EXHIBIT 10.30
$350,000,000
MAIL-WELL I CORPORATION
9 5/8% SENIOR NOTES DUE 2012
PURCHASE AGREEMENT
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March 8, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
UBS WARBURG LLC
BANC OF AMERICA SECURITIES LLC
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
FIRST UNION SECURITIES, INC.
SCOTIA CAPITAL (USA) INC.
c/o Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentleman:
1. Introductory. Mail-Well I Corporation, a Delaware
corporation (the "COMPANY"), proposes, subject to the terms and conditions
stated herein, to issue and sell to the several initial purchasers named in
Schedule A hereto (the "PURCHASERS") U.S.$350,000,000 principal amount of its
9 5/8% Senior Notes due 2012 (the "Notes") to be issued under an indenture,
dated as of March 13, 2002 (the "INDENTURE"), among the Company, the
guarantors named therein and State Street Bank and Trust Company, as Trustee,
and guaranteed (the "Guarantees") by the Company's parent company, Mail-Well,
Inc. (the "PARENT COMPANY") and the Company's domestic subsidiaries set forth
on the signature pages hereof (the Parent Company and such subsidiaries are
collectively referred to as the "GUARANTORS"). The Notes and the Guarantees
are referred to collectively as the "OFFERED SECURITIES." The Company and the
Guarantors are collectively referred to as the "ISSUERS." The United States
Securities Act of 1933 is herein referred to as the "SECURITIES ACT."
Holders (including subsequent transferees) of the Offered
Securities will have the registration rights set forth in the registration
rights agreement (the "REGISTRATION RIGHTS AGREEMENT"), to be dated the
Closing Date (as defined below), in substantially the form of Exhibit I
hereto,
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for so long as such Offered Securities constitute "TRANSFER RESTRICTED
SECURITIES" (as defined in the Registration Rights Agreement). Pursuant to
the Registration Rights Agreement, the Issuers will agree to file with the
Securities and Exchange Commission (the "COMMISSION") under the circumstances
set forth therein, (i) a registration statement under the Securities Act (the
"EXCHANGE OFFER REGISTRATION STATEMENT") relating to the Offered Securities
in a like aggregate principal amount as the Issuers issued under the
Indenture, identical in all material respects to the Offered Securities and
registered under the Securities Act (the "EXCHANGE SECURITIES"), to be
offered in exchange for the Offered Securities (such offer to exchange being
referred to as the "EXCHANGE OFFER") and (ii) a shelf registration statement
pursuant to Rule 415 under the Securities Act (the "SHELF REGISTRATION
STATEMENT" and, together with the Exchange Offer Registration Statement, the
"REGISTRATION STATEMENTS") relating to the resale by certain holders of the
Offered Securities and to use their reasonable best efforts to cause such
Registration Statements to be declared and remain effective and usable for
the periods specified in the Registration Rights Agreement and to consummate
the Exchange Offer. The Offered Securities and the Exchange Securities are
referred to collectively as the "SECURITIES."
The Issuers hereby agree with the several Purchasers as
follows:
2. Representations and Warranties of the Issuers. Each of the
Issuers, jointly and severally, represents and warrants to, and agrees with,
the several Purchasers that:
(a) A preliminary offering circular and an offering
circular relating to the Offered Securities to be offered by
the Purchasers have been prepared by the Issuers. Such
preliminary offering circular (the "PRELIMINARY OFFERING
CIRCULAR") and offering circular (the "OFFERING CIRCULAR"), as
supplemented as of the date of this Agreement, together with
any other document approved by the Issuers for use in
connection with the contemplated resale of the Offered
Securities are hereinafter collectively referred to as the
"OFFERING DOCUMENT." On the date of this Agreement, the
Offering Document does not include any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading. The preceding sentence does not
apply to statements in or omissions from the Offering Document
based upon written information furnished to the Issuers by any
Purchaser through Credit Suisse First Boston Corporation
("CSFBC") specifically for use therein, it being understood
and agreed that the only such information is that described as
such in Section 7(b) hereof.
(b) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and
other) to own its properties and conduct its business as
described in the Offering Document; and the Company is duly
qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification.
(c) Each subsidiary of the Company and the Parent Company
has been duly formed and is an existing corporation, limited
partnership or limited liability company, as the case may be,
in good standing under the laws of the jurisdiction of its
incorporation, with power
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and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Document;
and each subsidiary of the Company and the Parent Company is
duly qualified to do business as a foreign corporation,
partnership or limited liability company, as the case may be,
in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification except where the failure to be so
qualified does not or would not individually or in the
aggregate have a material adverse effect on the condition
(financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a
whole ("MATERIAL ADVERSE EFFECT"); all of the issued and
outstanding capital stock of each subsidiary of the Company
has been duly authorized and validly issued and is fully paid
and nonassessable; and except as described in the Offering
Document the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(d) The Indenture has been duly authorized; the Offered
Securities have been duly authorized; and when the Offered
Securities are delivered and paid for pursuant to this
Agreement on the Closing Date (as defined below), the
Indenture will have been duly executed and delivered, such
Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the
description thereof contained in the Offering Document and the
Indenture and such Offered Securities will constitute valid
and legally binding obligations of the Issuers, enforceable in
accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(e) Except as disclosed in the Offering Document, there
are no contracts, agreements or understandings between any of
the Issuers and any person that would give rise to a valid
claim against any of the Issuers or any Purchaser for a
brokerage commission, finder's fee or other like payment in
connection with the transactions contemplated by this
Agreement.
