REPRESENTATIONS AND WARRANTIES OF CHAMPION. Champion hereby represents and warrants to Fletcher on each Closing Date, as follows: (▇) Champion has been duly incorporated and is validly existing in good standing under the laws of Michigan or, after the Initial Closing Date, if another entity has succeeded Champion in accordance with the terms hereof, under the laws of one of the states of the United States. (b) The execution, delivery and performance of this Agreement, the Certificate of Rights and Preferences and the Warrant (including the authorization, sale, issuance and delivery of the Investment Securities) have been duly authorized by all requisite corporate action and no further consent or authorization of Champion, its Board of Directors or its shareholders is required, except as otherwise contemplated by this Agreement. (c) This Agreement has been duly executed and delivered by Champion and, when this Agreement is duly authorized, executed and delivered by Fletcher, will be a valid and binding agreement enforceable a▇▇▇▇▇▇ ▇hampion in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity. The issuance of the Investment Securities are not and will not be subject to any preemptive right or rights of first refusal that have not been properly waived or complied with. (d) Champion has full corporate power and authority necessary to (i) own and operate its properties and assets, execute and deliver this Agreement, (ii) perform its obligations hereunder and under the Certificate of Rights and Preferences and the Warrant (including, but not limited to, the issuance of the Investment Securities) and (iii) carry on its business as presently conducted and as presently proposed to be conducted. Champion and its subsidiaries are duly qualified and are authorized to do business and are in good standing as foreign corporations in all jurisdictions in which the nature of their activities and of their properties (both owned and leased) makes such qualification necessary, except for those jurisdictions in which failure to do so would not have a material adverse effect on the business affairs, assets, results of operations or prospects of Champion and its subsidiaries, taken as a whole. Set forth on Schedule 4(d) attached hereto, is a complete list of all subsidiaries of Champion as of the date hereof. (e) No consent, approval, authorization or order of any court, governmental agency or other body is required for execution and delivery by Champion of this Agreement or the performance by Champion of any of its obligations hereunder and under the Certificate of Rights and Preferences or the Warrant other than such as may already have been received. (f) Neither the execution and delivery by Champion of this Agreement nor the performance by Champion of any of its obligations hereunder and under the Certificate of Rights and Preferences or the Warrant: (i) violates, conflicts with, results in a breach of, or constitutes a default (or an event which with the giving of notice or the lapse of time or both would be reasonably likely to constitute a default) or creates any rights in respect of any person under (A) the certificates of incorporation or by-laws of Champion or any of its subsidiaries, (B) any decree, judgment, order, or determination of any court, governmental agency or body, or arbitrator having jurisdiction over Champion or any of its subsidiaries or any of their respective properties or assets or any material law, treaty, rule or regulation, (C) the terms of any bond, debenture, note, indenture, credit agreement or any other evidence of indebtedness, or any material agreement, stock option or other similar plan, lease, mortgage, deed of trust or other instrument to which Champion or any of its subsidiaries is a party, by which Champion or any of its subsidiaries is bound, or to which any of the properties or assets of Champion or any of its subsidiaries is subject, (D) the terms of any "lock-up" or similar provision of any underwriting or similar agreement to which Champion or any of its subsidiaries is a party, (E) any material rule or regulation of the NASD or the New York Stock Exchange or any rule or regulation of the markets where Champion's securities are publicly traded or quoted applicable to Champion or the transactions contemplated hereby or (F) the Rights Agreement by and between Champion and Harris Trust and Savings Bank, dated January 9, 1996, ▇▇▇▇pt for such violations, conflicts, breaches or defaults referred to in clauses (B), (C), (D) and (E) that would not affect Champion's ability to execute and deliver or to perform any of its obligations under this Agreement, the Certificate of Rights and Preferences or the Warrant; or (ii) results in the creation or imposition of any lien, charge or encumbrance upon any Investment Securities or any material lien, charge or encumbrance upon any of the properties or assets of Champion or any of its subsidiaries. (g) Champion has validly reserved for issuance to Fletcher the Initial Preferred Shares, any Additional Preferred ▇▇▇▇▇s and the Warrant under this Agreement and that number of shares of Common Stock equal to the Registrable Number (determined as if the Required Registration Statement