EXHIBIT 10.12
$90,000,000
HCC INDUSTRIES INC.
10 3/4% SENIOR SUBORDINATED NOTES
PURCHASE AGREEMENT
------------------
May 1, 1997
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇▇▇▇ LLC
c/o Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
1. Introductory. HCC Industries Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to Credit Suisse First Boston Corporation ("CSFBC") and ▇▇▇▇▇▇
▇▇▇▇ LLC (each an initial "Purchaser") $90,000,000 principal amount of its 10
3/4% Senior Subordinated Notes ("Securities") to be issued under an indenture,
dated as of May 6, 1997 (the "Indenture"), among the Company, the Subsidiary
Guarantors referred to therein and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company as Trustee.
The United States Securities Act of 1933 is herein referred to as the
"Securities Act." For purposes of this Agreement, "Subsidiary Guarantors" shall
refer to Hermetic Seal Corporation, a Delaware corporation, Glasseal Products,
Inc., a New Jersey corporation, Sealtron Inc., a Delaware corporation, Sealtron
Acquisition Corp., a Delaware corporation, and HCC Industries International, a
California corporation.
The Company hereby agrees with the Purchasers as follows:
2. Representations and Warranties of the Company and Subsidiary
Guarantors. The Company and each Subsidiary Guarantor, jointly and severally,
represents and warrants to, and agrees with, the Purchasers that:
(a) A preliminary offering circular and an offering circular relating
to the Securities have been prepared by the Company. Such preliminary offering
circular and offering circular, as supplemented as of the date of this
Agreement, together with the documents listed in Schedule B hereto and any other
document approved by the Company for use in connection with the contemplated
resale of the Securities are hereinafter collectively referred to as the
"Offering Document." As of their respective dates, and in the case of the
offering circular, 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 necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The information
required to be delivered to holders and prospective purchasers of the Securities
pursuant to the Indenture in accordance with Rule 144A(d)(4) under the
Securities Act (the "Additional Issuer Information") does not include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding two sentences do not apply to
statements in or omissions from the Offering Document based upon written
information furnished to the Company by either Purchaser through 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 has been duly incorporated and is
an existing corporation in good standing under the laws of the jurisdiction of
its incorporation, with power 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 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;
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 the capital stock of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens, encumbrances and
defects, except liens in connection with the credit facilities (as defined in
the Offering Document).
(d) The Indenture has been duly authorized by the Company and each of
the Subsidiary Guarantors; the Securities have been duly authorized; and when
the 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 by the Company and each of the Subsidiary Guarantors, such 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 Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws now or hereinafter in effect of general applicability relating to
or affecting creditors' rights and to general equity principles.
(e) The Guarantees have been duly and validly authorized by each
Subsidiary Guarantor and will conform in all material respects to the
description thereof in the Offering Document and, when executed by each
Subsidiary Guarantor and authenticated by the Trustee in accordance with the
Indenture and issued and delivered in accordance with the terms of this
Agreement and the Indenture, will be valid and binding obligations of such
Subsidiary Guarantor entitled to the benefits of the Indenture enforceable
against such Subsidiary Guarantor in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws now or hereinafter in effect of general applicability relating to
affecting creditors' rights generally and to general equity principles.
(f) Assuming the accuracy of the representations and warranties of the
Purchasers contained in Section 4 of this Agreement, 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 in connection with either the issuance and sale of the Securities
by the Company or the issuance of the Guarantees by the Subsidiary Guarantors,
except as may be required under the Securities Act and the Rules and Regulations
of the Securities and Exchange Commission (the "SEC") with respect to the
Registration Rights Agreement, the Exchange Offer and the transactions
contemplated thereunder or state or foreign securities laws or by the
regulations of the National Association of Securities Dealers, Inc.