(f) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated
by this Agreement, the Registration Rights Agreement and the
Offering Document in connection with the issuance and sale of
the Offered Securities by the Issuers except such as may be
required under state securities laws, the filing of the
Exchange Offer Registration Statement or the Shelf
Registration Statement with the Commission and the order of
the Commission declaring the Exchange Offer Registration
Statement or the Shelf Registration Statement (each as defined
in the Registration Rights Agreement) effective.
(g) The execution, delivery and performance of the
Indenture, this Agreement and the Registration Rights
Agreement, and the issuance and sale of the Offered Securities
and compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over
the Parent Company, the Company or any subsidiary of the
Company or any of their properties, or any agreement or
instrument to which the Parent Company, the Company or any
such subsidiary is a party or by which the Parent Company, the
Company or any such subsidiary is bound or to which any of the
properties of the Parent Company, the Com-
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pany or any such subsidiary is subject, or the charter or
by-laws of the Parent Company, the Company or any such
subsidiary, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(h) This Agreement has been duly authorized, executed and
delivered by the Issuers.
(i) Except as disclosed in the Offering Document, the
Company and its subsidiaries have good and marketable title to
all real properties and all other properties and assets owned
by them, in each case free from liens, encumbrances and
defects that would materially interfere with the use made or
to be made thereof by them; and except as disclosed in the
Offering Document, the Company and its subsidiaries hold any
leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with
the use made or to be made thereof by them.
(j) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the
business now operated by them and have not received any notice
of proceedings relating to the revocation or modification of
any such certificate, authority or permit that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse
Effect.
(k) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Issuers, is
imminent that might have a Material Adverse Effect.
(l) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names
and other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to
conduct the business now operated by them, or presently
employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others
with respect to any intellectual property rights that, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
Material Adverse Effect.
(m) Except as disclosed in the Offering Document, neither
the Parent Company, the Company nor any of its subsidiaries is
in violation of any statute, any rule, regulation, decision or
order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release
of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "ENVIRONMENTAL
LAWS"), owns or operates any real property contaminated with
any substance that is subject to any environmental laws, is
liable for any off-site disposal or contamination pursuant to
any environmental laws, or is subject to any claim relating to
any envi-
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ronmental laws, which violation, contamination, liability
or claim would individually or in the aggregate have a
Material Adverse Effect; and the Company is not aware of any
pending investigation which might lead to such a claim.
(n) Except as disclosed in the Offering Document, there
are no pending actions, suits or proceedings against or
affecting the Parent Company, the Company, any of its
subsidiaries or any of their respective properties that, if
determined adversely to the Parent Company, the Company or any
of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect, or would materially and
adversely affect the ability of the Issuers to perform their
obligations under the Indenture, this Agreement or the
Registration Rights Agreement or which are otherwise material
in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or, to the
Issuers' knowledge, contemplated.
(o) The financial statements included in the Offering
Document present fairly the financial position of the Parent
Company and its consolidated subsidiaries as of the dates
shown and their results of operations and cash flows for the
periods shown, and, except as otherwise disclosed in the
Offering Document, such financial statements have been
prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis;
and the assumptions used in preparing the pro forma financial
statements included in the Offering Document provide a
reasonable basis for presenting the significant effects
directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein
reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
(p) Except as disclosed in the Offering Document, since
the date of the latest audited financial statements included
in the Offering Document there has been no material adverse
change, nor any development or event involving a prospective
material adverse change, in the condition (financial or
other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Offering Document, there
has been no dividend or distribution of any kind declared,
paid or made by the Parent Company on any class of its capital
stock or by the Company, except for distributions totaling not
more than $2.5 million from the Company to the Parent Company
in the ordinary course of business, on any class of its
capital stock.
(q) The Company is not an open-end investment company,
unit investment trust or face-amount certificate company that
is or is required to be registered under Section 8 of the
United States Investment Company Act of 1940 (the "INVESTMENT
COMPANY ACT"); and the Company is not and, after giving
effect to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in the
Offering Document, will not be an "investment company" as
defined in the Investment Company Act.
(r) No securities of the same class (within the meaning
of Rule 144A(d)(3) under the Securities Act) as the Offered
Securities are listed on any national securities exchange
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registered under Section 6 of the United States Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), or
quoted in a U.S. automated inter-dealer quotation system.
