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Exhibit 4.2
PLAINWELL INC.
$130,000,000
11% Senior Subordinated Notes
Due 2008
Purchase Agreement
March 3, 1998
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
SALOMON BROTHERS INC
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
PLAINWELL INC. (the "Company"), a Delaware corporation, proposes,
subject to the terms and conditions stated herein, to issue and sell to Bear,
▇▇▇▇▇▇▇ & Co. Inc. and Salomon Brothers Inc (the "Initial Purchasers"), an
aggregate of $130 million principal amount of the Company's 11% Senior
Subordinated Notes Due 2008 (the "Notes"). The Notes will be issued pursuant to
an Indenture (the "Indenture") to be dated as of the Closing Date (as defined)
between the Company and United States Trust Company of New York, as trustee (in
such capacity, the "Trustee").
The Company has prepared a preliminary offering memorandum dated
February 13, 1998 (the "Preliminary Offering Memorandum") and a final offering
memorandum dated March 3, 1998 (the "Offering Memorandum") relating to and
summarizing the terms of the Notes. The Company hereby confirms that it has
authorized the use of the Preliminary Offering Memorandum and the Offering
Memorandum in connection with the offer and sale of the Notes by the Initial
Purchasers in the manner and to the persons contemplated herein and therein (the
"Offering"). Unless stated to the contrary, all references herein to the
Offering Memorandum are to the Offering Memorandum at the date hereof and are
not meant to include any amendment or supplement thereto subsequent to the date
hereof.
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The Notes are being issued and sold in connection with a series of
transactions, including (i) the purchase by the Company, pursuant to an
Agreement of Purchase and Sale dated as of January 22, 1998 by and among ▇▇▇▇ &
▇▇▇▇▇▇, Inc., ▇▇▇▇ & Talbot, WIS., Inc. (collectively, "▇▇▇▇ & ▇▇▇▇▇▇"),
Plainwell Holding Company ("Holdings") and the Company (the "Tissue Business
Purchase Agreement"), of the Tissue Business (as defined in the Tissue Business
Purchase Agreement) from ▇▇▇▇ & Talbot (the "Tissue Business Acquisition"), (ii)
an equity contribution of approximately $25 million from Holdings to the Company
(the "Equity Contribution") and (iii) the establishment of a revolving line of
credit pursuant to a Credit Agreement to be dated as of the Closing Date between
the Company and Sanwa Business Credit Corporation ("Sanwa") (the "New Credit
Facility").
As used in this agreement, (i) "Tissue Business Acquisition
Documents" shall mean, collectively, the Tissue Business Purchase Agreement and
all documentation relating to the Tissue Business Acquisition, (ii) "Equity
Contribution Documents" shall mean, collectively, all documents related to the
Equity Contribution and (iii) "Transaction Documents" shall mean, collectively,
this Agreement, the Indenture, the Exchange and Registration Rights Agreement
(as defined), the Tissue Business Acquisition Documents, the Equity Documents
and the New Credit Facility.
None of the Notes have been registered under the Securities Act of
1933, as amended (the "Securities Act"), and the Notes are being offered and
sold in reliance on exemptions from or in transactions not subject to the
registration requirements of the Securities Act, including sales by the Initial
Purchaser made outside the United States in reliance on Regulation S under the
Securities Act ("Regulation S") and in the United States to "qualified
institutional buyers" ("QIBs") as defined in, and in reliance on, Rule 144A
under the Securities Act ("Rule 144A").
The Initial Purchasers and other holders of the Notes will have,
with respect to the Notes, the registration rights set forth in the Exchange and
Registration Rights Agreement, dated as of the Closing Date, in substantially
the form of Exhibit A hereto (the "Exchange and Registration Rights Agreement").
Pursuant to the Exchange and Registration Rights Agreement, the Company will
agree, among other things, to file with the Securities and Exchange Commission
(the "Commission") under the circumstances set forth therein (i) a registration
statement under the Securities Act with respect to which Notes (the "Registered
Notes") issued under the Indenture will be offered in exchange for the then
outstanding Notes and to cause such registration statement to be declared
effective and (ii) under certain circumstances, a shelf registration statement
pursuant to Rule 415 under the Securities Act relating to the resale of the
Notes by holders thereof and to cause such shelf registration statement to be
declared effective.
For purposes of this Agreement, all references to the "Company"
shall mean the Company after giving effect to the Tissue Business Acquisition
and the Equity Contribution.
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1. Representations and Warranties of the Company. The Company represents and
warrants to the Initial Purchasers that:
a. The Preliminary Offering Memorandum as of its date did not and the
Offering Memorandum as of the date hereof and as of the Closing Date
does not contain and will not contain any untrue statement of a
material fact or omit to state a material fact (except, in the case
of the Preliminary Offering Memorandum, for pricing terms and other
pricing related terms intentionally left blank) necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the
representations and warranties set forth in this paragraph (a) do
not apply to statements or omissions in the Offering Memorandum
based upon the information referred to in Section 7(b) furnished to
the Company in writing by, or on behalf of, the Initial Purchasers
expressly for use therein.
b. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware
with full corporate power and authority to carry on its business as
it is currently being conducted and to own, lease and operate its
properties, and is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not, individually or in the aggregate, have a
material adverse effect (financial or otherwise) on the condition,
results of operations, business or prospects of the Company.
Plainwell Paper Company ("Plainwell"), a --------- Michigan
corporation and a subsidiary of Holdings, has been duly incorporated
and is, and immediately prior to its merger with and into the
Company (the "Merger") on the Closing Date will be, validly existing
as a corporation in good standing under the laws of the State of
Michigan with full corporate power and authority to carry on its
business and to own, lease and operate its properties and is, and
immediately prior to the Merger will be, duly qualified and in good
standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property required such qualification, except where the
failure to be so qualified would not, individually or in the
aggregate, have a material adverse effect (financial or otherwise)
on the condition, results of operations, business or prospects of
Plainwell. The business of the Company is, and immediately prior to
the Merger will be, conducted only through Plainwell.
c. The Merger has been duly authorized by all necessary corporate
action on the part of the Company and Plainwell, including, to the
extent required by applicable law, all action by their respective
boards of directors and stockholders.
