warrant to,
and agree with, the Initial Purchaser that:
(a) The Preliminary Memorandum, at the date thereof, did not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Final Memorandum (without regard to
any documents incorporated by reference therein subsequent to the Execution
Date), at the date hereof, does not and at the Closing Date (as defined below)
will not (and any amendment or supplement thereto, at the date thereof and at
the Closing Date, will not), contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to the
information contained in or omitted from the Preliminary Memorandum or the Final
Memorandum (or any amendment or supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of the Initial Purchaser specifically for inclusion therein, as specified in
Section 11.
(b) Each of the Company, the Guarantors and their direct and indirect
subsidiaries is duly organized and is in good standing under the laws of the
jurisdiction in which it is chartered or organized, validly existing and is duly
qualified to do business as a foreign corporation under the laws of each
jurisdiction which requires such qualification wherein it owns or leases
material properties or conducts material business, except in such jurisdictions
in which the failure to be so incorporated or organized and validly existing or
to so qualify, in the aggregate, would not have a Material Adverse Effect.
Schedule 1 sets forth each jurisdiction in which each of the Company and the
Guarantors is chartered or organized and validly existing. As used in this
Agreement, the term "Material Adverse Effect" shall mean a material adverse
change in or effect on the business, condition (financial or otherwise),
properties, net worth or results of operations, whether or not in the ordinary
course of business, of the Company, the Guarantors and their direct and indirect
subsidiaries, considered as one enterprise. As used in this Section 2(b) only,
the term Material Adverse Effect does not include a change resulting from a
materially adverse change to the industry generally in which the Company
operates.
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(c) Each of the Company, the Guarantors and their direct and indirect
subsidiaries has full power (corporate and other) to own or lease their
respective properties and conduct their respective businesses as described in
the Final Memorandum; and each of the Company and the Guarantors has full power
(corporate and other) to enter into the Operative Documents and to carry out all
the terms and provisions hereof and thereof to be carried out by it.
(d) The Company has an authorized, issued and outstanding
capitalization as set forth in the Final Memorandum. All of the issued shares of
capital stock of the Company and the Guarantors have been duly authorized and
validly issued and are fully paid and nonassessable.
(e) The issued shares of capital stock of each of the Company's direct
and indirect subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable and, except as described in the Final Memorandum,
are (i) owned of record and beneficially by the Company, either directly or
through wholly-owned subsidiaries, and (ii) are free and clear of any pledge,
lien, encumbrance, security interest, restriction on voting or transfer,
preemptive rights or other defect in title or any claim of any third party or
that would have a Material Adverse Effect. Schedule 2 sets forth all direct and
indirect subsidiaries of the Company that constitute a "Significant Subsidiary"
within the meaning of Article 1 of Regulation S-X of the Securities Act.
(f) No direct or indirect subsidiary of the Company is prohibited,
directly or indirectly, from paying any dividends to the Company, from making
any other distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or any
other direct or indirect subsidiary of the Company, except as provided by
applicable laws or regulations, by the Indenture, or as described in or
contemplated by the Final Memorandum.
(g) Except as set forth in the Final Memorandum, there are no
outstanding (i) securities or obligations of the Company convertible into or
exchangeable for any capital stock of the Company, (ii) warrants, rights or
options to subscribe for or purchase from the Company, any such capital stock or
any such convertible or exchangeable securities or obligations or (iii)
obligations of the Company to issue such shares, any such convertible or
exchangeable securities or obligations, or any such warrants, rights or options.
(h) PricewaterhouseCoopers LLP, who has certified the financial
statements and supporting schedules included in the Final Memorandum and
delivered its reports with respect thereto are independent public accountants
with respect to the Company and each Guarantor within the meaning of the
Securities Act and the applicable rules and regulations thereunder.
(i) The consolidated financial statements (including the notes thereto)
and schedules of the Company and the Guarantors (as a group) included in the
Final Memorandum fairly present in all material respects the financial position
of the Company and the Guarantors on a consolidated basis and their results of
operations as of the dates and for the periods specified therein; since the date
of the latest of such financial statements, there has been no change nor any
development or event involving a prospective change which has had or could
reasonably be expected to have a Material Adverse Effect; such financial
statements and schedules have been prepared in accordance with generally
accepted accounting principles consistently applied
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throughout the periods involved (except as otherwise expressly noted in the
notes thereto or elsewhere in the Final Memorandum); and the other financial and
statistical information and data included in the Final Memorandum are accurately
presented and prepared on a basis consistent with such financial statements and
the books and records of the Company, the Guarantors and their direct and
indirect subsidiaries.
(j) Each of the Company, the Guarantors and their direct and indirect
subsidiaries maintains a system of internal accounting controls sufficient to
provide reasonable assurances that: (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(k) The Operative Documents have been, or will be, duly authorized by
all necessary corporate action of the Company and, to the extent that each is a
party thereto, the Guarantors and, when duly executed and delivered by the
Company and the Guarantors and by the other parties thereto, will constitute
legal, valid and binding obligations of the Company and the Guarantors (to the
extent each is a party thereto), enforceable against the Company and the
Guarantors in accordance with their terms, except as the enforcement thereof may
be limited to bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity.
(l) The Indenture conforms in all material respects to the requirements
of the Trust Indenture Act of 1939, as amended (the "TIA") and to the rules and
regulations of the Commission applicable to an indenture that is qualified
thereunder.
(m) The Notes and the Note Guarantees have been, or will be, duly
authorized by all necessary corporate action for issuance and sale pursuant to
this Agreement and, when executed, authenticated, issued and delivered in the
manner provided for in the Indenture and sold and paid for as provided in this
Agreement, the Notes and the Note Guarantees will constitute legal, valid and
binding obligations of the Company and the Guarantors entitled to the benefits
of the Indenture and enforceable against the Company and the Guarantors in
accordance with their terms and the terms of the Indenture, except as the
enforcement thereof may be limited to bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity.