(s) The offer and sale of the Offered Securities in the
manner contemplated by this Agreement will be exempt from the
registration requirements of the Securities Act by reason of
Section 4(2) thereof and Regulation S and Rule 144A
thereunder; and it is not necessary to qualify an indenture in
respect of the Offered Securities under the United States
Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE
ACT").
(t) Neither the Parent Company, nor any of its affiliates,
nor any person acting on its or their behalf (i) has, within
the six-month period prior to the date hereof, offered or sold
in the United States or to any U.S. person (as such terms are
defined in Regulation S under the Securities Act) the Offered
Securities or any security of the same class or series as the
Offered Securities or (ii) has offered or will offer or sell
the Offered Securities (A) in the United States by means of
any form of general solicitation or general advertising within
the meaning of Rule 502(c) under the Securities Act or (B)
with respect to any such securities sold in reliance on Rule
903 of Regulation S ("REGULATION S") under the Securities Act,
by means of any directed selling efforts within the meaning of
Rule 902(c) of Regulation S. The Parent Company, its
affiliates and any person acting on its or their behalf have
complied and will comply with the offering restrictions
requirement of Regulation S. The Company has not entered and
will not enter into any contractual arrangement with respect
to the distribution of the Offered Securities except for this
Agreement.
(u) There is no "substantial U.S. market interest" as
defined in Rule 902(j) of Regulation S in the debt securities
of any of the Issuers.
(v) On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture
Act, and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder.
(w) On the Closing Date, the Exchange Securities will have
been duly authorized by the Issuers; and when the Exchange
Securities are issued, executed and authenticated in
accordance with the terms of the Exchange Offer and the
Indenture, the Exchange Securities will be entitled to the
benefits of the Indenture and will be the valid and legally
binding obligations of the Issuers, enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(x) On the Closing Date, the Guarantee to be endorsed on
the Offered Securities by each Guarantor will have been duly
authorized by such Guarantor, and will have been duly executed
and delivered by each such Guarantor and will conform to the
description thereof contained in the Offering Document. When
the Offered Securities have been issued, executed and
authenticated in accordance with the Indenture and delivered
to and paid for by the Purchasers in accordance with the terms
of this Agreement, the Guarantee of each Guarantor endorsed
thereon will constitute valid and legally binding obligations
of such Guaran-
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tor, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles.
(y) On the Closing Date, the Guarantee to be endorsed on
the Exchange Securities by each Guarantor will have been duly
authorized by such Guarantor; and, when issued, will have been
duly executed and delivered by each such Guarantor and will
conform to the description thereof contained in the Offering
Document. When the Exchange Securities have been issued,
executed and authenticated in accordance with the terms of the
Exchange Offer and the Indenture, the Guarantee of each
Guarantor endorsed thereon will constitute valid and legally
binding obligations of such Guarantor, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(z) On the Closing Date, the Registration Rights Agreement
will have been duly authorized, executed and delivered by the
Issuers. When the Registration Rights Agreement has been duly
executed and delivered, the Registration Rights Agreement will
be a valid and binding agreement of the Issuers, enforceable
against each Issuer in accordance with its terms, (x) except
as to rights of indemnity or contribution, or both, that may
be limited by state and Federal laws or public policy
underlying such laws and (y) subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
On the Closing Date, the Registration Rights Agreement will
conform to the description thereof in the Offering Circular.
(aa) Except as set forth in the Offering Document, there
are no contracts, agreements or understandings between any
Issuer and any person granting such person the right to
require such Issuer to file a registration statement under the
Securities Act with respect to any securities of such Issuer
or to require such Issuer to include such securities with the
Exchange Securities registered pursuant to any Registration
Statement.
(bb) Neither the Company nor any of its subsidiaries nor
any agent thereof acting on behalf of them has taken, and none
of them will take, any action that might cause this Agreement
or the issuance or sale of the Offered Securities to violate
Regulation T, Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System.
3. Purchase, Sale and Delivery of Offered Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, as of the Closing Date,
the Issuers agree to sell to the Purchasers, and the Purchasers agree,
severally and not jointly, to purchase from the Issuers, the Offered
Securities at a purchase price of 97.50% of the principal amount thereof.