were filed as of the date this representation is made). When issued to Fletcher against payment therefor, each Investment Security: (i) will have been duly and validly authorized, duly and validly issued, fully paid and non-assessable; (ii) will be free and clear of any security interests, liens, claims or other encumbrances; and (iii) will not have been issued or sold in violation of any preemptive or other similar rights of the holders of any securities of Champion. (h) As of the date hereof, Champion satisfies all maintenance criteria of the New York Stock Exchange and, after the Closing Date, Champion satisfies all maintenance criteria for the New York Stock Exchange, Nasdaq National Market, or American Stock Exchange, or has a valid exemption from such criteria of which it has previously notified Fletcher in writing. To the best knowledge of Champion, after ▇▇▇ ▇▇▇uiry, no present set of facts or circumstances will (with the passage of time or the giving of notice or both or neither) cause any of the Common Stock to be delisted from the New York Stock Exchange. Within five (5) Business Days after and excluding the Initial Closing Date, all of the Covered Securities (as defined in Section 5(b)) will, when issued, be duly listed and admitted for trading on all of the markets where shares of Common Stock are traded, including the New York Stock Exchange. At each Subsequent Closing Date, all of the Covered Securities (as defined in Section 5(b)) will, when issued, be duly listed and admitted for trading on all of the markets where shares of Common Stock are traded, including one of the following: (i) the New York Stock Exchange, (ii) the Nasdaq National Market, or (iii) the American Stock Exchange. (i) There is no pending or, to the best knowledge of Champion, threatened action, suit, proceeding or investigation before any court, governmental agency or body, or arbitrator having jurisdiction over Champion or any of its affiliates that would materially affect the execution by Champion of, or the performance by Champion of its obligations under, this Agreement, the Certificate of Rights and Preferences or the Warrant. (j) Since March 31, 1998, none of Champion's filings with the Uni▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ Exchange Commission (the "SEC") under the Securities Act of 1933, as amended (the "Securities Act") or under Section 13(a) or 15(d) of the Exchange Act (each an "SEC Filing") contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading. Since March 31, 1998, there has not been any pending or, to the best knowledge of Champion, threatened action, suit, proceeding or investigation before any court, governmental agency or body, or arbitrator having jurisdiction over Champion or any of its affiliates that could cause a material adverse change in the condition, financial or otherwise, or in the business affairs, assets, results of operations or prospects of Champion, whether or not arising in the ordinary course of business, except as disclosed in Champion's SEC Filings on or before the date immediately prior to and excluding the date hereof. Since the date of Champion's most recent SEC Filing, there has not been any material adverse change in the condition, financial or otherwise, or in the business affairs, assets, results of operations or prospects of Champion, whether or not arising in the ordinary course of business. Except as set forth on Schedule 4(p) hereto, Champion's SEC Filings made before and excluding the date hereof fully disclose all material information concerning Champion and its subsidiaries. (k) The offer and sale of the Investment Securities to Fletcher pursuant to this Agreement will, subject to complian▇▇ ▇▇ ▇▇etcher with the applicable representations and warranties c▇▇▇▇▇▇▇▇ in Section 8 hereof and with the applicable covenants and agreements contained in Section 12 hereof, be made in accordance with an exemption from the registration requirements of the Securities Act and any applicable state law. Neither Champion nor any agent on its behalf has solicited or will solicit any offers to sell or has offered to sell or will offer to sell all or any part of the Series C Preferred Shares or the Warrant to any person or persons so as to bring the sale of such Series C Preferred Shares or the Warrant by Champion within the registration provisions of the Securities Act. (l) Immediately prior to the Initial Closing Date, the authorized capital stock of Champion consists of one hundred twenty million (120,000,000) shares of Common Stock, par value one dollar ($1.00), and five million (5,000,000) shares of preferred stock, no par value ("Preferred Stock") of which seven hundred and fifty thousand (750,000) are designated Series A Preferred Stock and twenty thousand (20,000) are designated Series B-1 Preferred Stock. Immediately prior to the Initial Closing Date, (A) forty-eight million five hundred sixty-five thousand two hundred eight (48,565,208) shares of Common Stock, no shares of Series A Preferred Stock and twenty-thousand (20,000) shares of Series B-1 Preferred Stock, were issued and outstanding, (B) eight million eighty-three thousand eight hundred thirty-one (8,083,831) shares of Common Stock, seven