(n) The issuance, offering and sale of the Notes to the Initial
Purchaser by the Company pursuant to this Agreement and the compliance by the
Company and, to the extent each is a party thereto, the Guarantors with the
other provisions of the Operative Documents herein and therein set forth, do not
(i) require the consent, approval, authorization, order, registration or
qualification of, or filing with, any governmental authority or court, or body
or arbitrator having jurisdiction over each of the Company, the Guarantors and
their direct and
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indirect subsidiaries or their respective assets or properties, except for any
such consent, approval, authorization, order, registration, qualification or
filing that may be required pursuant to any applicable state security or "blue
sky" laws; or (ii) conflict with, result in a breach or violation of, or
constitute a default under, any indenture, note purchase agreement, credit
agreement, mortgage, deed of trust or loan agreement, or material agreement or
material instrument to which any of the Company, the Guarantors or any of their
direct or indirect subsidiaries is a party or by which any of the Company, the
Guarantors or any of their direct or indirect subsidiaries or any of their
respective properties is bound, or with the charter or by-laws of any of the
Company, the Guarantors or any of their direct or indirect subsidiaries, or any
statute, rule or regulation or any judgment, order or decree of any governmental
authority or court or any arbitrator applicable to the Company, the Guarantors
or any of their direct or indirect subsidiaries, except for any statute, rule or
regulation or any judgment, order or decree of any governmental authority or
court or any arbitrator the noncompliance with which would not result in a
Material Adverse Effect or adversely affect the offering, issuance and sale of
the Notes. Schedule 3 sets forth all material agreements and instruments and as
indicated, certain other agreements by which the Company and/or Guarantors are
bound.
(o) No legal or governmental proceedings or investigations are pending
or, to the Company's knowledge, threatened to which the Company, the Guarantors
or any of their direct or indirect subsidiaries is a party or to which property
of the Company, the Guarantors or any of their direct or indirect subsidiaries
is subject that are not described in the Preliminary Memorandum or Final
Memorandum, except for such proceedings or investigations that, if the subject
of an unfavorable decision, ruling or finding, would not, individually or in the
aggregate, result in a Material Adverse Effect.
(p) No relationship, direct or indirect, exists between or among the
Company, the Guarantors or any of their direct or indirect subsidiaries, on the
one hand, and the directors, officers, shareholders, customers or suppliers of
the Company, the Guarantors or any of their direct or indirect subsidiaries on
the other hand, that would be required by the Securities Act to be described in
a prospectus were the Notes being issued and sold in a public offering, that is
not described in the Preliminary Memorandum or the Final Memorandum.
(q) None of the Company or the Guarantors is now nor after giving
effect to the issuance of the Notes and the execution, delivery and performance
of the Operative Documents and the consummation of the Offering, will be (i)
insolvent, (ii) left with unreasonably small capital with which to engage in its
anticipated businesses or (iii) incurring debts or other obligations beyond its
ability to pay such debts or obligations as they become due.
(r) Neither the Company nor the Guarantors has distributed and, prior
to the later of (i) the Closing Date and (ii) the completion of the distribution
of the Notes, will distribute any offering material in connection with the
offering and sale of the Notes other than the Preliminary Memorandum, the Final
Memorandum or any amendment or supplement thereto.
(s) Each of the Company, the Guarantors and their direct and indirect
subsidiaries has good and marketable title in fee simple to all items of real
property and marketable title to all personal property owned by each of them, in
each case except as set forth in the Final Memorandum, free and clear of any
pledge, lien, encumbrance, security interest or other defect
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or claim of any third party, except such as would not in the aggregate have a
Material Adverse Effect. Any real property leased by each of the Company, the
Guarantors or any of their direct or indirect subsidiaries, is held under valid,
subsisting and enforceable leases, with such exceptions as do not have a
Material Adverse Effect.
(t) 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(c) of ERISA (other than events with
respect to which the 30-day notice requirement under Section 4043 of ERISA has
been waived) has occurred, exists or is reasonably expected to occur with
respect to any employee benefit plan (as defined in Section 3(3) of ERISA) that
the Company or any of its direct or indirect subsidiaries maintains, contributes
to or has any obligation to contribute to, or with respect to which the Company
or any of its direct or indirect subsidiaries has any liability, direct or
indirect, contingent or otherwise (a "Plan") which would have a Material Adverse
Effect; each Plan is in compliance in all material respects with applicable law,
including ERISA and the Code; the Company or any of its direct or indirect
subsidiaries has not incurred and does not expect to incur liability under Title
IV of ERISA with respect to the termination of, or withdrawal from, any Plan;
and each Plan that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether by
action or failure to act, which could reasonably be expected to cause the loss
of such qualification. No labor dispute with the employees of the Company or any
of its direct and indirect subsidiaries exists or is threatened or imminent
which could result in a Material Adverse Effect.
(u) No proceeding looking toward merger, consolidation, liquidation or
dissolution of the Company or the Guarantors, or the sale of all or
substantially all of the assets of the Company, the Guarantors or their direct
or indirect subsidiaries is pending or contemplated, except as set forth in the
Final Memorandum.
(v) Each of the Company and its direct and indirect subsidiaries owns
or otherwise possesses adequate rights to use all material patents, trademarks,
service marks, trade names and copyrights, licenses, all applications and
registrations for each of the foregoing, and all other material proprietary
rights and confidential information necessary to conduct their respective
businesses as currently conducted; and none of the Company, the Guarantors or
any of their direct or indirect subsidiaries has received any notice, or is
otherwise aware, of any infringement of or conflict with the rights of any third
party with respect to any of the foregoing which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(w) Each of the Company, the Guarantors and their direct and indirect
subsidiaries is insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts and with such deductibles as
are prudent in the businesses in which they are engaged, except where the
failure to have such would not have a Material Adverse Effect; and none of the
Company, the Guarantors or any of their direct or indirect subsidiaries has any
reason to believe that it will not be able to renew its existing insurance
coverage as and when
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such coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have a Material
Adverse Effect.