The Issuers will deliver against payment of the purchase price
the Offered Securities to be offered and sold by the Purchasers in reliance
on Regulation S (the "REGULATION S SECURITIES") in the form of one or more
permanent global Securities in registered form without interest coupons
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(the "OFFERED REGULATION S GLOBAL SECURITIES") which will be deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") for the
respective accounts of the DTC participants for ▇▇▇▇▇▇ Guaranty Trust Company
of New York, Brussels office, as operator of the Euroclear System
("EUROCLEAR"), and Clearstream Banking, societe anonyme ("CLEARSTREAM") and
registered in the name of Cede & Co., as nominee for DTC. The Issuers will
deliver against payment of the purchase price the Offered Securities to be
purchased by each Purchaser hereunder and to be offered and sold by each
Purchaser in reliance on Rule 144A under the Securities Act (the "144A
SECURITIES") in the form of one permanent global security in definitive form
without interest coupons (the "RESTRICTED GLOBAL SECURITIES") deposited with
the Trustee as custodian for DTC and registered in the name of Cede & Co., as
nominee for DTC. The Regulation S Global Securities and the Restricted Global
Securities shall be assigned separate CUSIP numbers. The Restricted Global
Securities shall include the legend regarding restrictions on transfer set
forth under "Transfer Restrictions" in the Offering Document. Until the
termination of the restricted period (as defined in Regulation S) with
respect to the offering of the Offered Securities, interests in the
Regulation S Global Securities may only be held by the DTC participants for
Euroclear and Clearstream. Interests in any permanent global Securities will
be held only in book-entry form through Euroclear, Clearstream or DTC, as the
case may be, except in the limited circumstances described in the Offering
Document.
Payment for the Regulation S Securities and the 144A
Securities shall be made by the Purchasers in Federal (same day) funds by
wire transfer to an account at a bank acceptable to CSFBC and delivery of the
Offered Securities will take place at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
at 9:00 A.M. (New York time), on March, 2002, or at such other time not
later than seven full business days thereafter as CSFBC and the Company
determine, such time being herein referred to as the "CLOSING DATE", against
delivery to the Trustee as custodian for DTC of (i) the Regulation S Global
Securities representing all of the Regulation S Securities for the respective
accounts of the DTC participants for Euroclear and Clearstream and (ii) the
Restricted Global Securities representing all of the 144A Securities. The
Regulation S Global Securities and the Restricted Global Securities will be
made available for checking at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ at least
24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers. (a)
Each Purchaser severally represents and warrants to the Company that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may not be
offered or sold within the United States except pursuant to an exemption
from, or a transaction not subject to, the registration requirements of the
Securities Act. Each Purchaser severally represents and agrees that it has
not offered or sold and will not offer or sell, any Offered Securities
constituting part of its allotment within the United States, except in
accordance with Rule 903 or Rule 144A under the Securities Act. Accordingly,
neither such Purchaser nor its affiliates, nor any persons acting on its or
their behalf, have engaged or will engage in any directed selling efforts
with respect to the Offered Securities. Terms used in this subsection (b)
have the meanings given to them by Regulation S.
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(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities except
for any such arrangements with the other Purchasers or affiliates of the
other Purchasers or with the prior written consent of the Issuers.
(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United States
by means of any form of general solicitation or general advertising within
the meaning of Rule 502(c) under the Securities Act, including, but not
limited to (i) any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio or other electronic medium, including the Internet, or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Each Purchaser severally agrees, with
respect to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or
otherwise prior to settlement of such resale a notice to the effect that the
resale of such Offered Securities has been made in reliance upon the
exemption from the registration requirements of the Securities Act provided
by Rule 144A.
(e) Each of the Purchasers severally represents and agrees
that (i) it has not offered or sold and prior to the date six months after
the date of issue of the Offered Securities will not offer or sell any
Offered Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their businesses
or otherwise in circumstances which have not resulted and will not result in
an offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has complied and will comply
with all applicable provisions of the Financial Services Act 1986 with
respect to anything done by it in relation to the Offered Securities in, from
or otherwise involving the United Kingdom; and (iii) it has only issued or
passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issue of the Offered Securities to a
person who is of a kind described in Article 11(3) of the Financial Services
Act 1986 (Investment Advertisements) (Exemptions) Order 1996 or is a person
to whom such document may otherwise lawfully be issued or passed on.
5. Certain Agreements of the Issuers. The Issuers agree with
the several Purchasers that:
(a) The Issuers will advise CSFBC promptly of any proposal to
amend or supplement the Offering Document and will not effect such
amendment or supplementation without CSFBC's consent. If, at any
time prior to the completion of the resale of the Offered Securities
by the Purchasers, any event occurs as a result of which the
Offering Document as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or
if it is necessary at any such time to amend or supplement the
Offering Document to comply with any applicable law, the Issuers
promptly will notify CSFBC of such event and promptly will prepare,
at their own expense, an amendment or supplement which will correct
such statement or omission or effect such compliance. Neither
CSFBC's consent to, nor the Purchasers' delivery to offerees or in-
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vestors of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(b) The Issuers will furnish to CSFBC copies of any
preliminary offering circular, the Offering Document and all
amendments and supplements to such documents, in each case as soon
as available and in such quantities as CSFBC requests, and the
Issuers will furnish to CSFBC on the date hereof three copies of the
Offering Document, one of which will include the independent
accountants' reports therein manually signed by such independent
accountants. At any time when the Issuers are not subject to Section
13 or 15(d) of the Exchange Act, the Issuers will promptly furnish
or cause to be furnished to CSFBC (and, upon request, to each of the
other Purchasers) and, upon request of holders and prospective
purchasers of the Offered Securities, to such holders and
purchasers, copies of the information required to be delivered to
holders and prospective purchasers of the Offered Securities
pursuant to Rule 144A(d)(4) under the Securities Act (or any
successor provision thereto) in order to permit compliance with Rule
144A in connection with resales by such holders of the Offered
Securities. The Issuers will pay the expenses of printing and
distributing to the Purchasers all such documents.