(g) The execution, delivery and performance of the Indenture, the
Guarantees and this Agreement, and the issuance and sale of the 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 Company or any
subsidiary of the Company or any of their properties, or any agreement or
instrument to which the Company or any such subsidiary is a party or by which
the Company or any such subsidiary is bound or to which any of the properties of
the Company or any such subsidiary is subject, or the charter or by-laws of the
Company or any such subsidiary (except for such violations (other than
violations of the Company's and the Subsidiary Guarantors' charters and bylaws
and orders) which would not in the aggregate have a material
2
adverse effect on the Company and its subsidiaries taken as a whole), and the
Company has full power and authority to authorize, issue and sell the Securities
as contemplated by this Agreement, and each Subsidiary Guarantor has full power
and authority to authorize and issue the Guarantees as contemplated by the
Indenture.
(h) Each of this Agreement and the Registration Rights Agreement among
the Company, the Subsidiary Guarantors and the Purchasers has been duly
authorized, executed and delivered by the Company and each Subsidiary Guarantor.
(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
material properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
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 on the Company and its subsidiaries taken as a whole.
(k) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that might
have a material adverse effect on the Company and its subsidiaries taken as a
whole.
(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 on the Company and its subsidiaries
taken as a whole.
(m) Except as disclosed in the Offering Document, neither 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 environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a material adverse effect on
the Company and its subsidiaries taken as a whole; 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 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 on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, or would materially and adversely affect the
ability of the Company to perform its obligations under the Indenture or this
Agreement, or which are otherwise material in the context of the sale of the
Securities; and no such actions, suits or proceedings are threatened or, to the
Company's knowledge, contemplated.
3
(o) The financial statements included in the Offering Document present
fairly the financial position of the Company and its consolidated subsidiaries
as of the dates shown and their results of operations and cash flows for the
periods shown, and 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 (provided that other assumptions may
also be reasonable), 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, to the best of the Company's
knowledge, 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 Company 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"), nor is it a closed-end investment company required to
be registered, but not registered, thereunder; and the Company is not and, after
giving effect to the offering and sale of the 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 Securities are listed on any
national securities exchange registered under Section 6 of the United States
Securities Exchange Act of 1934 ("Exchange Act") or quoted in a U.S. automated
inter-dealer quotation system.
(s) Assuming the accuracy of the representations and warranties of
each of the Purchasers in Section 4 hereof and due performance and compliance by
each of the Purchasers of their obligations under this Agreement and the
Offering Document, the offer and sale of the 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
thereunder; and it is not necessary to qualify an indenture in respect of the
Securities under the United States Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act").
(t) Neither the 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 Securities or
any security of the same class or series as the Securities or (ii) has offered
or will offer or sell the 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(b)
of Regulation S. The 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
Securities except for this Agreement.
3. Purchase, Sale and Delivery of Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 97% of the principal amount thereof
plus accrued interest, if any, from May 6, 1997 to the Closing Date
4
(as hereinafter defined), the respective principal amounts of Securities set
forth opposite the names of the Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the
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 temporary global
securities in registered form without interest coupons (the "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 Cedel Societe Anonyme
("Cedel") and registered in the name of Cede & Co., as nominee for DTC. The
Company will deliver against payment of the purchase price the 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 Securities, interests in the Regulation S Global Securities may
only be held by the DTC participants for Euroclear and Cedel. Interests in any
permanent global Securities will be held only in book-entry form through
Euroclear, Cedel or DTC, as the case may be, except in the limited circumstances
described in the Offering Document.
Payment for the Regulation S Global Securities and the Restricted
Global Securities shall be made by the Purchasers in Federal (same day) funds by
official check or checks or wire transfer to an account at a bank acceptable to
CSFBC by the Company drawn to the order of the Company at the office of Skadden,
Arps, Slate, Meager & ▇▇▇▇ LLP at 10:00 A.M., (New York time), on May 6, 1997,
or at such other time not later than seven full business days thereafter and
date 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
Cedel 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 above office of Skadden,
Arps, Slate, Meager & ▇▇▇▇ LLP at least 24 hours prior to the Closing Date.