(x) Each of the Company, the Guarantors and their direct and indirect
subsidiaries possesses all certificates, authorizations and permits required by
federal, state or foreign regulatory authorities to conduct their respective
businesses, except where the failure to have such would not have a Material
Adverse Effect, and none of the Company, the Guarantors and any such subsidiary
has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(y) Except as set forth in the Final Memorandum:
(i) Each of the Company, the Guarantors and their direct and
indirect subsidiaries is and has been in compliance with all applicable
laws, statutes, ordinances, rules, regulations, orders, judgments,
decisions, decrees, standards, and requirements ("Legal Requirements")
relating to: human health and safety; pollution; management, disposal
or release of any chemical substance, product or waste; and protection,
cleanup, remediation or corrective action relating to the environment
or natural resources ("Environmental Law");
(ii) Each of the Company, the Guarantors and their direct and
indirect subsidiaries has obtained and is in compliance with the
conditions of all permits, authorizations, licenses, approvals, and
variances necessary under any Environmental Law for the continued
conduct in the manner now conducted of the business of each of the
Company and any such subsidiary ("Environmental Permits");
(iii) There are no past or present conditions or
circumstances, including but not limited to pending changes in any
Environmental Law or Environmental Permits, that are reasonably likely
to interfere with the conduct of the business of each of the Company,
the Guarantors and their direct and indirect subsidiaries in the manner
now conducted or which would interfere with compliance with any
Environmental Law or Environmental Permits; and
(iv) There are no past or present conditions or circumstances
at, or arising out of, the business, assets and properties of each of
the Company, the Guarantors and their direct and indirect subsidiaries
or any businesses, assets or properties formerly leased, operated or
owned by each of the Company, the Guarantors and their direct and
indirect subsidiaries, including but not limited to on-site or off-site
disposal or release of any chemical substance, product or waste, which
may give rise to: (i) liabilities or obligations for any cleanup,
remediation or corrective action under any Environmental Law; (ii)
claims arising under any Environmental Law for personal injury,
property damage, or damage to natural resources; (iii) liabilities or
obligations incurred by the Company, the Guarantors and their direct
and indirect subsidiaries to comply with any Environmental Law; or (iv)
fines or penalties arising under any Environmental Law;
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except in each case for any noncompliance or conditions or circumstances that,
individually or in the aggregate, would not result in a Material Adverse Effect.
(z) No default exists, and no event has occurred that, with notice or
lapse of time or both, would constitute a default in the due performance and
observation of any term, covenant or condition of any indenture, mortgage, deed
of trust, lease or other agreement or instrument to which each of the Company,
the Guarantors and their direct and indirect subsidiaries is a party or by which
the Company, the Guarantors and their direct and indirect subsidiaries, or any
of their respective properties, is bound which would have or which, after notice
or lapse of time or both, would have a Material Adverse Effect.
(aa) Each of the Company, the Guarantors and their direct and indirect
subsidiaries has filed all foreign, federal, state and local tax returns that
are required to be filed or have requested extensions thereof and have paid all
taxes required to be paid by them and any other assessment, fine or penalty
levied against them, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being
contested in good faith and for which the Company and the Guarantors retain
adequate reserves and except in each case for any noncompliance that,
individually or in the aggregate, would not result in a Material Adverse Effect.
(bb) Neither the Company, the Guarantors, nor after giving effect to
the sale of the Notes and the application of the proceeds thereof as described
in the Final Memorandum, will be an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(cc) None of the Company, the Guarantors, any of their Affiliates (as
defined in Rule 501(b) of Regulation D under the Securities Act ("Regulation
D")), and any person acting on its or their behalf (other than the Initial
Purchaser and its agents, as to which the Company makes no representation or
warranty) has, directly or indirectly, made offers or sales of any security, or
solicited offers to buy any security, under circumstances that would require the
registration of the Notes under the Securities Act.
(dd) None of the Company, the Guarantors, any of their Affiliates, and
any person acting on its or their behalf (other than the Initial Purchaser and
its agents, as to which the Company makes no representation or warranty) has
engaged in any form of general solicitation or general advertising (within the
meaning of Regulation D) in connection with any offer or sale of the Notes in
the United States.
(ee) None of the Company, the Guarantors, any of their Affiliates and
any person acting on its or their behalf (other than the Initial Purchaser and
its agents, as to which the Company makes no representation or warranty) has
engaged in any directed selling efforts with respect to the Notes, and each of
them has complied with the offering restrictions requirement of Regulation S
under the Securities Act ("Regulation S"). Terms used in this paragraph have the
meanings given to them by Regulation S.
(ff) None of the Company, the Guarantors and any of their Affiliates
has taken, directly or indirectly, any action designed to cause or result in, or
which has constituted or which
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might reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company or the Guarantors to
facilitate the sale or resale of the Notes; nor has the Company, the Guarantors
or any of their Affiliates paid or agreed to pay to any person any compensation
for soliciting another to purchase any securities of the Company or the
Guarantors (except as contemplated by this Agreement).
(gg) The Notes satisfy the eligibility requirements of Rule 144A(d)(3)
under the Securities Act.
(hh) Assuming the accuracy of the representations and warranties of the
Initial Purchaser in Section 4 hereof and compliance by the Initial Purchaser
with the procedures set forth in Section 4 hereof, it is not necessary, in
connection with the offer, sale and delivery of the Notes to the Initial
Purchaser in the manner contemplated by this Agreement, the Preliminary
Memorandum and the Final Memorandum, to register any of the Notes or the Note
Guarantees under the Securities Act or to qualify the Indenture under the Trust
Indenture Act.