(c) The Issuers will arrange for the qualification of the
Offered Securities for sale and the determination of their
eligibility for investment under the laws of such jurisdictions in
the United States and Canada as CSFBC designates and will continue
such qualifications in effect so long as required for the resale of
the Offered Securities by the Purchasers, provided that the Issuers
will not be required to qualify as a foreign corporation or to file
a general consent to service of process in any such state.
(d) During the period of five years hereafter, the Issuers
will furnish to CSFBC and, upon request, to each of the other
Purchasers, as soon as practicable after the end of each fiscal
year, a copy of the Parent Company's annual report to shareholders
for such year; and the Issuers will furnish to CSFBC and, upon
request, to each of the other Purchasers (i) as soon as available, a
copy of each report and any definitive proxy statement Issuers filed
with the Commission under the Exchange Act or mailed to
shareholders, and (ii) from time to time, such other information
concerning the Issuers as CSFBC may reasonably request.
(e) During the period of two years after the Closing Date, the
Issuers will, upon request, furnish to CSFBC each of the other
Purchasers and any holder of Offered Securities a copy of the
restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, the
Issuers will not, and will not permit any of its affiliates (as
defined in Rule 144 under the Securities Act) to, resell any of the
Offered Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the
Issuers will not be or become, an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company
Act.
-11-
(h) The Issuers will pay all expenses incidental to the
performance of its obligations under this Agreement, the Indenture,
and the Registration Rights Agreement, including (i) the fees and
expenses of the Trustee and its professional advisers; (ii) all
expenses in connection with the execution, issue, authentication,
packaging and initial delivery of the Offered Securities and, as
applicable, the Exchange Securities, the preparation and printing of
this Agreement, the Registration Rights Agreement, the Offered
Securities, the Indenture, the Offering Document and amendments and
supplements thereto, and any other document relating to the
issuance, offer, sale and delivery of the Offered Securities and as
applicable, the Exchange Securities; (iii) the cost of qualifying
the Offered Securities for trading in The Portal(SM) Market ("PORTAL")
and any expenses incidental thereto; (iv) the cost of any
advertising approved by the Issuers in connection with the issue of
the Offered Securities; (v) for any expenses (including fees and
disbursements of counsel) incurred in connection with qualification
of the Offered Securities or the Exchange Securities for sale under
the laws of such jurisdictions in the United States and Canada as
CSFBC designates and the printing of memoranda relating thereto;
(vi) for any fees charged by investment rating agencies for the
rating of the Securities or the Exchange Securities; and (vii) for
expenses incurred in distributing preliminary offering circulars and
the Offering Document (including any amendments and supplements
thereto) to the Purchasers. The Issuers will also pay or reimburse
the Purchasers (to the extent incurred by them) for all travel
expenses of the Purchasers (to the extent reasonable) and the
Issuers officers and employees and any other expenses of the
Purchasers (to the extent reasonable) and the Issuers in connection
with attending or hosting meetings with prospective purchasers of
the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have
notified the Issuers and the other Purchasers of the completion of
the resale of the Offered Securities, none of the Issuers nor any of
their respective affiliates has or will, either alone or with one or
more other persons, bid for or purchase for any account in which it
or any of its affiliates has a beneficial interest any Offered
Securities or attempt to induce any person to purchase any Offered
Securities; and neither it nor any of its affiliates will make bids
or purchases for the purpose of creating actual, or apparent, active
trading in, or of raising the price of, the Offered Securities.
(j) For a period of 180 days after the date of the initial
offering of the Offered Securities by the Purchasers, none of the
Issuers will offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any United States
dollar-denominated debt securities issued or guaranteed by any of
the Issuers and having a maturity of more than one year from the
date of issue or publicly disclose the intention to make any such
offer, sale, pledge, disposition or filing. None of the Issuers will
at any time offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any securities under
circumstances where such offer, sale, pledge, contract or
disposition would cause the exemption afforded by Section 4(2) of
the Securities Act or the safe harbor of Regulation S thereunder to
cease to be applicable to the offer and sale of the Offered
Securities.