hundred and fifty thousand (750,000) shares of Series A Preferred Stock and twelve thousand (12,000) shares of Series B Preferred Stock are currently reserved and subject to issuance upon the exercise of outstanding stock options, warrants or other convertible rights, (C) no shares of Common Stock are held in the treasury of Champion, and (D) up to three hundred thirty-four thousand one hundred forty-seven (334,147) additional shares of Common Stock may be issued under the Champion Enterprises, Inc. Savings Plan. All of the outstanding shares of Preferred Stock and Common Stock are, and all shares of capital stock which may be issued pursuant to stock options, warrants or other convertible rights will be, when issued and paid for in accordance with the respective terms thereof, duly authorized, validly issued, fully paid and non-assessable, free of any preemptive rights in respect thereof and issued in material compliance with all applicable state and federal laws concerning issuance of securities. As of the date hereof, except as set forth above, and except for shares of Common Stock or other securities issued upon conversion, exchange, exercise or purchase associated with the securities, options, warrants, rights and other instruments referenced above, no shares of capital stock or other voting securities of Champion were outstanding, no equity equivalents, interests in the ownership or earnings of Champion or other similar rights were outstanding, and there were no existing options, warrants, calls, subscriptions or other rights or agreements or commitments relating to the capital stock of Champion or any of its subsidiaries or obligating Champion or any of its subsidiaries to issue, transfer, sell or redeem any shares of capital stock, or other equity interest in, Champion or any of its subsidiaries or obligating Champion or any of its subsidiaries to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement or commitment. Attached hereto as Schedule 4(l) is a true and correct list as of the date of this Agreement of all outstanding options, warrants, calls, subscriptions and other rights or agreements or commitments relating to the issuance of additional shares of capital stock of Champion and with respect to each a description of the number and class of securities and the exercise price thereof.
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REPRESENTATIONS AND WARRANTIES OF CHAMPION. Champion hereby represents and warrants to Fletcher on Flet▇▇▇▇ ▇▇ each Closing Date, as follows:
(▇a) Champion has been duly incorporated and is validly existing in good standing under the laws of Michigan or, after the Initial Closing Date, if another entity has succeeded Champion in accordance with the terms hereof, under the laws of one of the states of the United States.
(b) The execution, delivery and performance of this Agreement, the Certificate of Rights and Preferences and the Warrant Subsequent Certificates of Rights and Preferences (including the authorization, sale, issuance and delivery of the Investment Securities) have been duly authorized by all requisite corporate action and no further consent or authorization of Champion, its Board of Directors or its shareholders is required, except as otherwise contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by Champion and, when this Agreement is duly authorized, executed and delivered by FletcherFlet▇▇▇▇, will ▇▇ll be a valid and binding agreement enforceable a▇▇▇▇▇▇ ▇hampion against Champion in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights generally and to general principles of equity. The issuance of the Investment Securities are not and will not be subject to any preemptive right or rights of first refusal that have not been properly waived or complied with.
(d) Champion has full corporate power and authority necessary to (i) own and operate its properties and assets, execute and deliver this Agreement, (ii) perform its obligations hereunder and under the Certificate of Rights and Preferences or Subsequent Certificates of Rights and the Warrant Preferences (including, but not limited to, the issuance of the Investment Securities) and (iii) carry on its business as presently conducted and as presently proposed to be conducted. Champion and its subsidiaries are duly qualified and are authorized to do business and are in good standing as foreign corporations in all jurisdictions in which the nature of their activities and of their properties (both owned and leased) makes such qualification necessary, except for those jurisdictions in which failure to do so would not have a material adverse effect on the business affairs, assets, results of operations or prospects of Champion and its subsidiaries, taken as a whole. Set forth on Schedule 4(d) attached hereto, is a complete list of all subsidiaries of Champion as of the date hereof.
(e) No consent, approval, authorization or order of any court, governmental agency or other body is required for execution and delivery by Champion of this Agreement or the performance by Champion of any of its obligations hereunder and under the Certificate of Rights and Preferences or the Warrant other than such as may already have been received.