Each certificate signed by any officer of the Company or the Guarantors
and delivered to the Initial Purchaser or its counsel shall be deemed to be a
representation and warranty by the Company or the Guarantors, as the case may
be, to the Initial Purchaser as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell, and the Initial Purchaser agrees to purchase from the Company,
the aggregate principal amount of Notes at a purchase price equal to 97.000% of
the principal amount thereof. One or more certificates in definitive form or
global form, as instructed by the Initial Purchaser, for the Notes that the
Initial Purchaser has agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Initial Purchaser
requests upon notice to the Company at least 48 hours prior to the Closing Date,
shall be delivered by or on behalf of the Company to the Initial Purchaser for
the account of the Initial Purchaser, against payment by or on behalf of the
Initial Purchaser of the purchase price therefor by wire transfer in same-day
funds to the account of the Company. Such delivery of and payment for the Notes
shall be made at 10:00 A.M., New York City time, on August 12, 2003, or at such
other time or date as the Initial Purchaser and the Company may agree upon, such
time and date of delivery against payment being herein referred to as the
"Closing Date". The Company will make such certificate or certificates for the
Notes available for checking by the Initial Purchaser at the New York offices of
Shearman & Sterling LLP ("Counsel for the Initial Purchaser") at least 24 hours
prior to the Closing Date.
4. Offering of the Notes and the Initial Purchaser's Representations
and Warranties. The Initial Purchaser represents and warrants to, and agrees
with, the Company that:
(a) It is an "accredited investor" (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act).
(b) It (and any person acting on its behalf) has not offered or sold,
and it (and any person acting on its behalf) will not offer or sell, any Notes
except (i) to those it reasonably believes to be qualified institutional buyers
(as defined in Rule 144A under the Securities Act)
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("QIBs") in transactions meeting the requirements of Rule 144A, or (ii) in
accordance with the restrictions set forth in Regulation S. In connection with
each sale pursuant to clause (i) above, the Initial Purchaser (and any person
acting on its behalf) has taken or will take reasonable steps to ensure that the
purchaser of such Notes is aware that such sale is being made in reliance upon
Rule 144A.
(c) Neither it nor any person acting on its behalf has made or will
make offers or sales of the Notes other than in accordance with Rule 144A or
Regulation S and therefore not by means of any form of general solicitation or
general advertising (within the meaning of Regulation D).
(d) At or prior to the confirmation of any sale of any Notes sold in
reliance on Regulation S, it (and any person acting on its behalf) will have
sent to each distributor, dealer or other person receiving a selling concession,
fee or other remuneration that purchases Notes from it during the restricted
period (as defined in Regulation S) a confirmation or notice substantially to
the following effect:
"The Notes 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 Notes
and August 12, 2003, except in either case in accordance with Regulation S or
Rule 144A under the Securities Act. Terms used above have the meanings given to
them by Regulation S."
(e) It (i) has not offered or sold and, prior to the expiration of a
period of six months from the closing of the offering of the Notes, will not
offer or sell any Notes 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 Regulation 1995 (as amended); (ii) has only communicated or
caused to be communicated and will only communicate or cause to be communicated
any invitation or inducement to engage in investment activity (within the
meaning of section 21 of the Financial Services and Markets Act 2000 (the
"FSMA")) received by it in connection with the issue or sale of any Notes in
circumstances in which section 21(1) of the FSMA does not apply to the Company;
and (iii) has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Notes in, from or
otherwise involving the United Kingdom.
5. Covenants of the Company and the Guarantors. The Company and the
Guarantors, jointly and severally, covenant and agree with the Initial Purchaser
that:
(a) The Company will furnish to the Initial Purchaser and to Counsel
for the Initial Purchaser, as soon as reasonably possible, without charge,
during the period referred to in paragraph (c) below, as many copies of the
Final Memorandum and any amendments and supplements thereto as they reasonably
may request. The Company will pay the expenses of printing or other production
of all documents relating to the offering of the Notes and will
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reimburse the Initial Purchaser for payment of the required PORTAL (as defined
below) filing fee.
(b) The Company will not amend or supplement the Final Memorandum prior
to the completion of the distribution of the Notes by the Initial Purchaser
without its prior written consent, which consent will not be unreasonably
withheld or delayed.
(c) At any time prior to the completion of the distribution of the
Notes by the Initial Purchaser, if any event occurs as a result of which the
Final Memorandum, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, or if it should be necessary to amend or supplement the
Final Memorandum to comply with applicable law, the Company will promptly (i)
notify the Initial Purchaser of the same; (ii) subject to the requirements of
paragraph (b) of this Section 5, prepare and provide to the Initial Purchaser
pursuant to paragraph (a) of this Section 5, an amendment or supplement that
will correct such statement or omission or effect such compliance; and (iii)
supply any supplemented or amended Final Memorandum to the Initial Purchaser and
Counsel for the Initial Purchaser, without charge in such quantities as may be
reasonably requested.
(d) The Company will (i) qualify the Notes and the Note Guarantees for
sale by the Initial Purchaser under the laws of such jurisdictions as the
Initial Purchaser may designate and (ii) will maintain such qualifications for
so long as required for the sale of the Notes by the Initial Purchaser;
provided, that the Company will not be required to qualify to do business in any
jurisdiction in which it is not then so qualified, to file any general consent
to service of process or to take any other action which would subject it to
general service of process or to taxation in any such jurisdiction where it is
not then so subject. The Company will promptly advise the Initial Purchaser of
the receipt by the Company of any notification with respect to the suspension of
the qualification of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(e) At any time prior to the completion of the distribution of the
Notes by the Initial Purchaser, the Company, whenever it, the Guarantors or any
of their subsidiaries publishes or makes available to the public (by filing with
any regulatory authority or securities exchange or by publishing a press release
or otherwise) any information that would reasonably be expected to be material
in the context of the issuance of the Notes under this Agreement, shall promptly
notify the Initial Purchaser as to the nature of such information or event. The
Company will likewise notify the Initial Purchaser of (i) any decrease in the
rating of the Notes or any other debt securities of the Company by any
nationally recognized statistical rating organization (as defined in Rule
436(g)(2) under the Securities Act) or (ii) any notice or public announcement
given of any intended or potential decrease in any such rating or that any such
securities rating agency has under surveillance or review, with possible
negative implications, its rating of the Notes or such other debt securities, as
soon as is reasonably practicable after the Company becomes aware of any such
decrease, notice or public announcement. For so long as the Notes are
outstanding, the Company will also deliver to the Initial Purchaser, as soon as
available and without request, copies of its yearly and quarterly filings under
the Securities Exchange Act of 1934 (the "Exchange Act").