6. Conditions of the Obligations of the Purchasers. The
obligations of the several Purchasers to purchase and pay for the Offered
Securities will be subject to the accuracy of the representations and
warranties on the part of the Issuers herein, to the accuracy of the
statements of officers of
-12-
the Issuers made pursuant to the provisions hereof, to the performance by
the Issuers of their respective obligations hereunder and to the following
additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the
date of this Agreement, of Ernst & Young LLP in form and substance
satisfactory to the Purchasers concerning the financial information
with respect to the Issuers set forth in the Offering Document.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the
judgment of CSFBC, be likely to prejudice materially the success of
the proposed issue, sale or distribution of the Offered Securities,
whether in the primary market or in respect of dealings in the
secondary market, or (ii) (A) any change, or any development or
event involving a prospective change, in the condition (financial or
other), business, properties or results of operations of the Company
or its subsidiaries which, in the judgment of a majority in interest
of the Purchasers including CSFBC, is material and adverse and makes
it impractical or inadvisable to proceed with completion of the
offering or the sale of and payment for the Offered Securities; (B)
any downgrading in the rating of any debt securities of any Issuer
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Securities Act), or
any public announcement that any such organization has under
surveillance or review its rating of any debt securities of any
Issuer (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating) or any announcement that any Issuer has been placed on
negative outlook; (C) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Issuers on any exchange or in the
over-the-counter market; (D) any banking moratorium declared by U.S.
Federal or New York authorities; (E) any major disruption of
settlements of securities; or (F) any attack on, outbreak or
escalation of major hostilities or act of terrorism in which the
United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency
if, in the judgment of a majority in interest of the Purchasers
including CSFBC, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the
offering or sale of and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for the
Company, that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the
Offering Document; and the Company is duly qualified to do
business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification, except where failure to be so qualified would
not have a Material Adverse Effect;
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(ii) The Indenture has been duly authorized,
executed and delivered by the Company and each Guarantor
and, assuming due authorization, execution and delivery
thereof by the Trustee, the Indenture constitutes a legally
valid and binding agreement of each of the Issuers,
enforceable against each of the Issuers in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and general equity principles; the Notes have been
duly authorized by the Company and, when executed,
authenticated and issued in accordance with the terms of the
Indenture and delivered to and paid for by the Purchasers in
accordance with this Agreement, the Notes will be legally
valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
(iii) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any
court is required for the consummation of the transactions
contemplated by this Agreement and the Registration Rights
Agreement in connection with the issuance or sale of the
Offered Securities by the Issuers, except (y) such as may be
required under state securities laws and (z) the filing of
the Exchange Offer Registration Statement with the
Commission and the order of the Commission declaring the
Exchange Offer Registration Statement or the Shelf
Registration Statement effective;
(iv) There are no pending actions, suits or
proceedings against the Company, any of its subsidiaries or
any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse
Effect, or would materially and adversely affect the ability
of any Issuer to perform its obligations under the
Indenture, this Agreement or the Registration Rights
Agreement, and no such actions, suits or proceedings are, to
such counsel's knowledge, threatened or contemplated;
(v) The execution, delivery and performance by the
Company and the Guarantors of the Indenture, this Agreement
and the Registration Rights Agreement, and the issuance and
sale of the Offered Securities and compliance with the terms
and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body or
any court having jurisdiction over the Company or any
Guarantor or any of their properties, or any agreement or
instrument to which the Company or any such Guarantor is a
party or by which the Company or any such Guarantor is bound
or to which any of the properties of the Company or any such
Guarantor is subject, or the charter or by-laws of the
Company or any such Guarantor, and the Issuers have the
corporate power and authority to authorize, issue and sell
the Offered Securities as contemplated by this Agreement;
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(vi) The descriptions in the Offering Circular of
statutes, certain U.S. federal income tax considerations,
legal and governmental proceedings and contracts and other
documents are accurate and fairly present the information
required to be shown;
(vii) This Agreement and the Registration Rights
Agreement have each been duly authorized, executed and
delivered by the Issuers;
(viii) It is not necessary in connection with (i)
the offer, sale and delivery of the Offered Securities by
the Issuers to the several Purchasers pursuant to this
Agreement or (ii) the resales of the Offered Securities by
the several Purchasers in the manner contemplated by this
Agreement, to register the Offered Securities under the
Securities Act or to qualify an indenture in respect thereof
under the Trust Indenture Act of 1939, as amended (the
"TIA");
(ix) The Indenture meets the requirements for
qualification under the TIA and the rules and regulations of
the Commission applicable to an indenture which is qualified
thereunder;
(x) The Exchange Securities have been duly
authorized by the Company; and when the Exchange Securities
are executed, issued and authenticated in accordance with
the terms of the Exchange Offer and the Indenture, the
Exchange Securities will be entitled to the benefits of the
Indenture and will be the legally valid and binding
obligations of the Company, enforceable against the Company
in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and to general equity
principles;
(xi) The Guarantees to be endorsed on the Notes have
been duly authorized by each Guarantor, and when executed
and delivered in accordance with the terms of the Indenture
will, upon due execution and delivery of the Notes by the
Company and due authentication of the Notes by the Trustee
against payment therefor in accordance with the terms of the
Indenture and this Agreement, be the legally valid and
binding obligations of each of the Guarantors, enforceable
against the Guarantors in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
(xii) The Guarantees to be endorsed on the Exchange
Securities have been duly authorized by each Guarantor, and
when executed and delivered in accordance with the Indenture
will, upon due execution and delivery of the Exchange
Securities by the Company and due authentication of the
Exchange Securities by the Trustee against exchange therefor
in accordance with the Indenture and this Agreement, be the
legally valid and binding obligations of each Guarantor,
enforceable against each Guarantor in accordance with their
terms, subject to bankruptcy, insol-
-15-
vency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or
affecting creditors' rights and to general equity
principles; and
(xiii) To such counsel's knowledge, there are no
contracts, agreements or understandings between any Issuer
and any person granting such person the right to require
such Issuer to file a registration statement under the
Securities Act with respect to any securities of such Issuer
or to require such Issuer to include such securities with
the Securities and Guarantees registered pursuant to any
Registration Statement.