Notwithstanding the foregoing, any Securities sold to Institutional
Accredited Investors (as hereinafter defined) pursuant to Section 4(c) shall be
issued in definitive, fully registered form and shall bear the legend relating
thereto set forth under "Transfer Restrictions" in the Offering Document, but
shall be paid for in the same manner as any Securities to be purchased by the
Purchasers hereunder and to be offered and sold by them in reliance on Rule 144A
under the Securities Act.
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 Securities have not
been registered under the Securities Act and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S. persons except
in accordance with Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act. Each Purchaser severally
represents and agrees that it has offered and sold the Securities and will offer
and sell the Securities (i) as part of their distribution at any time and (ii)
otherwise until 40 days after the later of the commencement of the offering and
the Closing Date, only in accordance with Rule 144A ("Rule 144A") or Rule 903
under the Securities Act or CSFBC, or ▇▇▇▇▇▇ ▇▇▇▇ LLC if authorized by CSFBC, to
a limited number of Institutional Accredited Investors in accordance with
subsection (c). Accordingly, each Purchaser, severally, represents, warrants
and agrees that neither such Purchaser nor its affiliates, nor any persons
acting on its or their
5
behalf, have engaged or will engage in any directed selling efforts with respect
to the Securities, and such Purchaser, its affiliates and all persons acting on
its or their behalf have complied and will comply with the offering restrictions
requirement of Regulation S and any applicable foreign securities laws,
regulations or restrictions in connection with the offering of the Securities
outside the United States. Each Purchaser severally agrees that, at or prior to
confirmation of sale of the Securities, other than a sale pursuant to Rule 144A
or a sale to an Institutional Accredited Investor in accordance with subsection
(c), such Purchaser will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases the
Securities from it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered
or sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the date of the
commencement of the offering and the closing date, except in either
case in accordance with Regulation S (or Rule 144A if available) under
the Securities Act. Terms used above have the meanings given to them
by Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) CSFBC, and ▇▇▇▇▇▇ ▇▇▇▇ LLC, if authorized by CSFBC, may offer and
sell Securities in definitive, fully registered form to a limited number of
institutions, each of which is reasonably believed by the applicable Purchaser
to be an "accredited investor" within the meaning of Rule 501(a)(1), (2) or (3)
under the Securities Act or an entity in which all of the equity owners are
accredited investors within the meaning of Rule 501(a)(1), (2) or (3) under the
Securities Act (each, an "Institutional Accredited Investor"); provided that
each such Institutional Accredited Investor executes and delivers to such
Purchaser and the Company, prior to the consummation of any sale of Securities
to such Institutional Accredited Investor, a Purchaser's Letter in substantially
the form attached hereto as Schedule C (a "Purchaser's Letter").
(d) Each Purchaser severally represents, warrants and 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 Securities
except for any such arrangements with the other Purchaser or affiliates of the
other Purchaser or with the prior written consent of the Company.
(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 Securities will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995; (ii) it
has complied and will comply with all applicable provisions of the Financial
Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom; and (iii) it has
only issued or passed on and will only issue or pass on in the United Kingdom
any document received by it in connection with the issue of the Securities to a
person who is of a kind described in Article 11(3) of the Financial Services ▇▇▇
▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996 or is a person to whom
such document may otherwise lawfully be issued or passed on.
(f) Each Purchaser severally represents, warrants and agrees that it
and each of its affiliates will not offer or sell the 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 (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 Securities, to deliver either with the confirmation of such resale or
otherwise prior to the
6
settlement of such resale a notice to the effect that the resale of such
Securities has been made in reliance upon the exemption from the registration
requirements of the Securities Act provided by Rule 144A.
5. Certain Agreements of the Company. The Company agrees with the
Purchasers that:
(a) The Company 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, which consent shall not be unreasonably
withheld. If, at any time prior to the completion of the resale of the
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, the Company promptly will notify CSFBC of such event and
promptly will prepare, at its own expense, an amendment or supplement which will
correct such statement or omission. Neither CSFBC's consent to, nor the
Purchasers' delivery to offerees or investors of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(b) The Company 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 Company will furnish to CSFBC on the date hereof three
copies of the Offering Document signed by a duly authorized officer of the
Company, one of which will include the independent accountants' reports therein
manually signed by such independent accountants. At any time when the Company
is not subject to Section 13 or 15(d) of the Exchange Act, the Company will
promptly furnish or cause to be furnished to CSFBC (and, upon request, to ▇▇▇▇▇▇
▇▇▇▇ LLC) and, upon request of holders and prospective purchasers of the
Securities, to such holders and purchasers, a reasonable number of copies of the
information required to be delivered to holders and prospective purchasers of
the 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 Securities. The Company will pay
the expenses of printing and distributing to the Purchasers all such documents.
(c) The Company will arrange, in cooperation with the Purchasers, for
the qualification of the 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 Securities by the Purchasers;
provided that neither the Company nor any Subsidiary Guarantor will be required
--------
to qualify as a foreign corporation or to file a general consent to service of
process in any such jurisdiction.
(d) During the period of five years hereafter, the Company will
furnish to the Purchasers, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and the Company
will furnish to CSFBC and, upon request, to ▇▇▇▇▇▇ ▇▇▇▇ LLC (i) as soon as
available, a copy of each report or other publicly available information mailed
by the Company to holders of the Securities, and (ii) from time to time, such
other information concerning the Company as CSFBC may reasonably request.
(e) During the period of two years after the Closing Date, the Company
will, upon request, furnish to any Purchaser and any holder of Securities a copy
of the restrictions on transfer applicable to the Securities.
(f) During the period of two years after the Closing Date, the Company
will not, and will not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Securities that have been
reacquired by any of them, provided that this clause shall not apply to the
-------------
Exchange Notes issued in accordance with the Exchange Offer contemplated by
Registration Rights Agreement (each as defined in the Registration Rights
Agreement), and provided further that if at any time any Purchaser becomes an
----------------
affiliate as defined in Rule 144 under the Securities Act, then this clause (f)
shall not apply with respect to such Purchaser.
7
(g) During the period of two years after Closing Date, the Company
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, and is not, and will not be or become,
a closed-end investment company required to be registered, but not registered,
under the Investment Company Act .
(h) The Company will pay all expenses incidental to the performance of
its obligations under this Agreement and the Indenture, 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 Securities, the preparation and printing of this Agreement, the
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 Securities; (iii) the cost of qualifying the Securities for
trading in the Private Offerings, Resale and Trading through Automated Linkages
(PORTAL) Market and any expenses incidental thereto; (iv) the cost of any
advertising approved by the Company in connection with the issue of the
Securities; (v) for any expenses (including fees and disbursements of counsel)
in connection with qualification of the 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; and (vii) for expenses
incurred in distributing preliminary offering circulars and the Offering
Document (including any amendments and supplements thereto) to the Purchasers.
The Company will also pay or reimburse the Purchasers (to the extent incurred by
them) for all lodging and air travel expenses of the Company's officers and
employees and all chartered air travel of the Purchasers and the Company's
officers and employees. The Purchasers shall bear all other expenses not
referred to above including the cost of their legal expenses (other than those
legal expenses referred to in clause (v).)
(i) In connection with the offering, until CSFBC shall have notified
the Company and ▇▇▇▇▇▇ ▇▇▇▇ LLC of the completion of the resale of the
Securities, neither the Company nor any of its 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 Securities or
attempt to induce any person to purchase any 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
Securities.
(j) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement relating to debt securities issued or guaranteed by the
Company and having a maturity of more than one year from the date of issue, or
publicly disclose the intention to make such offer, sale, pledge, disposition or
filing, without prior written consent of CSFBC for a period beginning at the
date of this Agreement and ending at the later of the Closing Date or the
lifting of trading restrictions by the Purchasers.
6. Conditions of the Obligations of the Purchasers. The obligations of
the Purchasers to purchase and pay for the Securities will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of officers of the Company made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of
this Agreement, of Coopers & ▇▇▇▇▇▇▇ L.L.P. in form and substance satisfactory
to the Purchasers concerning certain financial information with respect to the
Company set forth in the Offering Document and, to the extent covered in such
letter, the Additional Issuer Information.
(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
that would, in the judgment of CSFBC, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Securities, whether
in the primary market or in respect of dealings in the
8
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 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 Securities; (B) any downgrading in the rating of any debt
securities of the Company 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 the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (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 Company on any exchange or in the over-the-
counter market; (D) any banking moratorium declared by U.S. Federal or New York
authorities; or (E) any outbreak or escalation of major hostilities 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 outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the offering or sale of
and payment for the Securities.
(c) The Purchasers shall have received an opinion, dated the Closing
Date, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company and
the Subsidiary Guarantors to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, and
has the corporate power and corporate authority to own its properties and
to conduct its business as described in the Offering Memorandum.
(ii) Each of the Subsidiary Guarantors has been duly
incorporated and is an existing corporation in good standing under the laws
of its state of incorporation, and has the corporate power and corporate
authority to own its properties and to conduct its business as described in
the Offering Memorandum.
(iii) The Indenture has been duly authorized , executed and
delivered by the Company and each of the Subsidiary Guarantors, and,
assuming due authorization, execution and delivery by the Trustee, will
constitute a valid and binding obligation of the Company and each
Subsidiary Guarantor, en forceable in accordance with its terms, except to
the extent that enforcement thereof may be limited by (a) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
similar laws now or hereafter in effect relating to creditors' rights
generally and (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
(iv) The Notes have been duly authorized and conform in all
material respects to the description thereof contained in the Offering
Memorandum, and when executed and authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement will constitute
valid and binding obligations of the Company, enforceable in accordance
with their terms, except to the extent that enforcement thereof may be
limited by (a) bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws now or hereafter in effect relating to
creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or in equity).
(v) The Guarantees have been duly authorized by each
Subsidiary Guarantor and con form in all material respects to the
description thereof in the Offering Memorandum and will constitute valid
and binding obligations of each Subsidiary Guarantor, enforceable in
accordance with their terms, except to the extent that enforcement thereof
may be limited by (a) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws now or hereafter in
effect relating to creditors' rights generally and (b) general principles
of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity).
9
(vi) All the outstanding shares of capital stock of the
Company issued in connection with the recapitalization of the Company
effective February 14, 1997 pursuant to a Stock Purchase and Sale
Agreement, dated as of December 23, 1996, among the Company and the other
parties thereto and the reclassification of the Company's capital stock
effective March 31, 1997 have been duly authorized and validly issued and
are fully paid, non-assessable and not subject to any preemptive rights
under the Company's Certificate of Incorporation, any applicable laws, or
agreement or instrument listed on Schedule A to such opinion.
(vii) Each of this Agreement and the Registration Agreement
has been duly authorized, executed and delivered by the Company and each
Subsidiary Guarantor.
(viii) None of the Company or the Subsidiary Guarantors is and,
after giving effect to the offering and sale of the Notes and the
application of the proceeds therefrom as described in the Offering
Memorandum, will be an "investment company" as defined in the Investment
Company Act of 1940.
(ix) It is not necessary in connection with the offer, sale
and delivery of the Notes by the Company to the Initial Purchasers pursuant
to this Agreement or the initial resale of such Notes by the Initial
Purchasers in the manner contemplated by this Agreement, to register the
Notes under the Securities Act or to qualify the Indenture under the Trust
Indenture Act, it being understood that such opinion shall be based on
certain assumptions set forth therein and that such counsel will express no
opinion as to any subsequent resale of the Notes.
(x) No Governmental Approval is required for the execution
and delivery of this Agreement, the Registration Agreement, the Indenture,
the Guarantees or the Notes, and the consummation of the transactions
contemplated hereby and thereby, including the issuance or sale of the
Notes by the Company, except such as may be required under state securities
laws.
(xi) The execution and delivery and performance by the
Company and the Subsidiary Guarantors of this Agreement and the Indenture,
and the issuance and sale of the Notes and the Guarantees and compliance
with the terms and provisions thereof will not result in a breach or
violation of any terms and provisions of, or constitute a default under,
(a) any applicable law or any order, injunction or decree of any
governmental agency or body or any court having jurisdiction over the
Company or any subsidiary of the Company or any of their properties, which
have been identified to such counsel by the Company and listed on Schedule
B to such opinion, (b) the agreements and instruments provided to such
counsel by the Company and set forth on Schedule A to such opinion (except
for breaches and violations of the foregoing which will not have a material
adverse effect on the Company and its subsidiaries taken as a whole);
provided, however, such counsel will express no opinion with respect to any
financial ratio or other financial tests contained therein, or (c) the
Certificate of Incorporation or By-laws of the Company or any such
subsidiary. The Company has the corporate power and corporate authority to
authorize, issue and sell the Notes as contemplated in this Agreement and
each Subsidiary Guarantor has the corporate power and corporate authority
to authorize and issue its Guarantee as contemplated by this Agreement.
(xii) To such counsel's knowledge, except as described in the
Offering Memorandum, there are no legal or governmental actions, suits or
proceedings pending or threatened to which the Company or any Subsidiary
Guarantor is a party or to which any of their respective property is
subject which would be required to be described in the Offering Memorandum
if it were a prospectus included in a registration statement on Form S-1
under the Securities Act.
(xiii) The descriptions in the Offering Memorandum of statutes,
legal and governmental proceedings, contracts and other documents, insofar
as such descriptions constitute a summary of such statutes, legal and
governmental proceedings, contracts and other documents referred to
therein, fairly present the information called for with respect to such
information in all material respects.
10
(xiv) Such counsel has no reason to believe that the Offering
Document, or any amendment or supplement thereto, as of the date thereof
and as of the Closing Date, contained any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein not misleading, it being understood that such counsel is not
passing upon, and does not assume and responsibility for the accuracy,
completeness or fairness of the statements contained in the Offering
Document and have made no independent check or verification thereof (except
as to matters referred to in clause (xiii)); it being understood that such
counsel need express no opinion as to the financial statements, or other
financial, statistical or accounting data included in, or excluded from,
the Offering Document.
(d) The Purchasers shall have received from O'Melveny & ▇▇▇▇▇ LLP,
counsel for the Purchasers, such opinion or opinions, dated the Closing Date,
with respect to the incorporation of the Company, the validity of the
Securities, the Offering Document, the exemption from registration for the offer
and sale of the Securities by the Company to the Purchasers and the resales by
the Purchasers as contemplated hereby and other related matters as CSFBC may
require, and the Company 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 the Company and each Subsidiary Guarantor in which such
officers, to the best of their knowledge after reasonable investigation, shall
state that the representations and warranties of the Company in this Agreement
are true and correct, that the Company and each Subsidiary Guarantor 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, with
respect to the Company's certificate, that, subsequent to the date 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 Coopers & ▇▇▇▇▇▇▇ L.L.P. which meets the requirements of subsection (a)
of this Section, except that the specified date referred to in such subsection
will be a date not more than three business days prior to the Closing Date for
the purposes of this subsection.
The Company 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.
7. Indemnification and Contribution.
(a) The Company and each Subsidiary Guarantor, jointly and severally,
will indemnify and hold harmless each Purchaser 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 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 necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, 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 Company and each of the
-------- -------
Subsidiary Guarantors will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon 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 Company or any Subsidiary Guarantor 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)
11
below; and provided further, however, that with respect to any untrue statement
-------- ------- -------
or omission or alleged untrue statement or omission made in any preliminary
offering circular, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Purchaser that sold the Securities
concerned to the person asserting any such losses, claims, damages or
liabilities, to the extent that such sale was an initial resale by such
Purchaser and any such loss, claim, damage or liability of such Purchaser
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Securities to such person,
a copy of the Offering Document (exclusive of any material included therein but
not attached thereto) if the Company had previously furnished copies thereof to
such Purchaser and such copies corrected such misstatement or omission.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company and each Subsidiary Guarantor against any losses, claims,
damages or liabilities to which the Company or any Subsidiary Guarantor 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 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 the alleged omission to state
therein a material fact 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 Company by such
Purchaser through CSFBC specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company and the Subsidiary
Guarantors 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 either Purchaser consists
of (i) the following information in the Offering Document furnished on behalf of
each Purchaser: the last paragraph at the bottom of the cover page concerning
the terms of the offering by the Purchasers, the legend concerning over-
allotments and stabilizing on the inside front cover page and fifth paragraph,
and the third sentence of the seventh paragraph, and the ninth paragraph, all
under the caption "Plan of Distribution".
(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. 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 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.
(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 Company and the
Subsidiary Guarantors on the one hand and the Purchasers on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Subsidiary Guarantors on the one
hand and the Purchasers on the other
12
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company 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 Company bear to the total discounts and commissions received by the
Purchasers from the Company 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 Company, the Subsidiary
Guarantors 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 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 Company and the Subsidiary Guarantors under
this Section shall be in addition to any liability which the Company and the
Subsidiary Guarantors may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls either 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 Company 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 Securities hereunder and the aggregate principal
amount of Securities that such defaulting Purchaser or Purchasers agreed but
failed to purchase does not exceed 10% of the total principal amount of
Securities, CSFBC may make arrangements satisfactory to the Company for the
purchase of such 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 Securities that such defaulting
Purchasers agreed but failed to purchase. If any Purchaser or Purchasers so
default and the aggregate principal amount of Securities with respect to which
such default or defaults occur exceeds 10% of the total principal amount of
Securities and arrangements satisfactory to CSFBC and the Company for the
purchase of such 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 Company, 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
Company or its officers, the Subsidiary Guarantors or their respective officers
and of the 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 either Purchaser, the
Company, the Subsidiary Guarantors or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Securities. If this Agreement is terminated pursuant to
Section 8 or if for any reason the purchase of the Securities by the Purchasers
is not consummated, the Company shall remain responsible for the expenses to be
paid or reimbursed by it pursuant to Section 5 and the respective obligations of
the Company, the Subsidiary Guarantors and the Purchasers pursuant to Section 7
shall remain in effect. If the purchase of the 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) or (E) of Section 6(b)(ii), the Company will reimburse the
Purchasers for all
13
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the 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, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Investment Banking Department-- Transactions
Advisory Group, or, if sent to the Company or any Subsidiary Guarantor, will be
mailed, delivered or telegraphed and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Chief Executive Officer; 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 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 Company as if such holders
were parties thereto.
12. Representation of Purchasers. CSFB will act for the Purchasers in
connection with this purchase, and any action under this Agreement taken 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.
The Company and each Subsidiary Guarantor 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.
14
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 Company, the Subsidiary
Guarantors and the Purchasers in accordance with its terms.
Very truly yours,
HCC Industries Inc.
By ___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Executive Officer
Hermetic Seal Corporation
By ___________________________________
Glasseal Products, Inc.
By ____________________________________
Sealtron, Inc.
By ____________________________________
Sealtron Acquisition Corp.
By ____________________________________
HCC Industries International
By ____________________________________
S-1
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇▇▇▇ LLC
By Credit Suisse First Boston Corporation
By ___________________________________
S-2
SCHEDULE A
PURCHASER PRINCIPAL AMOUNT OF
--------- SECURITIES
--------------------
Credit Suisse First Boston Corporation $76,500,000
▇▇▇▇▇▇ ▇▇▇▇ LLC......................... $13,500,000
Total $90,000,000
===========
A-1
SCHEDULE B
List of Documents Delivered with Offering Circular
None
B-1
SCHEDULE C
FORM OF LETTER TO BE DELIVERED BY INSTITUTIONAL ACCREDITED INVESTORS
--------------------------------------------------------------------
HCC Industries Inc.
c/o IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Finance Trust Services
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇▇▇▇ LLC
as Initial Purchasers
c/o Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
We are delivering this letter in connection with an offering of
$90,000,000 principal amount of 10 3/4% Senior Subordinated Notes due 2007 (the
"Securities") of HCC Industries Inc., a Delaware corporation (the "Company"),
all as described in the Offering Circular (the "Offering Circular") relating to
the offering.
We hereby confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2) or (3) under the Securities Act of 1933, as amended (the
"Securities Act"), or an entity in which all of the equity owners are accredited
investors within the meaning of Rule 501(a)(1), (2) or (3) under the Securities
Act (an "Institutional Accredited Investor");
(ii) (A) any purchase of the Securities by us will be for our own
account or for the account of one or more other Institutional Accredited
Investors or a fiduciary for the account of one or more trusts, each of which is
an "accredited investor" within the meaning of Rule 501(a)(7) under the
Securities Act and for each of which we exercise sole investment discretion or
(B) we are a "bank", within the meaning of Section 3(a)(2) of the Securities
Act, or a "savings and loan association" or other institution described in
Section 3(a)(5)(A) of the Securities Act, that is acquiring the Securities as
fiduciary for the account of one or more institutions for which we exercise sole
investment discretion;
(iii) in the event that we purchase any of the Securities, we will
acquire Securities having a minimum purchase price of not less than $250,000 for
our own account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of purchasing the
Securities;
(v) we are not acquiring the Securities with a view to distribution
thereof or with any present intention of offering or selling any of the
Securities, except inside the United States in accordance with Rule 144A under
the Securities Act or outside the United States in accordance with Regulation S
under the Securities Act, as provided below; provided that the disposition of
our property and the property of any accounts for which we are acting as
fiduciary shall remain at all times within our control; and
(vi) we have received a copy of the Offering Circular relating to
the offering of the Securities and acknowledge that we have had access to such
financial and other information, and have been afforded the opportunity to ask
such questions of representatives of the Company and receive answers thereto, as
we deem necessary in connection with our decision to purchase the Securities;
and
(vii) we are not an "affiliate" (as defined in Rule 144 under the
Securities Act) of the Company or acting on behalf of an affiliate of the
Company.
We understand that the Securities are being offered in a transaction
not involving any public offering within the United States within the meaning of
the Securities Act and that the Securities have not been and will not be
registered under the Securities Act, and we agree, on our own behalf and on
behalf of each account for which we acquire any Securities, that if in the
future we decided to resell, pledge or otherwise transfer such Securities, such
Securities may be offered, resold, pledged or otherwise transferred only (i)
inside the United States to a person whom we reasonably believe is a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act) in a
transaction meeting the requirements of Rule 144A, (ii) in a transaction meeting
the requirements of Rule 904 under the Securities Act; (iii) pursuant to an
exemption from registration under the Securities Act provided by Rule 144
thereunder (if available); or (iv) pursuant to an effective registration
statement under the Securities Act, in each of cases (i) through (iv) above, in
accordance with any applicable securities laws of any state of the United States
or any other applicable jurisdiction. We agree to notify any Purchaser, pledgee
or transferee of such Securities of the restrictions referred to in clauses (i)
through (iv) above. We understand that the registrar and transfer agent for the
Securities will not be required to accept for registration of transfer any
Securities acquired by us, except upon presentation of evidence satisfactory to
the Company and the transfer agent that the foregoing restrictions on transfer
have been complied with. We further understand that any Securities acquired by
us will be in the form of definitive physical certificates and that such
certificates will bear a legend reflecting the substance of this paragraph.
We acknowledge that you, the Company and others will rely upon our
confirmation, acknowledgments and agreements set forth herein, and we agree to
notify you promptly if any of our representations or warranties herein ceases to
be accurate and complete.
THIS LETTER 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.
Date: ________________________
_________________________________
(Name of Purchaser)
By: __________________________
Name:
Title:
Address:
C-2