11
(f) The Company will not, and will not permit any of its Affiliates to,
resell any of the Notes that have been acquired by any of them, other than
pursuant to an effective registration statement under the Securities Act or in
accordance with Rule 144 under the Securities Act.
(g) Except as contemplated in the Registration Rights Agreement, none
of the Company or any of its Affiliates, nor any person acting on its or their
behalf (other than the Initial Purchaser or any of its Affiliates, as to whom
the Company makes no covenant) will, directly or indirectly, make offers or
sales of any security, or solicit offers to buy any security, under
circumstances that would require the registration of the Notes under the
Securities Act.
(h) None of the Company or any of its Affiliates, nor any person acting
on its or their behalf (other than the Initial Purchaser or any of its
Affiliates, as to whom the Company makes no covenant), will engage in any form
of general solicitation or general advertising (within the meaning of Regulation
D) in connection with any offer or sale of the Notes.
(i) So long as any of the Notes are "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Act, at any time that the Company
is not then subject to Section 12 or 15(d) of the Exchange Act, the Company will
provide at its expense to each holder of the Notes and to each prospective
purchaser (as designated by such holder) of the Notes, upon the request of such
holder or prospective purchaser any information required to be provided by Rule
144A(d)(4) under the Securities Act. (This covenant is intended to be for the
benefit of the holders, and the prospective purchasers designated by such
holders from time to time, of the Notes.)
(j) The Company will use its best efforts to cause the Notes 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 Notes Dealers, Inc. relating to trading
in PORTAL and to be eligible for clearance and settlement through DTC.
(k) The Company will apply the net proceeds from the sale of the Notes
as set forth under "Use of Proceeds" in the Final Memorandum.
(l) Until completion of the distribution, neither the Company nor any
of its Affiliates will take, directly or indirectly, any action designed to
cause or result in, or which has constituted or which could reasonably be
expected to cause or result in, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Notes.
(m) For so long as any Notes are outstanding, each of the Company, the
Guarantors and their subsidiaries will conduct its operations in a manner that
will not subject the Company, the Guarantors or any such subsidiary to
registration as an investment company under the Investment Company Act.
(n) Neither the Company nor any of its Affiliates, nor any person
acting on its or their behalf (other than the Initial Purchaser or its agents,
as to which the Company makes no covenant) will engage in any directed selling
efforts with respect to the Notes, and each of them will comply with the
offering restrictions requirement of Regulation S. Terms used in this paragraph
have the meanings given them by Regulation S.
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(o) The Company shall cause each of its direct or indirect subsidiaries
listed in Schedule 4, which the Company and the Guarantors represent to be all
of the Company's direct and indirect domestic subsidiaries existing as of the
date of this Agreement that were reported as discontinued operations in the
Company's audited financial statements for the year ended and as of December 31,
2002, to become Subsidiary Guarantors (as defined in the Indenture) by execution
and delivery to the Trustee of a supplemental indenture pursuant to which such
subsidiary shall assume all obligations of the Subsidiary Guarantors under the
Indenture, the Notes and the Registration Rights Agreement, such supplemental
indenture to be executed and delivered by the Company and the Subsidiary
Guarantors no later than September 30, 2003 (as to each such subsidiary, to the
extent such subsidiary has not been sold by the Company prior to such date).
(p) The Company shall cause Xxxxxxx Acquisition Corp, a Delaware
corporation and Evi-Paq Acquisition Corp, a Delaware corporation to become as
Subsidiary Guarantors (as defined in the Indenture) by execution and delivery to
the Trustee of a supplemental indenture pursuant to which such subsidiary shall
assume all obligations of the Subsidiary Guarantors under the Indenture, the
Notes and the Registration Rights Agreement, such supplemental indenture to be
executed and delivered by the Company and the Subsidiary Guarantors within 30
days of the date of this Agreement (except to the extent such subsidiary is
dissolved prior to the expiration of such 30-day period).
(q) Each Note will bear a legend substantially to the following effect
until such legend shall no longer be necessary or advisable because the Notes
are no longer subject to the restrictions on transfer described therein:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER, OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF, THE SECURITIES ACT, IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER JURISDICTION AND IN ACCORDANCE WITH THE TRANSFER RESTRICTIONS
CONTAINED IN THE INDENTURE UNDER WHICH THIS NOTE WAS ISSUED.
6. Expenses. The Company will pay all costs and expenses incident to
the performance of the obligations of the Company under this Agreement, whether
or not the Offering is consummated or this Agreement is terminated pursuant to
Section 10 hereof, including all costs and expenses incident to (i) the printing
or other production of documents with respect to the Offering, including any
costs of printing the Preliminary Memorandum and Final Memorandum and any
amendment or supplement thereto, this Agreement and any blue sky memoranda; (ii)
all arrangements relating to the delivery to the Initial Purchaser of copies of
the foregoing documents; (iii) the fees and disbursements of the counsel, the
accountants, the Trustee and any other experts or advisors retained by the
Company; (iv) preparation, issuance and delivery to the Initial Purchaser of any
certificates evidencing the Notes; (v) the qualification of the Notes under
state securities and blue sky laws, and the maintenance of such qualifications,
including filing fees; (vi) the fees and expenses, if any, incurred in
connection with the
13
admission of the Notes for trading in the PORTAL market; and (vii) the fees of
any agency that rates the Notes. Whether or not the Offering is consummated or
this Agreement is terminated pursuant to Section 10 hereof, the Initial
Purchaser will pay all of its own costs and expenses (including road show and
counsel fees and disbursements) that shall have been incurred by it in
connection with the proposed purchase and resale of the Notes. The Company shall
not in any event be liable to the Initial Purchaser for the loss of anticipated
profits from the transactions covered by this Agreement.