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The Merger will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default (or an event which, with notice or lapse of time or both,
would constitute such a default) under, any indenture, mortgage,
deed or trust, loan agreement or other agreement or instrument to
which the Company or Plainwell is a party or by which either of them
is bound or to which any of the property or assets of either of them
is subject, (ii) result in any violation of the provisions of the
certificate of incorporation, bylaws or other governing documents of
the Company or Plainwell, (iii) result in the violation of any law
or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
Plainwell or any of their properties or assets or (iv) result in the
creation or imposition of any lien, charge, claim or encumbrance
upon any property or asset of the Company or Plainwell.
d. The Notes have been duly authorized by the Company for issuance and
sale pursuant to this Agreement and, when executed and authenticated
in accordance with the provisions of the Indenture and delivered to
the Initial Purchaser against payment therefor as provided by this
Agreement, the Notes will be entitled to the benefits of the
Indenture, and will be valid and binding obligations of the Company
enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
e. The Registered Notes have been duly authorized by the Company for
issuance and sale pursuant to this Agreement and the Exchange and
Registration Rights Agreement and, when executed and authenticated
in accordance with the provisions of the Indenture and delivered to
the holders of the Notes being exchanged therefor, the Registered
Notes will be entitled to the benefits of the Indenture, and will be
valid and binding obligations of the Company enforceable in
accordance with their terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency, fraudulent conveyance or
similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
f. This Agreement has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company
enforceable in accordance with its terms except as (i) rights to
indemnity and contribution hereunder may be limited by applicable
law, (ii) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally and (iii) rights of acceleration and the
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availability of equitable remedies may be limited by equitable
principles of general applicability.
g. Each of the Indenture, the Exchange and Registration Rights
Agreement and the Credit Agreement has been duly authorized by the
Company and, when executed and delivered by the Company on the
Closing Date, will be a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
h. Each of the Tissue Business Acquisition Documents and the Equity
Contribution Documents has been duly authorized and executed by the
Company and are valid and binding agreements of the Company
enforceable in accordance with its terms. The execution, delivery
and performance of the Tissue Business Acquisition Documents and the
Equity Contribution Documents and compliance by the Company with all
the provisions thereof and the consummation of the transactions
contemplated thereby will not require any consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body which consent has
not been received and will not conflict with or constitute a breach
of any of the terms or provisions of, or a default under, the
certificate of incorporation or by-laws of the Company or any
agreement, indenture or other instrument to which it is a party or
by which it or its property is bound, or violate or conflict with
any laws, administrative regulations or rulings or court decrees
applicable to the Company or its property.
i. The Notes conform as to legal matters to the description thereof
contained in the Offering Memorandum.
j. The Company is not in violation of its certificate of incorporation
or by-laws or in default (and no condition exists which, with
notice or lapse of time or both, would constitute a default) in the
performance of any obligation, agreement or condition contained in
any bond, debenture, note or any other evidence of indebtedness or
in any other agreement, indenture or instrument material to the
conduct of the business of the Company to which the Company is a
party or by which it or its property is bound, in each case other
than such violation or default as would not have a material adverse
effect (financial or otherwise) on the condition, results of
operations, business or prospects of the Company.
k. The execution, delivery and performance of this Agreement, the
Indenture and the Notes and compliance by the Company with all the
provisions hereof and
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thereof, as the case may be, and the consummation of the
transactions contemplated hereby and thereby will not require any
consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body
which consent has not been received (except as such may be required
under the securities or Blue Sky laws of the various states or
jurisdictions outside the United States), and will not conflict with
or constitute a breach of any of the terms or provisions of, or a
default under, the certificate of incorporation or by-laws of the
Company or any agreement, indenture or other instrument to which it
is a party or by which it or its property is bound, or violate or
conflict with any laws, administrative regulations or rulings or
court decrees applicable to the Company or its property.
l. The execution, delivery and performance of the Exchange and
Registration Rights Agreement and the Registered Notes and
compliance by the Company with all the provisions thereof and the
consummation of the transactions contemplated thereby will not
require any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental
body (except as such may be required under the Securities Act, the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act")
or the securities or Blue Sky laws of the various states or
jurisdictions outside the United States), and will not conflict with
or constitute a breach of any of the terms or provisions of, or a
default under, the certificate of incorporation or by-laws of the
Company or any agreement, indenture or other instrument to which it
is a party or by which it or its property is bound, or violate or
conflict with any laws, administrative regulations or rulings or
court decrees applicable to the Company or its property.
m. Except as set forth in the Offering Memorandum, there are no legal
or governmental proceedings pending to which the Company is a party
or to which its property is the subject that would be required to be
disclosed by Item 103 of Regulation S-K promulgated by the
Commission or otherwise, and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated.
n. Except as would not have a material adverse effect (financial or
otherwise) on the condition, results of operations, business or
prospects of the Company or otherwise be required to be disclosed in
a registration statement under the Securities Act, or as disclosed
in the Offering Memorandum, (i) the Company is not in violation of
any federal, state or local laws and regulations relating to
pollution or protection of human health or the environment or the
use, treatment, storage, disposal, transport or handling, emission,
discharge, release or threatened release or toxic or hazardous
substances, materials or wastes, or petroleum and petroleum products
("Materials of Environmental Concern") (collectively,
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"Environmental Laws"), including, without limitation, noncompliance
with or lack of any permits or other environmental authorizations,
and (ii) (A) the Company has not received any communication from any
person or entity alleging any violation of or noncompliance with any
Environmental Laws, and there are no past or present circumstances
that may lead to any such violation in the future, (B) there is no
pending or threatened claim, action, investigation or notice by any
person or entity against the Company or against any person or entity
for whose acts or omissions the Company is liable, either
contractually or by operation of law, alleging liability for
investigatory, cleanup, or governmental response costs, or natural
resources or property damages, or personal injuries, attorney's fees
or penalties relating to any Materials of Environmental Concern or
any violation or potential violation, of any Environmental Law
(collectively, "Environmental Claims"), and C) there are no existing
actions, activities, circumstances, conditions, events or incidents
that could form the basis of any such Environmental Claim.
o. Except as disclosed in the Offering Memorandum, the Company has such
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("Permits"), including, without limitation,
under any applicable Environmental Laws, as are necessary to own,
lease and operate its properties and to conduct its business; the
Company has fulfilled and performed all of its obligations with
respect to such Permits and no event has occurred which allows, or
after notice or lapse of time would allow, revocation or termination
thereof which might have a material adverse effect (financial or
otherwise) on the condition, results of operations, business or
prospects of the Company and such Permits contain no restrictions
that materially interfere with the business or operations of the
Company as currently conducted.
p. Except as otherwise set forth in the Offering Memorandum or such as
are not material (financial or otherwise) to the condition, results
of operations, business or prospects of the Company, the Company has
good and marketable title, free and clear of all liens, claims,
encumbrances and zoning, use and other restrictions, except liens
for taxes not yet due and payable, to all real and other property
and assets described in the Offering Memorandum as being owned by it
and the Company enjoys peaceful and undisturbed possession of all
such real and other property and other assets with such liens,
claims, encumbrances and restrictions as do not materially interfere
or threaten to materially interfere with the use made or proposed to
be made by the Company. All leases to which the Company is a party
are valid and binding and no default by the Company, or to the
knowledge of the Company, by any other party, has occurred or is
continuing thereunder, which might result in any material adverse
effect (financial or otherwise) on the condition, results of
operations, business or prospects of the
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Company and the Company enjoys peaceful and undisturbed possession
under all such leases with such exceptions as do not materially
interfere with the use made or proposed to be made by the Company.
q. The Company maintains, with insurers of recognized standing,
reasonably adequate insurance against property and casualty loss,
general liability, business interruption and such other losses and
risks, in each case, in such amounts as are prudent and customary in
the business in which it is engaged.
r. Each of Ernst & Young LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP are independent
public accountants with respect to the Company within the meaning of
the Securities Act.
s. Each of (i) the financial statements of the Consumer Products
Division (as defined in the Offering Memorandum), including the
notes thereto, contained in the Offering Memorandum and (ii) the
financial statements of Plainwell, including the notes thereto,
contained in the Offering Memorandum present fairly the respective
financial positions, results of operations and cash flows of the
Consumer Products Division and Plainwell, as of the respective dates
and for the respective periods to which they apply, and have been
prepared in accordance with GAAP and the requirements of Regulation
S-X promulgated by the Commission that would be applicable if the
Offering Memorandum were a prospectus included in a registration
statement on Form S- 1 filed under the Securities Act. The summary
and selected historical financial data included in the Offering
Memorandum are accurately presented and have been derived from, and
prepared on a basis consistent with, the respective financial
statements and the books and records of the Consumer Products
Division and Plainwell. The unaudited pro forma consolidated
financial information, including the notes thereto, contained in the
Offering Memorandum (i) comply with the rules and guidelines of the
Commission with respect to pro forma financial statements, (ii) have
been prepared on a basis consistent with the respective financial
statements of the Consumer Products Division and Plainwell, except
for the pro forma adjustments specified therein and (iii) are based
on good faith, reasonable estimates and assumptions of the Company.
The summary unaudited pro forma consolidated financial data included
in the Offering Memorandum are accurately presented and have been
derived from, and prepared on a basis consistent with, such
unaudited pro forma consolidated financial information. All other
financial and statistical data relating to the Company, Plainwell
and the Consumer Products Division included in the Offering
Memorandum are accurately presented and are derived from, and
prepared on a basis consistent with, the respective financial
statements and the books and records of the Consumer Products
Division and Plainwell.
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t. Each of the Company and Holdings has an authorized, issued and
outstanding capitalization as set forth in the Offering Memorandum.
All of the outstanding shares of capital stock of each of the
Company and Plainwell have been duly authorized and validly issued,
are fully paid and nonassessable and are owned of record and
beneficially by Holdings.
u. There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens related
to or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of, or other ownership interest in, the
Company, Plainwell or Holdings except as disclosed in the Offering
Memorandum.
v. Except as disclosed in the Offering Memorandum, there are no
business relationships or related party transactions that would be
required to be disclosed therein by Item 404 of Regulation S-K
promulgated by the Commission.
w. There is (i) no unfair labor practice complaint pending against the
Company or, to the best knowledge of the Company, threatened against
it, before the National Labor Relations Board or any state or local
labor relations board, and no grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is
pending against the Company or, to the best knowledge of the
Company, threatened against it, and (ii) no strike, labor dispute,
work rule or other slowdown, job action or stoppage pending against
the Company or, to the best knowledge of the Company, threatened
against it except for such matters specified in clause (i) or (ii)
above, which, singly or in the aggregate, would not have a material
adverse effect (financial or otherwise) on the condition, results of
operations, business or prospects of the Company.
x. The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in
accordance with management's general or specific authorization and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
y. All tax returns required to be filed by the Company in any
jurisdiction have been filed, other than those filings being
contested in good faith, and all taxes, including withholding taxes,
penalties and interest, assessments, fees and
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other charges due pursuant to such returns or pursuant to any
assessment received by the Company have been paid, other than those
being contested in good faith and for which adequate reserves,
trademarks, service marks, trade names, licenses, copyrights and
proprietary or other confidential information currently employed by
them in connection with its business, and the Company has not
received any notice of infringement of or conflict with asserted
rights of any third party with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in any material adverse
effect (financial or otherwise) on the condition, results of
operations, business or prospects of the Company except as described
in the Offering Memorandum.
z. The Company does not intend to incur debts beyond its ability to pay
such debts as they mature, taking into account the timing and the
amounts of cash to be received by the Company and the timing and the
amounts of cash to be payable on or in respect of the Company's
indebtedness.
aa. The Notes are eligible for resale pursuant to Rule 144A and, when
issued, will not be of the same class (within the meaning of Rule
144A(d)(3)) as any securities (i) listed on a national securities
exchange registered under Section 6 of the United States Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or (ii)
quoted on any United States "automated inter-dealer quotation
system" (as such term is used in the Exchange Act) in the United
States.
bb. Neither the Company, any of its affiliates (as used in this
Agreement, such term shall have the meaning set forth in Rule 501(b)
under the Securities Act) nor any person authorized to act on behalf
of any such person (it being understood that no representation is
given as to the Initial Purchasers and their respective affiliates)
has, directly or indirectly, (i) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any security
(as defined in the Securities Act) which is or could be integrated
with the sale of the Notes in a manner that would require the
registration of any of the Notes under the Securities Act or (ii)
engaged in any form of general solicitation or general advertising
(as such terms are defined in Rule 502(c) under the Securities Act)
in connection with the Offering.
cc. None of the Company, any of its affiliates or any person acting on
its behalf (it being understood that no representation is given as
to the Initial Purchasers and their respective affiliates) has
engaged in any directed selling efforts within the meaning of Rule
902 under the Securities Act with respect to any Notes to be sold in
reliance on Regulation S, and each of the Company, its affiliates
and persons acting on its behalf (it being understood that no
representation is given as to the Initial Purchasers and their
respective affiliates)
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has complied with Rule 903 under the Securities Act with respect to
any Notes to be sold in reliance on Regulation S.
dd. Subject to compliance by the Initial Purchasers with the
representations, warranties and covenants set forth in Section 2 and
the procedures set forth in Section 3 hereof, it is not necessary in
connection with the offer, sale and delivery of the Notes to the
Initial Purchasers in the manner contemplated by this Agreement and
the Offering Memorandum to register the Notes under the Securities
Act or to qualify the Indenture under the Trust Indenture Act.
ee. The Company is not, or upon consummation of the transactions
contemplated under this Agreement, the Exchange and Registration
Rights Agreement and the Indenture will be, an "investment company"
or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act") or be subject to registration under the
Investment Company Act.
ff. All of the representations and warranties of the Company contained
in the Tissue Business Purchase Agreement and the Equity
Contribution Documents were true and correct on the date thereof and
are true and correct on the hereof, except where the inaccuracy of
such statements on the date hereof has been addressed in and
corrected by information disclosed in the Offering Memorandum and
would not reasonably be expected to have a material adverse effect
(financial or otherwise) on the condition, results of operations,
business or prospects of the Company.
gg. The execution and delivery of this Agreement, the Exchange and
Registration Rights Agreement and the Indenture and the sale of the
Notes to the Initial Purchasers or by the Initial Purchasers to
other purchasers of the Notes will not involve any prohibited
transaction within the meaning of Section 406 of the employee
Retirement Income Security Act of 1974, as amended, or the rules and
regulations promulgated thereunder ("ERISA") or Section 4975 of the
Internal Revenue Code of 1986, as amended, or the rules and
regulations promulgated thereunder (the "Code"). The representation
made by the Company in the preceding sentence is made in reliance
upon and subject to the accuracy of, and compliance with, the
representations and covenants made or deemed made by purchasers of
the Notes (other than the Initial Purchasers) as set forth in the
Offering Memorandum under the section entitled "Notice to
Investors."
hh. The Company has no equity or similar interest in any corporation,
partnership, limited liability company, joint venture or other
entity.
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2. Purchase, Sale and Delivery of the Notes. (a) Subject to the terms and
conditions herein set forth and on the basis of the representations,
warranties, covenants and agreements herein contained, the Company agrees
to sell to the Initial Purchasers, and the Initial Purchasers agree to
purchase, severally and not jointly, from the Company, the aggregate
principal amount of Notes set forth opposite such Initial Purchasers'
names in Schedule I hereto at a purchase price equal to 97.000% of the
principal amount thereof.
(b) Subject to the terms and conditions herein set forth, payment of
the purchase price for, and delivery of, the Notes shall be made at the
offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at
9:00 a.m. (New York time), unless postponed as a result of the failure of
the Company to satisfy any of the conditions set forth in Section 6
hereof, on March 6, 1998 or at such other time or on such other date as
shall be mutually agreed in writing between the Company and the Initial
Purchasers (the time and date of such payment and delivery being herein
called the "Closing Date"). At least 24 hours prior to the Closing Date,
the Company shall execute and deliver the Notes for authentication in
definitive form and in such denominations and registered in such names as
the Initial Purchasers may request in writing not less than 36 hours prior
to the Closing Date. The Notes shall be represented by one permanent
global note, which may be subdivided ("Global Notes"), in definitive form,
registered in the name of Cede & Co., as nominee of The Depository Trust
Company ("DTC"), for the account or accounts of participants in the DTC
system (including ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System ("Euroclear") and Cedel Bank,
Societe Anonyme ("Cedel Bank"), as the case may be) having an aggregate
principal amount corresponding to the aggregate principal amount of the
Notes purchased by the Initial Purchasers hereunder, which will be
deposited by or on behalf of the Company with DTC or its designated
custodian. Against delivery of the Notes to the Initial Purchasers, which
will be accomplished by causing DTC to credit the account of the Initial
Purchaser, the Initial Purchasers shall pay or cause to be paid to the
Company the purchase price for the Notes, which payment shall be made to
the Company by wire transfer or certified or official bank check or checks
drawn in Federal funds or similar immediately available funds to the order
of the Company.
3. Subsequent Offers and Resales of the Notes. The Initial Purchasers and the
Company hereby establish and agree to observe the following procedures in
connection with the offer and sale of the Notes:
(a) Each Initial Purchaser has advised the Company that it proposes
to offer the Notes for resale upon the terms and conditions set forth in
this Agreement and the Offering Memorandum. Each Initial Purchaser
understands that the Notes have not been and, other than pursuant to the
Company's obligations under the Exchange and Registration Rights
Agreement, will not be registered under the Securities Act. Each Initial
Purchaser agrees that it will not take, and acknowledges that the Company
has not
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taken, any action that would permit a public offering of the Notes in any
jurisdiction and further agrees that, with respect to the offer or sale of
any Notes or the delivery or distribution of any Offering Memorandum, it
will comply with applicable laws and regulations in any jurisdiction in
which it acquires, offers, sells or delivers the Notes or distributes the
Offering Memorandum to which it is otherwise subject.
(b) Each Initial Purchaser represents and warrants that (i) it is a
"qualified institutional buyer" within the meaning of Rule 144A and (ii)
that neither it nor any of its affiliates nor any person acting on behalf
of any such person has engaged or will engage in any general solicitation
or general advertising, as such terms are defined in Rule 502(c) under the
Securities Act, in connection with the offer or sale of the Notes.
(c) Each Initial Purchaser confirms that neither it nor its
affiliates nor any person acting on behalf of any such person has engaged
or will engage in any "directed selling efforts" (as such term is defined
in Regulation S) with respect to the Notes and that it has complied and
will comply with the offering restrictions requirements of Regulation S
with respect to the Notes.
4. Agreements of the Company. The Company covenants and agrees with the
Initial Purchasers that:
(a) The Company will make no further amendment or supplement to the
Offering Memorandum except as permitted herein; and if at any time prior
to the earlier of (i) the completion of the distribution of the Notes by
the Initial Purchasers or (ii) 120 days after the Closing Date any event
shall have occurred as a result of which the Offering Memorandum, as then
amended or supplemented, would, in the judgment of the Initial Purchasers
or the Company, include an 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,
each Initial Purchaser or the Company, as the case may be, will promptly
notify the other and the Company will promptly prepare and deliver to the
Initial Purchasers an amendment or supplement that will correct such
untrue statement or omission.
(b) The Company shall advise the Initial Purchasers promptly and, if
requested, will confirm such advice in writing, (i) of any proposal to
amend or supplement the Offering Memorandum and will afford the Initial
Purchasers a reasonable opportunity to comment on any such proposed
amendment or supplement, (ii) of receipt by the Company of any
notification with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the initiation or threat of any
proceeding for that purpose and (iii) of any downgrading in the rating
accorded the Notes by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities
Act, an "NRSRO"), or any public announcement that any such organization
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has under surveillance or review its rating of the Notes (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading of such rating) as soon as the
Company learns of any such downgrading or public announcement.
(c) The Company will promptly deliver to the Initial Purchasers,
without charge, such number of copies of the Offering Memorandum and all
amendments of and supplements thereto as the Initial Purchasers may
reasonably request.
(d) Whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding and so long as the
Indenture so requires, the Company will (i) furnish holders of the Notes
(A) all quarterly and annual financial information that would required to
be contained in a filing with the Commission on Forms 10-Q and 10-K if the
Company were required to file such Forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
and, with respect to the annual information only, a report thereon by the
Company's certified independent accountants, and (B) all financial
information that would be required to be included in a Form 8-K filed with
the Commission if the Company were required to file such reports, and (ii)
file a copy of all such information and reports with the Commission for
public availability (unless the Commission will not accept such a filing)
and to make such information available to investors or potential investors
in the Company's debt securities who request it in writing.
(e) During the period referred to in paragraph (d), the Company will
furnish to the Initial Purchasers as soon as available a copy of each
report or other publicly available information of the Company mailed to
the security holders of the Company or filed with the Commission and such
other publicly available information concerning the Company as the Initial
Purchasers may reasonably request.
(f) Without the prior consent of the Bear, ▇▇▇▇▇▇▇ & Co. Inc., prior
to the expiration of 180 days after the date of the Offering Memorandum
the Company will not offer, sell, contract to sell or otherwise dispose of
any note or debenture similar to the Notes having a maturity of more than
one year (other than the Registered Notes).
(g) The Company shall do and perform, or cause to be done or
performed, all things required or necessary to be done and performed under
this Agreement by the Company prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Notes.
(h) The Company shall use its best efforts in cooperation with the
Initial Purchasers to (i) permit the Notes to be eligible for clearance
and settlement through the facilities of DTC, Euroclear and Cedel Bank and
(ii) include quotation of the Notes on the
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Private Offerings, Resales and Trading through Automated Linkages
("PORTAL") Market of the National Association of Securities Dealers, Inc.
(i) The Company will use its best efforts to take such actions as
are necessary to enable Standard & Poor's Corporation ("S&P") and ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's") to provide their respective initial
credit ratings on the Notes.
(j) None of the Company, any of its affiliates or any person acting
on behalf of any of them (it being understood that no representation is
given as to the conduct of the Initial Purchasers and their respective
affiliates) will solicit any offer to buy or offer or sell the Notes by
means of any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act, except in either case as contemplated by the Exchange and
Registration Rights Agreement.
(k) None of the Company, any of its affiliates or any person acting
on behalf of any of them (it being understood that no representation is
given as to the conduct of the Initial Purchasers and their respective
affiliates) will, directly or indirectly, offer, sell, solicit offers to
buy or sell or otherwise negotiate in respect of any security (as defined
in the Securities Act) which will be integrated with the sale of any of
the Notes in a manner that would require the registration of any of the
Notes under the Securities Act.
(l) During the period of two years after the Closing Date (or such
other period as the Notes in general constitute "restricted securities"
within the meaning of Rule 144 under the Securities Act) it will, upon
request, furnish to the Initial Purchasers and any holder of Notes a copy
of the restrictions on transfer applicable to the Notes.
(m) The Company will not, and will not permit any of its affiliates
to, resell any of the Notes that have been acquired by any of them and
that constitute "restricted securities" within the meaning of Rule 144 of
the Securities Act, except outside the United States in accordance with
Regulation S, pursuant to an exemption from the registration requirements
of the Securities Act or in a transaction registered under the Securities
Act.
(n) None of the Company or any of its affiliates or any person
acting on its or their behalf (it being understood that no representation
is given as to the conduct of the Initial Purchasers and their respective
affiliates) will engage in any directed selling efforts with respect to
any Notes to be sold in reliance on Regulation S, and the Company, each of
its affiliates and each person acting on its or their behalf (it being
understood that no representation is given as to the conduct of the
Initial Purchasers and their respective
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affiliates) will comply with the Rule 903 of the Securities Act with
respect to any Notes to be sold in reliance on Regulation S.
(o) 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 Notes or attempt to induce any person to purchase any Notes, and
neither the Company nor any of its affiliates will make bids or purchase
Notes for the purpose of creating actual, or apparent, active trading in,
or of raising the price of, the Notes.
(p) Each of the Notes will bear a legend substantially in the form
contained in the section captioned "Notice to Investors" in the Offering
Memorandum for the time period and upon the other terms stated therein;
provided, however, that such legend will be removed upon request to the
Trustee or the security registrar under the Indenture after such Notes are
resold pursuant to a registration statement that has been declared
effective by the Commission under the Securities Act.
(q) For so long as any of the Notes constitute "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act,
the Company will make available to any holder of the Notes or to any
prospective purchaser of the Notes designated by any holder, upon request
of such holder or prospective purchaser, information required to be
provided by Rule 144A(d)(4) under the Securities Act if at the time of
such request the Company is not subject to the reporting requirements
under Section 13 or 15(d) of the Exchange Act.
(r) The Company will use the proceeds from the sale of the Notes in
the manner described in the Offering Memorandum under the caption "Use of
Proceeds."
(s) The Company will comply with the agreements in the Transaction
Documents to which it is a party.
5. Expenses. The Company will pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 10 hereof, including all costs and expenses
incident to (a) the printing or other production of documents with respect
to the transactions, including all costs of printing any Preliminary
Offering Memorandum and the Offering Memorandum, (b) all arrangements
relating to the delivery to the Initial Purchasers of copies of the
foregoing documents, (c) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company, (d)
preparation, issuance and delivery to the Initial Purchasers of any
certificates evidencing the Notes, (e) the qualification of the Notes
under state or foreign securities or Blue Sky laws, including filing fees
and
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reasonable fees and disbursements of counsel for the Initial Purchaser
relating thereto, (f) the fees paid to rating agencies in connection with
the Notes, (g) the quotation of the Notes on PORTAL, (h) "roadshow" travel
and other expenses incurred in connection with the marketing and sale of
the Notes, (i) the fees and expenses of the Trustee and any agent of the
Trustee and the fees and disbursements of counsel for the Trustee and (j)
the costs and charges of DTC, Euroclear and Cedel Bank.
6. Conditions to Initial Purchasers' Obligations. The obligation of the
Initial Purchasers to purchase the Notes under this Agreement is subject
to the satisfaction of each of the following conditions:
a. All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date.
b. Subsequent to the execution and delivery of this Agreement and prior
to the Closing Date, there shall not have been any downgrading, nor
shall any notice have been given of any intended or potential
downgrading in the rating accorded any of the Company's securities
by any NRSRO, or any public announcement that any such organization
has under surveillance or review its rating of any such securities
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading of such
rating).
c. (i) Since the date of the latest balance sheet included in the
Offering Memorandum, there shall not have been any material adverse
change, or any development involving a prospective material adverse
effect (financial or otherwise) on the condition, results of
operations, business or prospects of the Company, whether or not
arising in the ordinary course of business, except as otherwise
described in the Offering Memorandum, (ii) since the date of the
latest balance sheet included in the Offering Memorandum there shall
not have been any material change, or any development involving a
prospective material adverse change, in the capital stock or in the
long-term debt of the Company from that set forth in the Offering
Memorandum, except as otherwise described in the Offering
Memorandum, (iii) the Company shall have no liability or obligation,
direct or contingent, which is material to the Company, other than
those set forth in the Offering Memorandum and (iv) on the Closing
Date the Initial Purchaser shall have received a certificate dated
the Closing Date, signed by ▇▇▇▇▇▇▇ ▇. New, in his capacity as
President and Chief Executive Officer of the Company, and by ▇▇▇
▇▇▇▇▇, in his capacity as Executive Vice President and Chief
Financial Officer of the Company, confirming the matters set forth
in paragraphs (a), (b) and (c) of this Section 6.
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d. The Initial Purchasers shall have received on the Closing Date an
opinion (in the form and substance satisfactory to the Initial
Purchasers and counsel for the Initial Purchasers), dated the
Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, to the
effect set forth in Exhibit B hereto.
e. The opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, described
in paragraph (d) above shall be rendered to the Initial Purchasers
at the request of the Company and shall so state therein.
f. The Initial Purchasers shall have received the opinion of Fried
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for ▇▇▇▇ & Talbot,
delivered to the Company pursuant to the Tissue Business Purchase
Agreement together with a letter from such firm confirming that the
Initial Purchasers may rely on such opinion as if they were the
addressees thereof.
g. The Initial Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇,
counsel for the Initial Purchasers, as to such matters as the
Initial Purchasers shall reasonably request.
h. The Initial Purchasers shall have received a letter or letters on
and as of the date of this Agreement (each, an "Initial Letter"), in
form and substance satisfactory to the Initial Purchasers, from
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and Ernst & Young LLP, each independent public
accountants, with respect to the financial statements and certain
financial information contained in the Offering Memorandum and a
letter or letters on and as of the Closing Date, in form and
substance satisfactory to the Initial Purchasers from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP and Ernst & Young LLP confirming the information
contained in the Initial Letter provided by such accountants.
i. The Company shall not have failed at or prior to the Closing Date to
perform or comply with any of the agreements herein contained and
required to be performed or complied with by the Company at or prior
to the Closing Date.
j. On or prior to the Closing Date, each of DTC, Euroclear and Cedel
Bank shall have accepted the Global Notes for clearance.
k. On or prior to the Closing Date, the Notes shall have been approved
for quotation on PORTAL.
l. The Company and the Trustee shall have entered into the Indenture
and the Initial Purchasers shall have received executed counterparts
thereof.
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m. The Company shall have entered into the Exchange and Registration
Rights Agreement and the Initial Purchasers shall have received
executed counterparts thereof.
n. The Tissue Business Acquisition and the Equity Contribution shall be
consummated prior to, or simultaneously with, the Closing of the
Offering on substantially the terms described in the Offering
Memorandum and the Initial Purchasers shall have received executed
counterparts of the Tissue Business Acquisition Documents and Equity
Contribution Documents and such other documentation as they deem
necessary to evidence the consummation thereof.
o. The Merger shall be consummated and become effective in accordance
with applicable law, including the laws of the States of Delaware
and Michigan, prior to, or simultaneously with, the Closing of the
Offering on substantially the terms described in the Offering
Memorandum and the Initial Purchasers shall have received such
documentation as they deem necessary to evidence the consummation
and effectiveness thereof.
p. The Company and Sanwa shall have entered into the New Credit
Facility and the Initial Purchasers shall have received executed
counterparts thereof.
7. Indemnification. (a) The Company agrees to indemnify and hold harmless
each Initial Purchaser and each person, if any, who controls any Initial
Purchaser within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred
(including, but not limited to, reasonable attorneys' fees and any and all
reasonable expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), jointly or severally, to which they or any of them may become
subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, liabilities, claims, damages or expenses (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Offering
Memorandum or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light of
the circumstances in which they were made, not misleading; provided,
however, that the Company will not be liable in any such case to the
extent, but only to the extent, that any such loss, liability, claim,
damage or expense arises out of or is based upon any such untrue statement
or omission, or alleged untrue statement or omission, made therein in
reliance upon and in conformity with written information referred to in
Section 7(b) furnished to the Company by, or on behalf of, any Initial
Purchaser expressly for use
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therein. This indemnity obligation will be in addition to any liability
which the Company may otherwise have, including under this Agreement.
(b) Each Initial Purchaser agrees to indemnify and hold harmless the
Company, each of the directors of the Company, each of the officers of the
Company, and each other person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, against any losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to attorneys' fees and any and all
reasonable expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), jointly or
severally, to which they or any of them may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Offering Memorandum or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein, in the
light of the circumstances in which they were made, not misleading, in each case
to the extent, but only to the extent, that any such loss, liability, claim,
damage or expense arises out of or is based upon any such untrue statement or
omission, or alleged untrue statement or omission, made therein in reliance upon
and in conformity with written information furnished to the Company by, or on
behalf of, any Initial Purchaser expressly for use therein; provided, however,
that in no case shall any Initial Purchaser be liable or responsible for any
amount in excess of the discount of the purchase price of the Notes granted to
such Initial Purchaser hereunder. The Company acknowledges that (i) the
statements set forth in the last paragraph of page iii of the Offering
Memorandum and (ii) the names of the Initial Purchasers as set forth in, and the
last paragraph of, the section captioned "Plan of Distribution" in the Offering
Memorandum constitute the only information furnished to the Company in writing
by, or on behalf of, any Initial Purchaser expressly for use in the Offering
Memorandum or in any amendment thereof or supplement thereto.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any claim or action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7 or otherwise). In case any such
claim or action is brought against any indemnified party, and such indemnified
party notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in the defense thereof, and
to the extent such indemnifying party may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from such
indemnified party to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own
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counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense thereof, (ii) the indemnifying parties
shall not have employed counsel to have charge of the defense thereof within a
reasonable time after notice of the commencement, or (iii) such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties (it being
understood, however, that the indemnifying party shall not be liable in any one
claim or action or separate but substantially similar or related claims or
actions in the same jurisdiction for the expenses of more than one separate
counsel and one additional local counsel). Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent (which
consent may not be unreasonably withheld). No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding 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 or claims that are the subject matter
of such proceeding.
8. Contribution. In order to provide for contribution in circumstances in
which the indemnification provided for in Section 7 hereof is for any
reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company
and the Initial Purchasers shall contribute to the aggregate losses,
claims, damages, liabilities and expenses of the nature contemplated by
such indemnification provision (including any investigation, legal and
other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but
after deducting any contribution received from persons who may also be
liable for contribution, including officers and directors of the Company
and persons who control the Company within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act) to which the
Company, on the one hand, and one or both of the Initial Purchasers, on
the other hand, may be subject as incurred in such proportions as is
appropriate to reflect the relative benefits received by the Company, on
the one hand, and one or both of the Initial Purchasers, on the other
hand, from the offering of the Notes or, if such allocation is not
permitted by applicable law or indemnification is not available as a
result of the indemnifying party not having received notice as provided in
Section 7 hereof, in such proportion as is appropriate to reflect not only
the relative benefits referred to above but also the relative fault of the
Company, on the one hand, and one or more of the Initial Purchasers, on
the other hand, in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative
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benefits received by the Company, on the one hand, and the Initial
Purchasers, on the other hand, shall be deemed to be in the same
proportion as (x) the total proceeds from the offering of the Notes (net
of discounts to the Initial Purchasers but before deducting expenses)
received by the Company and (y) the total discounts received by the
Initial Purchasers. The relative fault of the Company, on the one hand,
and of the Initial Purchasers, on the other hand, 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 on the one
hand, and the Initial Purchasers, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Initial
Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation or by
any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions
of this Section 8, no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Notwithstanding the provisions of this
Section 8, no Initial Purchaser shall be required to contribute any amount
in excess of the amount by which the total price at which the Notes
purchased by it were offered to investors exceeds the amount of any
damages that such Initial Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. For purposes of this Section 8, each person, if any, who
controls any Initial Purchaser within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act shall have the same
rights to contribution as such Initial Purchaser, and each person, if any,
who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act and each officer and
each director of the Company shall have the same right to contribution as
the Company. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be
made against another party or parties, notify each party or parties from
whom contribution may be sought, but the omission to so notify such party
or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 8
or otherwise, except to the extent that it has been prejudiced in any
material respect by the omission to so notify. No party shall be liable
for contribution with respect to any action or claim settled without its
consent (which consent may not be unreasonably withheld).
9. Default by an Initial Purchaser.
a. If one of the Initial Purchasers shall fail at the Closing Date to
purchase the Notes which it is obligated to purchase under this
Agreement (the "Defaulted Notes") and such Defaulted Notes do not
exceed in the aggregate 10% of the
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aggregate principal amount of the Notes, then the non-defaulting
Initial Purchaser shall purchase the Defaulted Notes.
b. Notwithstanding the foregoing, if the Defaulted Notes equal or
exceed in the aggregate 10% of the aggregate principal amount of the
Notes, then the non-defaulting Initial Purchaser shall have the
right, but shall not be obligated, within 48 hours after the Closing
Date to purchase all, but not less than all, of the Defaulted Notes
upon the terms herein set forth; provided that if the non-defaulting
Initial Purchaser shall not have elected to purchase the Defaulted
Notes within such 48-hour period then the Company shall be entitled
to a further 48-hour period within which to procure another party or
parties satisfactory to the non-defaulting Initial Purchaser to
purchase the Defaulted Notes on such terms.
No action taken pursuant to this Section 9 shall relieve the
defaulting Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, the non-defaulting Initial Purchaser or the
Company shall have the right to postpone the Closing Date for a period not
exceeding seven days in order to effect any required changes in the Offering
Memorandum or in any other documents or arrangements.
10. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Initial Purchasers and the
Company contained in this Agreement, including, without limitation, the
agreements contained in Sections 4 and 5, the indemnity agreements
contained in Section 7 and the contribution agreements contained in
Section 8, shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Initial Purchasers or any
controlling person thereof or by or on behalf of the Company, any of its
officers and directors or any controlling person thereof, and shall
survive delivery of and payment for the Notes to and by the Initial
Purchasers. The representations contained in Section 1 and the agreements
contained in Sections 2, 3, 5, 7 and 8 and this Section 10 shall survive
the termination of this Agreement, including termination pursuant to
Section 11.
11. Termination. (a) Bear, ▇▇▇▇▇▇▇ & Co. Inc. shall have the right to
terminate this Agreement at any time prior to the Closing Date:
(i) if any domestic or international event or act or occurrence has
materially disrupted, or in the Initial Purchasers' sole opinion will in
the immediate future materially disrupt, the United States, or
international securities markets;
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(ii) if trading on the New York Stock Exchange, the American Stock
Exchange or the National Association of Securities Dealers Automated
Quotation System shall have been suspended or materially limited;
(iii) if a banking moratorium has been declared by any United States
federal or New York State authority or if any new restriction materially
adversely affecting the distribution of the Notes shall have become
effective;
(iv) if the United States becomes engaged in hostilities or there is
an escalation of hostilities involving the United States or there is a
declaration of a national emergency or war by the United States; or
(v) if there shall have been any other change in political,
financial or economic conditions, if the effect of such event in the sole
judgment of the Initial Purchaser is to make it impracticable or
inadvisable to proceed with the offering, sale and delivery of the Notes
on the terms contemplated by the Offering Memorandum.
(b) Any notice of termination pursuant to this Section 11 shall be
made to the Company by telephone, telecopy or telex confirmed in writing by
letter.
(c) If this Agreement shall be terminated pursuant to any of the
provisions hereof, or if the sale of the Notes provided for herein is not
consummated because any condition to the obligations of the Initial Purchasers
set forth herein is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or comply
with the provision hereof, the Company will, subject to demand by the Initial
Purchasers, reimburse the Initial Purchasers for all out-of-pocket expenses
(including the fees and expenses of their counsel), incurred by the Initial
Purchasers in connection herewith.
12. Notice. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and, if sent to any
Initial Purchaser, shall be mailed, delivered, telecopied, telexed or
telegraphed and confirmed in writing, to such Initial Purchaser, c/o Bear,
▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇; with a copy to ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; if sent to
the Company, shall be mailed, delivered, telecopied, telexed or
telegraphed and confirmed in writing to PLAINWELL INC., ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive Officer;
with a copy to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Citicorp Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇.
13. Consent to Jurisdiction; Waiver of Immunities. (a) The Company:
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(i) irrevocably submits to the jurisdiction of any New York State or
federal court sitting in New York City and any appellate court from any
thereof in any action or proceeding arising out of or relating to this
Agreement or any other document delivered hereunder;
(ii) irrevocably agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State
court or in such federal court; and
(iii) irrevocably waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding and irrevocably consents, to the fullest extent permitted by
law, to service of process of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Company at its address as provided
in Section 11 hereof such service to become effective five days after such
mailing.
(b) Nothing in this Section 13 shall affect the right of any person
to serve legal process in any other manner permitted by law or affect the right
of any person to bring any action or proceeding against the Company or its
properties in the courts of other jurisdictions.
14. Parties. This Agreement shall inure solely to the benefit of, and shall be
binding upon, the Initial Purchasers, the Company and the controlling
persons, directors, officers, employees and agents referred to in Sections
7 and 8, and their respective successors and assigns, and no other person
shall have or be construed to have any legal or equitable right, remedy or
claim under or in respect of or by virtue of this Agreement or any
provision herein contained. The term "successors and assigns" shall not
include a purchaser, in its capacity as such, of Notes from the Initial
Purchasers.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York for contracts made and
to be fully performed in such state without regard to the conflict of law
principles thereof.
16. Counterparts. This Agreement may be executed and delivered (including by
facsimile transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed and
delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Initial Purchasers and the Company in accordance with its terms.
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Very truly yours,
PLAINWELL INC.
By:
-------------------------------
Name:
Title:
Accepted as of the date first above written:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:
-----------------------------
Name:
Title:
SALOMON BROTHERS INC
By:
-----------------------------
Name:
Title:
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SCHEDULE I
Aggregate Principal Amount
Name of Initial Purchaser Of Notes To Be Purchased
------------------------- ------------------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $104,000,000
Salomon Brothers Inc $ 26,000,000
========================
$130,000,000
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EXHIBIT A
[Form of Exchange and Registration Rights Agreement to be Attached]
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EXHIBIT B
[Form of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ Opinion]
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AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger dated as of March 2, 1998,
by and between PLAINWELL INC., a Delaware corporation ("PLAINWELL"), and
Plainwell Paper Company, a Michigan corporation ("Plainwell Paper") (PLAINWELL
and Plainwell Paper collectively shall be the "Constituent Corporations").
WHEREAS, PLAINWELL is a corporation duly organized and existing
under the laws of the State of Delaware with an authorized capital stock of
1,000 shares of common stock, with a par value of $0.01 per share (the
"PLAINWELL Common Stock"), of which 1,000 shares of the PLAINWELL Common Stock
are issued and outstanding as of the date of this Agreement;
WHEREAS, Plainwell Paper is a corporation duly organized and
existing under the laws of the State of Michigan with an authorized capital
stock of 1,000 shares of common stock, with a par value of $1.00 per share (the
"Plainwell Paper Common Stock"), of which 500 shares of the Plainwell Paper
Common Stock are issued and outstanding as of the date of this Agreement;
WHEREAS, the board of directors of each of the Constituent
Corporations has determined that it is in each of their best interests to effect
certain exchanges and other transactions described in this Agreement, that
Plainwell Paper merge with and into PLAINWELL with PLAINWELL being the surviving
corporation, and that the directors and stockholders of each of the Constituent
Corporations have approved the merger on the terms and conditions set forth
herein in accordance with the applicable provisions of the laws of the States of
Delaware and Michigan;
NOW THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereby agree that, in accordance with
the applicable statutes of the States of Delaware and Michigan, Plainwell Paper
shall be merged into PLAINWELL, with PLAINWELL being the surviving corporation,
and that the terms and conditions of such merger (the "Merger"), the mode of
carrying it into effect and the manner and basis of converting the shares
effected by the Merger shall be as follows:
1. The Merger. Upon the terms and conditions hereinafter set forth and in
accordance with the General Corporation Law of Delaware and the Michigan
Business Corporation Act, on the day of the Effective Time, Plainwell
Paper shall be merged with and into PLAINWELL and thereupon the separate
existence of Plainwell Paper shall cease, and PLAINWELL, as the surviving
corporation (the "Surviving Corporation"), shall continue to exist under
and be governed by the General Corporation Law of the State of Delaware.
2. Filing. Plainwell Paper and PLAINWELL will cause a Certificate of
Merger, in compliance with the provisions of applicable law, to be
executed and filed with the Secretary of State of Delaware (the
"Certificate of Merger").
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3. Effective Date of Merger. The Merger shall become effective upon the
later of (a) filing and (b) immediately following the acquisition by
PLAINWELL of the tissue business of ▇▇▇▇ & Talbot, Inc. and ▇▇▇▇ & ▇▇▇▇▇▇,
Wis., Inc. (the "Effective Time").
4. Certificate of Incorporation and By-laws. At the Effective Time, the
Certificate of Incorporation of PLAINWELL shall be the Certificate of
Incorporation of the Surviving Corporation. The by-laws of PLAINWELL shall
be the by-laws of the Surviving Corporation.
5. Directors and Officers. The persons who are directors of PLAINWELL
immediately prior to the Effective Time shall, after the Effective Time,
serve as the directors of the Surviving Corporation, and the officers of
PLAINWELL immediately prior to the Effective Time shall, after the
Effective Time, serve as the officers of the Surviving Corporation; in
each case, such directors and officers to serve until their successors
have been duly elected and qualified in accordance with the Certificate of
Incorporation and the by-laws of the Surviving Corporation, respectively.
6. Conversion. At the Effective Time, by virtue of the Merger and without
any action on the part of the holders of the Plainwell Paper Common Stock,
each share of the Plainwell Paper Common Stock which is issued and
outstanding immediately prior to the Effective Time shall be converted
into one share of PLAINWELL.
7. Effect of Merger. On and after the Effective Time, the Surviving
Corporation shall possess all the assets of every description, and every
interest in the assets, wherever located, and the rights, privileges,
immunities, powers, franchises and authority, of a public as well as a
private nature, of each of Plainwell Paper and PLAINWELL and all
obligations belonging to or due to each of Plainwell Paper and PLAINWELL,
all of which vested in the Surviving Corporation without further act or
deed. The Surviving Corporation shall be liable for all the obligations of
Plainwell Paper and PLAINWELL; any claim existing, or action or proceeding
pending, by or against Plainwell Paper or PLAINWELL may be prosecuted to
judgment, with right of appeal, as if the Merger had not taken place, or
the Surviving Corporation may be substituted in its place; and all the
rights of creditors of each of Plainwell Paper and PLAINWELL shall be
preserved unimpaired.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
PLAINWELL INC. PLAINWELL PAPER COMPANY
By: ___________________ By: ___________________
Its: ___________________ Its: ___________________