(f) Neither the execution and delivery by Champion of this Agreement nor the performance by Champion of any of its obligations hereunder and under the Certificate of Rights and Preferences or the Warrant:
(i) violates, conflicts with, results in a breach of, or constitutes a default (or an event which with the giving of notice or the lapse of time or both would be reasonably likely to constitute a default) or creates any rights in respect of any person under (A) the certificates of incorporation or by-laws of Champion or any of its subsidiaries, (B) any decree, judgment, order, or determination of any court, governmental agency or body, or arbitrator having jurisdiction over Champion or any of its subsidiaries or any of their respective properties or assets or any material law, treaty, rule or regulation, (C) the terms of any bond, debenture, note, indenture, credit agreement or any other evidence of indebtedness, or any material agreement, stock option or other similar plan, lease, mortgage, deed of trust or other instrument to which Champion or any of its subsidiaries is a party, by which Champion or any of its subsidiaries is bound, or to which any of the properties or assets of Champion or any of its subsidiaries is subject, (D) the terms of any "lock-up" or similar provision of any underwriting or similar agreement to which Champion or any of its subsidiaries is a party, (E) any material rule or regulation of the NASD or the New York Stock Exchange or any rule or regulation of the markets where Champion's securities are publicly traded or quoted applicable to Champion or the transactions contemplated hereby or (F) the Rights Agreement by and between Champion and Harris Trust and Savings Bank, dated January 9, 1996, ▇▇▇▇pt for such violations, conflicts, breaches or defaults referred to in clauses (B), (C), (D) and (E) that would not affect Champion's ability to execute and deliver or to perform any of its obligations under this Agreement, the Certificate of Rights and Preferences or the Warrant; or
(ii) results in the creation or imposition of any lien, charge or encumbrance upon any Investment Securities or any material lien, charge or encumbrance upon any of the properties or assets of Champion or any of its subsidiaries.
(g) Champion has validly reserved for issuance to Fletcher the Initial Preferred Shares, any Additional Preferred ▇▇▇▇▇s and the Warrant under this Agreement and that number of shares of Common Stock equal to the Registrable Number (determined as if the Required Registration Statement were filed as of the date this representation is made). When issued to Fletcher against payment therefor, each Investment Security:
(i) will have been duly and validly authorized, duly and validly issued, fully paid and non-assessable;
(ii) will be free and clear of any security interests, liens, claims or other encumbrances; and
(iii) will not have been issued or sold in violation of any preemptive or other similar rights of the holders of any securities of Champion.
(h) As of the date hereof, Champion satisfies all maintenance criteria of the New York Stock Exchange and, after the Closing Date, Champion satisfies all maintenance criteria for the New York Stock Exchange, Nasdaq National Market, or American Stock Exchange, or has a valid exemption from such criteria of which it has previously notified Fletcher in writing. To the best knowledge of Champion, after ▇▇▇ ▇▇▇uiry, no present set of facts or circumstances will (with the passage of time or the giving of notice or both or neither) cause any of the Common Stock to be delisted from the New York Stock Exchange. Within five (5) Business Days after and excluding the Initial Closing Date, all of the Covered Securities (as defined in Section 5(b)) will, when issued, be duly listed and admitted for trading on all of the markets where shares of Common Stock are traded, including the New York Stock Exchange. At each Subsequent Closing Date, all of the Covered Securities (as defined in Section 5(b)) will, when issued, be duly listed and admitted for trading on all of the markets where shares of Common Stock are traded, including one of the following: (i) the New York Stock Exchange, (ii) the Nasdaq National Market, or (iii) the American Stock Exchange.
(i) There is no pending or, to the best knowledge of Champion, threatened action, suit, proceeding or investigation before any court, governmental agency or body, or arbitrator having jurisdiction over Champion or any of its affiliates that would materially affect the execution by Champion of, or the performance by Champion of its obligations under, this Agreement, the Certificate of Rights and Preferences or the Warrant.
(j) Since March 31, 1998, none of Champion's filings with the Uni▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ Exchange Commission (the "SEC") under the Securities Act of 1933, as amended (the "Securities Act") or under Section 13(a) or 15(d) of the Exchange Act (each an "SEC Filing") contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading. Since March 31, 1998, there has not been any pending or, to the best knowledge of Champion, threatened action, suit, proceeding or investigation before any court, governmental agency or body, or arbitrator having jurisdiction over Champion or any of its affiliates that could cause a material adverse change in the condition, financial or otherwise, or in the business affairs, assets, results of operations or prospects of Champion, whether or not arising in the ordinary course of business, except as disclosed in Champion's SEC Filings on or before the date immediately prior to and excluding the date hereof. Since the date of Champion's most recent SEC Filing, there has not been any material adverse change in the condition, financial or otherwise, or in the business affairs, assets, results of operations or prospects of Champion, whether or not arising in the ordinary course of business. Except as set forth on Schedule 4(p) hereto, Champion's SEC Filings made before and excluding the date hereof fully disclose all material information concerning Champion and its subsidiaries.
(k) The offer and sale of the Investment Securities to Fletcher pursuant to this Agreement will, subject to complian▇▇ ▇▇ ▇▇etcher with the applicable representations and warranties c▇▇▇▇▇▇▇▇ in Section 8 hereof and with the applicable covenants and agreements contained in Section 12 hereof, be made in accordance with an exemption from the registration requirements of the Securities Act and any applicable state law. Neither Champion nor any agent on its behalf has solicited or will solicit any offers to sell or has offered to sell or will offer to sell all or any part of the Series C Preferred Shares or the Warrant to any person or persons so as to bring the sale of such Series C Preferred Shares or the Warrant by Champion within the registration provisions of the Securities Act.
(l) Immediately prior to the Initial Closing Date, the authorized capital stock of Champion consists of one hundred twenty million (120,000,000) shares of Common Stock, par value one dollar ($1.00), and five million (5,000,000) shares of preferred stock, no par value ("Preferred Stock") of which seven hundred and fifty thousand (750,000) are designated Series A Preferred Stock and twenty thousand (20,000) are designated Series B-1 Preferred Stock. Immediately prior to the Initial Closing Date, (A) forty-eight million five hundred sixty-five thousand two hundred eight (48,565,208) shares of Common Stock, no shares of Series A Preferred Stock and twenty-thousand (20,000) shares of Series B-1 Preferred Stock, were issued and outstanding, (B) eight million eighty-three thousand eight hundred thirty-one (8,083,831) shares of Common Stock, seven hundred and fifty thousand (750,000) shares of Series A Preferred Stock and twelve thousand (12,000) shares of Series B Preferred Stock are currently reserved and subject to issuance upon the exercise of outstanding stock options, warrants or other convertible rights, (C) no shares of Common Stock are held in the treasury of Champion, and (D) up to three hundred thirty-four thousand one hundred forty-seven (334,147) additional shares of Common Stock may be issued under the Champion Enterprises, Inc. Savings Plan. All of the outstanding shares of Preferred Stock and Common Stock are, and all shares of capital stock which may be issued pursuant to stock options, warrants or other convertible rights will be, when issued and paid for in accordance with the respective terms thereof, duly authorized, validly issued, fully paid and non-assessable, free of any preemptive rights in respect thereof and issued in material compliance with all applicable state and federal laws concerning issuance of securities. As of the date hereof, except as set forth above, and except for shares of Common Stock or other securities issued upon conversion, exchange, exercise or purchase associated with the securities, options, warrants, rights and other instruments referenced above, no shares of capital stock or other voting securities of Champion were outstanding, no equity equivalents, interests in the ownership or earnings of Champion or other similar rights were outstanding, and there were no existing options, warrants, calls, subscriptions or other rights or agreements or commitments relating to the capital stock of Champion or any of its subsidiaries or obligating Champion or any of its subsidiaries to issue, transfer, sell or redeem any shares of capital stock, or other equity interest in, Champion or any of its subsidiaries or obligating Champion or any of its subsidiaries to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement or commitment. Attached hereto as Schedule 4(l) is a true and correct list as of the date of this Agreement of all outstanding options, warrants, calls, subscriptions and other rights or agreements or commitments relating to the issuance of additional shares of capital stock of Champion and with respect to each a description of the number and class of securities and the exercise price thereof.the
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