7. Conditions to the Initial Purchaser's Obligations. The obligations
of the Initial Purchaser to purchase and pay for the Notes shall be subject to
the accuracy of the representations and warranties of the Company and the
Guarantors in Section 2 hereof, in each case as of the date hereof and as of the
Closing Date, as if made on and as of the Closing Date, to the accuracy of the
statements of the officers of the Company and the Guarantors made pursuant to
the provisions hereof, to the performance by the Company and the Guarantors of
their covenants and agreements hereunder and to the following additional
conditions:
(a) The Initial Purchaser shall have received an opinion, dated the
Closing Date, of Xxxx Xxxxxxx, P.C., counsel for the Company and the Guarantors,
in form and substance reasonably satisfactory to the Initial Purchaser, to the
effect set forth in Exhibit A hereto.
(b) The Initial Purchaser shall have received a letter, dated the
Closing Date, of Xxxx Xxxxx, in-house counsel for the Company and the
Guarantors, in form and substance reasonably satisfactory to the Initial
Purchaser, to the effect set forth in Exhibit B hereto.
(c) The Initial Purchaser shall have received an opinion, dated the
Closing Date, of Counsel for the Initial Purchaser, with respect to the issuance
and sale of the Notes and such other related matters as the Initial Purchaser
may reasonably require, to the effect set forth in Exhibit B hereto, and the
Company shall have furnished to such counsel such documents as it may reasonably
request for the purpose of enabling it to pass upon such matters.
(d) The Initial Purchaser shall have received a "comfort letter" from
PricewaterhouseCooper LLP, the independent public accountant for the Company and
the Guarantors, dated as of the date hereof, addressed to the Initial Purchaser
and in form and substance reasonably satisfactory to the Initial Purchaser and
Counsel for the Initial Purchaser. In addition, the Initial Purchaser shall have
received a "bring-down comfort letter" from PricewaterhouseCooper LLP, dated as
of the Closing Date, addressed to the Initial Purchaser and in form and
substance satisfactory to the Initial Purchaser and Counsel for the Initial
Purchaser. References to the Final Memorandum in this paragraph (d) with respect
to either letter referred to above shall include any amendment or supplement
thereto at the date of such letter.
(e) The Bank Consent shall have been executed and delivered by the
parties under the Existing Credit Agreement and either the aggregate commitment
of the lenders under the Existing Credit Agreement shall have been reduced to
$60 million or the Existing Credit Agreement shall have been terminated.
14
(f) The Initial Purchaser shall have received a certificate, dated the
Closing Date, of the Chief Operating Officer and Chief Financial Officer and the
Treasurer of the Company and of a Vice President of each Guarantor to the effect
that:
(i) the representations and warranties of the Company and the
Guarantors in this Agreement are true and correct as if made on and as
of the Closing Date; the Final Memorandum, as amended or supplemented
as of the Closing Date, does 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 light of the circumstances under which
they were made, not misleading; and the Company and the Guarantors have
performed all covenants and agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to the Closing
Date; and
(ii) none of the Company or any of its subsidiaries has
sustained any loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding that is material to the Company, the
Guarantors and their subsidiaries, and there has not been any material
adverse change in the business, operations, properties, assets,
liabilities, net worth or condition (financial or otherwise) of the
Company and its subsidiaries, taken as a whole, except in each case as
described in or contemplated by the Final Memorandum (exclusive of any
amendment or supplement thereto).
(g) The Notes shall have received initial ratings of not less than B+
by Standard & Poor's and B1 by Xxxxx'x, and, subsequent to the Execution Date,
there shall not have been any decrease in the rating of the Notes by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g)(2) under the Securities Act) or any notice or public announcement
given by any such organization of any intended or potential decrease in any such
rating or that any such securities rating agency has under surveillance or
review, with possible negative implications, its rating of the Notes.
(h) The Registration Rights Agreement shall have been executed and
delivered by the Company and the Guarantors.
(i) On or before the Closing Date, the Initial Purchaser and Counsel
for the Initial Purchaser shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company and the Guarantors customary for a transaction of this type.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory to the Initial Purchaser and Counsel for the Initial
Purchaser. The Company shall furnish to the Initial Purchaser such conformed
copies of such opinions, certificates, letters and documents in such quantities
as the Initial Purchaser and Counsel for the Initial Purchaser shall reasonably
request.
8. Indemnification and Contribution. (a) The Company and the
Guarantors, jointly and severally, agree to indemnify and hold harmless the
Initial Purchaser and each person, if any,
15
who controls (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) the Initial Purchaser against any losses, claims,
damages or liabilities, joint or several, to which the Initial Purchaser or such
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the Preliminary Memorandum or
the Final Memorandum or any amendment or supplement thereto; or (ii) the
omission or alleged omission to state in the Preliminary Memorandum or the Final
Memorandum or any amendment or supplement thereto, a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and will reimburse, as incurred, the Initial Purchaser and each such controlling
person for any legal or other expenses reasonably incurred by the Initial
Purchaser or such controlling person in connection with investigating, defending
against or appearing as a third-party witness in connection with any such loss,
claim, damage, liability or action; provided, that the Company and the
Guarantors will 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 any untrue statement
or alleged untrue statement or omission or alleged omission made in any
Preliminary Memorandum, the Final Memorandum or any amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by the Initial Purchaser specifically for use therein as set
forth in Section 11 hereof. The Company and the Guarantors will not, without the
prior written consent of the Initial Purchaser, settle or compromise or consent
to the entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not the Initial Purchaser or any person who controls any such Initial
Purchaser within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act is a party to such claim, action, suit or proceeding) unless such
settlement, compromise or consent includes an unconditional release of the
Initial Purchaser and such controlling persons from all liability arising out of
such claim, action, suit or proceeding.