In addition, such letter shall contain a paragraph stating that such
counsel has participated in reviews and discussions in connection with
the preparation of the Offering Circular, and in the course of such
reviews and discussions and such other investigations as such counsel
has deemed necessary, no facts came to such counsel's attention that
lead such counsel to believe that the Offering Circular (except as to
the financial statements and other related financial and other related
statistical data contained therein, as to all of which such counsel
does not need to express a belief), as of the date hereof and as of the
Closing Date, contained any untrue statement of a material fact
required to be stated therein or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(d) The Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Purchasers, an opinion, dated the Closing
Date, with respect to the incorporation of the Company, the validity
of the Offered Securities, the Offering Circular, the exemption from
registration for the offer and sale of the Offered Securities by the
Issuers to the several Purchasers and the resales by the several
Purchasers as contemplated hereby and other related matters as CSFBC
may require, and the Issuers shall have furnished to such counsel
such documents as they request for the purpose of enabling them to
pass upon such matters.
(e) The Purchasers shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of each Issuer in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties
of the Issuers in this Agreement are true and correct, that such
Issuer has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to
the Closing Date, and that, subsequent to the dates of the most
recent financial statements in the Offering Document there has been
no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole except as set forth in or
contemplated by the Offering Document or as described in such
certificate.
(f) The Purchasers shall have received a letter, dated the
Closing Date, of Ernst & Young LLP which meets the requirements of
subsection (a) of this Section.
-16-
(g) The repayment of indebtedness under the Company's senior
credit facility, and the amendment of the Company's existing senior
credit facility shall have been or shall be consummated on or prior
to the Closing Date as described in the Offering Document.
(h) No "nationally recognized statistical rating organization"
as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act (i) has imposed (or has informed any Issuer that it
is considering imposing) any condition (financial or otherwise) on
an Issuer retaining any rating assigned to any debt securities of
such Issuer or (ii) has indicated to any Issuer that it is
considering (a) the downgrading, suspension, or withdrawal of, or
any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (b)
any change in the outlook for any rating on the debt securities of
such Issuer.
The Issuers will furnish the Purchasers with such conformed
copies of such opinions, certificates, letters and documents as the
Purchasers reasonably request. CSFBC may in its sole discretion waive on
behalf of the Purchasers compliance with any conditions to the obligations of
the Purchasers hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) Each of the Issuers
will indemnify and hold harmless each Purchaser, its partners, directors and
officers and each person, if any, who controls such Purchaser within the
meaning of Section 15 of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which such Purchaser may become
subject, under the Securities Act or the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any breach of any of the
representations and warranties of the Company contained herein or any untrue
statement or alleged untrue statement of any material fact contained in the
Offering Document, or any amendment or supplement thereto, or any related
preliminary offering circular, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, including any
losses, claims, damages or liabilities arising out of or based upon any
Issuer's failure to perform its obligations under Section 5(a) of this
Agreement, and will reimburse each Purchaser for any legal or other expenses
reasonably incurred by such Purchaser in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Issuers 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 an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and
in conformity with written information furnished to the Issuers by any
Purchaser through CSFBC specifically for use therein, it being understood and
agreed that the only such information consists of the information described
as such in subsection (b) below.
(b) Each Purchaser will severally and not jointly indemnify
and hold harmless the Issuers, their respective directors and officers and
each person, if any, who controls the Issuers within the meaning of Section
15 of the Securities Act, against any losses, claims, damages or liabilities
to which the Issuers may become subject, under the Securities Act or the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Of-
-17-
fering Document, or any amendment or supplement thereto, or any related
preliminary offering circular, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
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 Issuers by such Purchaser through CSFBC specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Issuers in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Purchaser consists of the following information in the Offering Document
furnished on behalf of each Purchaser: under the caption "Plan of
Distribution", the final three paragraphs thereof; provided, however, that
the Purchasers shall not be liable for any losses, claims, damages or
liabilities arising out of or based upon the Issuers' failure to perform its
obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above unless the
indemnifying party is materially prejudiced thereby. In case any such action
is brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party unless such settlement includes an unconditional
release of such indemnified party from all liability on any claims that are
the subject matter of such action and does not include a statement as to or
an admission of fault, culpability or failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuers on the one hand and the Purchasers on the
other from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Issuers on
the one hand and the Purchasers on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
-18-
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Issuers on the one hand and the Purchasers
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Issuers bear to the total discounts and commissions received by the
Purchasers from the Issuers under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Issuers or the
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection
(d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Purchaser shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities purchased by it were resold exceeds the
amount of any damages which such Purchaser has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. The Purchasers' obligations in this subsection (d) to contribute
are several in proportion to their respective purchase obligations and not
joint.