(b) The Initial Purchaser will indemnify and hold harmless the Company
and the Guarantors, their respective directors, officers, and each person, if
any, who controls any of the Company and the Guarantors within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
losses, claims, damages or liabilities to which the Company, the Guarantors, any
such directors or officers of the Company and the Guarantors or any such
controlling person of the Company and the Guarantors may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Preliminary Memorandum or the Final Memorandum or any amendment or
supplement thereto, or (ii) the omission or the alleged omission to state
therein a material fact required to be stated in the Preliminary Memorandum or
the Final Memorandum or any amendment or supplement thereto, 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 reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Initial Purchaser
specifically for use therein as set forth in Section 11 hereof, and subject to
the limitation set forth immediately preceding this clause, will reimburse as
incurred, any legal or other expenses reasonably incurred by the Company or the
Guarantors or any such directors or officers or such controlling person in
connection with investigating, defending against or appearing as a third
16
party witness in connection with, any such loss, claim, damage, liability or
action in respect thereof. The Initial Purchaser will not, without the prior
written consent of the Company and the Guarantors, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action,
suit or proceeding in respect of which indemnification may be sought hereunder
(whether or not the Company or the Guarantor or any person who controls any of
the Company or the Guarantors within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act is a party to such claim, action, suit or
proceeding) unless such settlement, compromise or consent includes an
unconditional release of all of the Company and the Guarantors and such
controlling persons from all liability arising out of such claim, action, suit
or proceeding.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section 8, notify such indemnifying party of the commencement thereof; but the
failure so to notify such indemnifying party will not relieve such indemnifying
party from any liability which it may have to such indemnified party otherwise
than under this Section 8. In case any such action is brought against any
indemnified party, and such indemnified party notifies the relevant indemnifying
party of the commencement thereof, such indemnifying party will be entitled to
participate therein and, to the extent that it may wish, to assume the defense
thereof, jointly with any other indemnifying party similarly notified, with
counsel satisfactory to such indemnified party; provided, that if the defendants
in any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded, based on advice of
outside counsel, that there may be one or more legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from an indemnifying party to an indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, such indemnifying party will not be
liable to such indemnified party under this Section 8 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i) such
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence or (ii) such indemnifying party does not
promptly retain counsel satisfactory to such indemnified party or (iii) such
indemnifying party has authorized the employment of counsel for such indemnified
party at the expense of the indemnifying party. After such notice from an
indemnifying party to an indemnified party, such indemnifying party will not be
liable for the costs and expenses of any settlement of such action effected by
such indemnified party without the consent of such indemnifying party.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 8 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) ("Losses"), the
Company and the Guarantors, on the one hand, and the Initial Purchaser, on the
other, in order to provide for just and equitable contribution, agree to
contribute to the amount paid or payable by such indemnified party as a result
of such Losses to which the
17
Company and the Guarantors, on the one hand, and the Initial Purchaser, on the
other, may be subject, in such proportion as is appropriate to reflect (i) the
relative benefits received by the Company and the Guarantors, on the one hand,
and the Initial Purchaser, on the other, from the offering of the Notes or (ii)
if the allocation provided by the foregoing clause (i) is unavailable for any
reason, not only such relative benefits but also the relative fault of the
Company and the Guarantors, on the one hand, and the Initial Purchaser, on the
other, in connection with the statements or omissions or alleged statements or
omissions that resulted in such Losses. The relative benefits received by the
Company and the Guarantors on the one hand and the Initial Purchaser on the
other shall be deemed to be in the same proportion as the net proceeds from the
offering received by the Company and the Guarantors bear to the total
underwriting discounts and commissions received by the Initial Purchaser from
the Company in connection with the purchase of the Notes hereunder. The relative
fault of the parties 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, the Guarantors or the Initial Purchaser, the parties'
intent, relative knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company, the Guarantors and the Initial
Purchaser agree that it would not be just and equitable if contribution were
determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to above.
Notwithstanding any other provision of this paragraph (d), the Initial Purchaser
shall not be obligated to make contributions hereunder that in the aggregate
exceed the total underwriting discounts and commissions received by the Initial
Purchaser from the Company in connection with the purchase of the Notes
hereunder, and 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. For purposes of this paragraph (d), each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Initial Purchaser, and each director or officer of the
Company or the Guarantors and each person, if any, who controls the Company or
the Guarantors within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, shall have the same rights to contribution as the
Company or the Guarantors, respectively.
(e) The obligations of the Company and the Guarantors under this
Section 8 shall be in addition to any liability that the Company and the
Guarantors may otherwise have and the obligations of the Initial Purchaser under
this Section 8 shall be in addition to any liability that the Initial Purchaser
may otherwise have.
18
9. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company and the Guarantors,
their respective officers, and the Initial Purchaser set forth in this Agreement
or made by or on behalf of it pursuant to this Agreement shall remain in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Company, the Guarantors, any of their respective officers, directors or
subsidiaries or any controlling person referred to in Section 8 hereof or the
Initial Purchaser and (ii) delivery of and payment for the Notes. The respective
agreements, covenants, indemnities and other statements set forth in Sections 6
and 8 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
10. Termination. (a) This Agreement may be terminated in the discretion
of the Initial Purchaser by notice to the Company given at any time at or prior
to the Closing Date in the event that the Company or the Guarantors shall have
failed, refused or if unable as of Closing to perform all obligations and
satisfy all conditions required on its part to be performed or satisfied
hereunder at or prior thereto or if, at or prior to the Closing Date (i) trading
in the Company's common stock shall have been suspended by the Commission or
trading in securities generally on the New York Stock Exchange or the Nasdaq
National Market shall have been suspended or minimum or maximum prices shall
have been established on any such exchange or market; (ii) a banking moratorium
shall have been declared by New York or United States authorities or there has
been a material disruption in securities settlement, payment or clearance
services in the United States; or (iii) there shall have been (A) an outbreak or
escalation of hostilities between the United States and any foreign power, (B)
an outbreak or escalation of any other insurrection or armed conflict involving
the United States or (C) any other calamity or crisis or material adverse change
in general economic, political or financial conditions which has an effect on
the U.S. financial markets, in each case, which, in the sole judgment of the
Initial Purchaser, makes it impracticable or inadvisable to proceed with the
offer, sale and delivery of the Notes as contemplated by the Final Memorandum.
(b) Termination of this Agreement pursuant to this Section 10 shall be
without liability of any party to any other party except as provided in Section
8 hereof.
11. Information Supplied by Initial Purchaser. The statements set forth
in (i) the second and third sentences of the second paragraph and (ii) the
seventh paragraph, in each case, under the heading "Plan of Distribution" in the
Preliminary Memorandum and the Final Memorandum, to the extent such statements
relate to the Initial Purchaser, constitute the only information furnished by
the Initial Purchaser to the Company for the purposes of Sections 2(a) and 8
hereof.
12. Notices. All communications hereunder shall be in writing and, if
sent to any of the Initial Purchaser, shall be delivered or sent by mail, telex
or facsimile transmission and confirmed in writing to Wachovia Capital Markets,
LLC, One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000, Attention: High Yield Origination, and, if sent to the Company or
the Guarantors, shall be delivered or sent by mail, telex or facsimile
transmission and confirmed in writing to the Company at Armor Holdings, Inc., at
0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000, Attn: Chief
Financial Officer, and copied to Xxxx Xxxxxxx, P.C., at 0000 Xxxxxx xx xxx
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxx X. Xxxxxxxx.
19
13. Successors. This Agreement shall inure to the benefit of and shall be
binding upon the Initial Purchaser, the Company and the Guarantors and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of the Initial Purchaser, the Company and the Guarantors and their
respective successors and legal representatives, and for the benefit of no other
person, except that (i) the indemnities of the Company and the Guarantors
contained in Section 8 of this Agreement shall also be for the benefit of any
person or persons who control the Initial Purchaser within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Initial Purchaser contained in Section 8 of this Agreement
shall also be for the benefit of the directors and officers of the Company and
the Guarantors, and any person or persons who control the Company or the
Guarantors within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act.
14. Applicable Law. The validity and interpretation of this Agreement,
and the terms and conditions set forth herein, shall be governed by and
construed in accordance with the laws of the State of New York.
15. Consent to Jurisdiction and Service of Process. (a) All judicial
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State and County of New
York, which jurisdiction is non-exclusive.
(b) Each party agrees that any service of process or other legal
summons in connection with any proceeding may be served on it by mailing a copy
thereof by registered mail, or a form of mail substantially equivalent thereto,
postage prepaid, addressed to the served party at its address as provided for in
Section 12 hereof. Nothing in this Section shall affect the right of the parties
to serve process in any other manner permitted by law.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Remainder of page intentionally left blank.]
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If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company, the
Guarantors and the Initial Purchaser.
Very truly yours,
ARMOR HOLDINGS, INC.
By:
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Operating Officer,
Chief Financial Officer
and Secretary
S-1
SUBSIDIARY GUARANTORS
911EP, INC.,
a Delaware corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
AHI PROPERTIES I, INC.,
a Delaware corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
ARMOR BRANDS, INC.,
a Delaware corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
ARMOR HOLDINGS FORENSICS, INC.,
a Delaware corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
ARMOR HOLDINGS GP, LLC,
a Delaware company
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
ARMOR HOLDINGS LP, LLC,
a Delaware company
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
ARMOR HOLDINGS MOBILE SECURITY, L.L.C.,
a Delaware company
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
ARMOR HOLDINGS PAYROLL SERVICES, LLC,
a Delaware company
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Manager
ARMOR HOLDINGS PRODUCTS, INC.,
a Delaware corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
ARMOR HOLDINGS PROPERTIES, INC.,
a Delaware corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
ARMOR SAFETY PRODUCTS COMPANY,
a Delaware corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
B-SQUARE, INC.,
a Texas corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
BREAK-FREE ARMOR CORP.,
a Delaware corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
BREAK-FREE, INC.,
a Delaware corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
CASCO INTERNATIONAL, INC.,
a New Hampshire corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
DEFENSE TECHNOLOGY CORPORATION OF AMERICA,
a Delaware corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
INDENTICATOR, INC.,
a Delaware corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
MONADNOCK LIFETIME PRODUCTS, INC. (DE),
a Delaware corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
MONADNOCK LIFETIME PRODUCTS, INC. (NH),
a New Hampshire corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
MONADNOCK POLICE TRAINING COUNCIL, INC.,
a New Hampshire corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
NAP PROPERTIES, LTD.,
a California limited partnership
By: NAP PROPERTY MANAGERS, LLC,
its General Partner
By: ARMOR HOLDINGS PROPERTIES, INC.,
its Managing Member
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
NAP PROPERTY MANAGERS, LLC,
a California company
By: ARMOR HOLDINGS PROPERTIES, INC.,
its Managing Member
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
X'XXXX-XXXX & XXXXXXXXXX ARMORING COMPANY, L.L.C.
a Delaware company
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
PRO-TECH ARMORED PRODUCTS OF MASSACHUSETTS, INC.,
a Massachusetts corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
RAMTECH DEVELOPMENT CORP.,
a Delaware corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
SAFARI LAND LTD, INC.,
a California corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
SAFARILAND GOVERNMENT SALES, INC.,
a California corporation
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
SPEEDFEED ACQUISITION CORP.,
a Delaware corporation
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
THE O'GARA COMPANY,
an Ohio company
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above.
WACHOVIA CAPITAL MARKETS, LLC
By:__________________________
Name:
Title