(e) The obligations of the Issuers under this Section shall be
in addition to any liability which the Issuers may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Purchaser within the meaning of the Securities Act or the
Exchange Act; and the obligations of the Purchasers under this Section shall
be in addition to any liability which the respective Purchasers may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls the Issuers within the meaning of the Securities Act or the
Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers
default in their obligations to purchase Offered Securities hereunder and the
aggregate principal amount of Offered Securities that such defaulting
Purchaser or Purchasers agreed but failed to purchase does not exceed 10% of
the total principal amount of Offered Securities, CSFBC may make arrangements
satisfactory to the Issuers for the purchase of such Offered Securities by
other persons, including any of the Purchasers, but if no such arrangements
are made by the Closing Date, the non-defaulting Purchasers shall be
obligated severally, in proportion to their respective commitments hereunder,
to purchase the Offered Securities that such defaulting Purchasers agreed but
failed to purchase. If any Purchaser or Purchasers so default and the
aggregate principal amount of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total principal amount of
Offered Securities and arrangements satisfactory to CSFBC and the Issuers for
the purchase of such Offered Securities by other persons are not made within
36 hours after such default, this Agreement will terminate without liability
on the part of any non-defaulting Purchaser or the Issuers, except as
provided in Section 9. As used in this Agreement, the term "Purchaser"
includes any person substituted for a Purchaser under this Section. Nothing
herein will relieve a defaulting Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Issuers or its officers and of the several Purchasers set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Pur-
-19-
chaser, the Issuers or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to
Section 8 or if for any reason the purchase of the Offered Securities by the
Purchasers is not consummated, the Issuers shall remain responsible for the
expenses to be paid or reimbursed by it to non-defaulting Purchasers pursuant
to Section 5 and the respective obligations of the Issuers to non-defaulting
Purchasers and the Purchasers to the Issuers pursuant to Section 7 shall
remain in effect. If the purchase of the Offered Securities by the Purchasers
is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (C), (D), (E) or (F) of Section 6(b)(ii), the
Issuers will reimburse the non-defaulting Purchasers for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing
and, if sent to the Purchasers will be mailed, delivered or telegraphed and
confirmed to the Purchasers, c/o Credit Suisse First Boston Corporation,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. 10010-3629, Attention: Investment
Banking Department--Transactions Advisory Group, or, if sent to the Issuers,
will be mailed, delivered or telegraphed and confirmed to it at Mail-Well,
Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General
Counsel provided, however, that any notice to a Purchaser pursuant to Section
7 will be mailed, delivered or telegraphed and confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
the controlling persons referred to in Section 7, and no other person will
have any right or obligation hereunder, except that holders of Offered
Securities shall be entitled to enforce the agreements for their benefit
contained in the second and third sentences of Section 5(b) hereof against
the Issuers as if such holders were parties thereto.
12. Representation of Purchasers. CSFBC will act for the
several Purchasers in connection with this purchase, and any action under
this Agreement taken by the Purchasers jointly or by CSFBC will be binding
upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Each Issuer hereby submits to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of
New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
(Signature Pages Follow)
-20-
If the foregoing is in accordance with the Purchasers'
understanding of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement between the
Issuers and the several Purchasers in accordance with its terms.
Very truly yours,
MAIL-WELL I CORPORATION
By:
---------------------------------
Name:
Title:
MAIL-WELL, INC.
By:
---------------------------------
Name:
Title:
ABP BOOKS, INC.
DISCOUNT LABELS, INC.
HILL GRAPHICS, INC.
MAIL-WELL COMMERCIAL PRINTING, INC.
MAIL-WELL LABEL USA, INC.
MAIL-WELL MEXICO HOLDINGS, INC.
MAIL-WELL SERVICES, INC.
MAIL-WELL TEXAS FINANCE LP
MAIL-WELL WEST, INC.
NATIONAL GRAPHICS COMPANY
POSER BUSINESS FORMS, INC.
WISCO III, L.L.C.
By:
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Name:
Title:
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
UBS WARBURG LLC
BANC OF AMERICA SECURITIES LLC
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
FIRST UNION SECURITIES, INC.
SCOTIA CAPITAL (USA) INC.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
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Name:
Title: