Exhibit 10.1
EXECUTION COPY
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DDi Corp.
$100,000,000
6.25% Convertible Subordinated Notes Due 2007
Purchase Agreement
New York, New York
March 26, 2002
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
c/o ▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
DDi Corp., a corporation organized under the laws of the State of
Delaware (the "Company"), proposes to issue and sell to ▇.▇. ▇▇▇▇▇▇ Securities,
Inc. and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. (the "Initial Purchasers"), $100,000,000
principal amount of its 6.25% Convertible Subordinated Notes Due 2007 (the "Firm
Securities"). The Company also proposes to grant to the Initial Purchasers an
option to purchase up to $15,000,000 additional principal amount of such
Subordinated Notes (the "Option Securities" and, together with the Firm
Securities, the "Securities"). The Securities will be convertible into shares of
common stock of the Company, par value $.01 per share (the "Common Stock"). The
Securities are to be issued under an indenture (the "Indenture"), in the form
attached hereto as Exhibit A, between the Company and State Street Bank and
Trust Company, as trustee (the "Trustee"). The Securities and the Common Stock
issuable upon conversion of the Securities have the benefit of a registration
rights agreement (the "Registration Rights Agreement"), in the form attached
hereto as Exhibit B, between the Company and the Initial Purchasers, pursuant to
which the Company has agreed to register the resale of the Securities under the
Act subject to the terms and conditions therein specified. The use of the neuter
in this Agreement shall include the feminine and masculine wherever appropriate.
Certain terms used herein are defined in Section 17 hereof.
The sale of the Securities to the Initial Purchasers will be made
without registration of the Securities under the Act in reliance upon exemptions
from the registration requirements of the Act.
In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum, dated March 25, 2002 (as amended or
supplemented at the Execution Time, including any and all exhibits thereto and
any information incorporated by
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reference therein, the "Preliminary Memorandum"), and a final offering
memorandum, dated March 26, 2002 (as amended or supplemented at the Execution
Time, including any and all exhibits thereto and any information incorporated by
reference therein, the "Final Memorandum"). Each of the Preliminary Memorandum
and the Final Memorandum sets forth certain information concerning the Company
and the Securities. The Company hereby confirms that it has authorized the use
of the Preliminary Memorandum and the Final Memorandum, and any amendment or
supplement thereto, in connection with the offer and sale of the Securities by
the Initial Purchasers. Unless stated to the contrary, any references herein to
the terms "amend," "amendment" or "supplement" with respect to the Final
Memorandum shall be deemed to refer to and include any information filed under
the Exchange Act subsequent to the Execution Time which is incorporated by
reference therein.
1. Representations and Warranties. The Company represents and warrants
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to the Initial Purchasers as set forth below in this Section 1.
(a) The Preliminary Memorandum, at the date thereof, did not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. At the Execution Time, on the
Closing Date and on any settlement date with respect to the Option
Securities, the Final Memorandum did not, and will not (and any amendment
or supplement thereto, at the date thereof, at the Closing Date and on any
settlement date, will not), contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representation or
warranty as to the information contained in or omitted from the Preliminary
Memorandum or the Final Memorandum, or any amendment or supplement thereto,
in reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of the Initial Purchasers specifically for
inclusion therein.
(b) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf has, directly or indirectly, made offers or
sales of any security, or solicited offers to buy any security, under
circumstances that would require the registration of the Securities or of
the Common Stock issuable upon conversion thereof under the Act; provided
that the Company makes no such representation or warranty with respect to
the Initial Purchasers or any of their Affiliates.
(c) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States;
provided that the Company makes no such representation or warranty with
respect to the Initial Purchasers or any of their Affiliates.
(d) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
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(e) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf has engaged in any directed selling efforts
with respect to the Securities, and each of them has complied with the
offering restrictions requirement of Regulation S; provided that the
Company makes no such representation or warranty with respect to the
Initial Purchasers or any of their Affiliates. Terms used in this paragraph
have the meanings given to them by Regulation S.
(f) 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 Final Memorandum will not be, an "investment company"
within the meaning of the Investment Company Act.
(g) The Company is subject to, and in full compliance with, the
reporting requirements of Section 13 or Section 15(d) of the Exchange Act.
The documents incorporated by reference in the Preliminary Memorandum or
the Final Memorandum, when they were filed with the Commission, conformed
in all material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and any further documents so filed
and incorporated by reference in the Preliminary Memorandum or the Final
Memorandum or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(h) The Company has not paid or agreed to pay to any person any
compensation for soliciting another to purchase the Securities of the
Company (except as contemplated by this Agreement).
(i) Neither the Company nor any of its directors, officers or
Affiliates has taken, or will take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, under the Exchange Act or otherwise,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(j) Except in each case as described in the Preliminary Memorandum and
the Final Memorandum, since the date of the latest audited financial
statements included in the Preliminary Memorandum and the Final Memorandum,
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and, except as disclosed in
or contemplated by the Preliminary Memorandum and the Final Memorandum,
there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
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(k) The Company has been duly incorporated and is validly existing as
a 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 Final Memorandum; and the Company
is duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except where the
failure to be so qualified would not, individually or in the aggregate,
have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries, taken as a whole ("Material Adverse Effect").
(l) Each subsidiary of the Company has been duly incorporated and is
validly existing as a 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
Final Memorandum; 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, except where the failure to be so
qualified would not, individually or in the aggregate, have a Material
Adverse Effect; all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized and validly issued and
is fully paid and non-assessable; and the capital stock of each subsidiary
owned by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects, except as described in the Final
Memorandum under the caption "Description of Indebtedness--Dynamic Details
Senior Credit Facility."
(m) As of December 31, 2001, the Company had an authorized
capitalization as set forth in the Final Memorandum under the heading
"Capitalization" in the column entitled "Actual;" and, except as described
in the Final Memorandum, upon completion of the issue and sale of the
Securities and the use of the proceeds therefrom as contemplated in the
Final Memorandum, the Company will have the capitalization as set forth in
the Final Memorandum under the heading "Capitalization" in the column
entitled "As Adjusted."
(n) The Company and its subsidiaries possess adequate certificates,
authorizations or permits issued by appropriate governmental agencies or
bodies necessary to conduct 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.
(o) The Indenture has been duly authorized and, assuming due
authorization, execution and delivery thereof by the Trustee, when executed
and delivered by the Company, will constitute a legal, valid and binding
instrument, enforceable against the Company in accordance with its terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity); the Securities have been duly authorized and, when the Securities
are issued, delivered
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and paid for pursuant to this Agreement on the Closing Date, the Securities
will have been duly executed, authenticated, issued and delivered and will
constitute legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms and will be entitled to
the benefits provided by the Indenture (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity); and the Registration Rights
Agreement has been duly authorized and, when executed and delivered by the
Company, will constitute a legal, valid, binding and enforceable instrument
of the Company (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity and subject, as to the enforcement of the
indemnification provisions contained therein, to public policy to the
extent the enforceability of any right to indemnification violates any law,
rule or regulation).
(p) This Agreement has been duly authorized, executed and delivered by
the Company.
(q) When the Securities are delivered and paid for pursuant to this
Agreement on the Closing Date, such Securities will be convertible into
Common Stock in accordance with the terms of the Indenture; the Common
Stock initially issuable upon conversion of such Securities has been duly
authorized and reserved for issuance upon such conversion and, when issued
upon such conversion, will be validly issued, fully paid and nonassessable;
all outstanding shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and conform
to the description thereof contained in the Final Memorandum; and the
stockholders of the Company have no preemptive rights with respect to the
Securities or the Common Stock issuable upon conversion of the Securities.
(r) No consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, the Registration
Rights Agreement and the Indenture, except such as will be obtained under
the Act and the Trust Indenture Act and such as may be required by the
securities or blue sky laws of the various states in connection with the
offer and sale of the Securities by the Initial Purchasers in the manner
contemplated herein, in the Final Memorandum and in the Registration Rights
Agreement; provided that the Company makes no such representation or
warranty as it relates to the representations, warranties and agreements of
the Initial Purchasers set forth in Section 4 of this Agreement.
(s) The execution, delivery and performance by the Company of this
Agreement, the Registration Rights Agreement, and the Indenture, and the
consummation of the transactions herein or therein contemplated (including
but not limited to the issuance and sale of the Securities by the Company
and the use of the proceeds therefrom as described in the Final Memorandum
and the issuance of Common Stock upon conversion thereof) will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, (i) any statute, any rule, regulation or order
of
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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 (ii) 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 (iii) the charter or by-laws of the Company
or any such subsidiary, except in the case of (i) or (ii), for such breach
or violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
(t) Except as disclosed in the Final Memorandum, there are no pending
actions, suits or proceedings against or affecting the Company or any of
its subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under, or to consummate the transactions contemplated by, this Agreement,
the Indenture, the Registration Rights Agreement or the Final Memorandum;
and no such actions, suits or proceedings are, to the Company's knowledge,
threatened or contemplated.
(u) Neither the Company nor any of its subsidiaries is in violation of
its charter or by-laws, as the case may be, or in default (or would be in
default with notice or lapse of time, or both) in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any material bond, debenture, note or other evidence of
indebtedness or in any material contract, indenture, mortgage, deed of
trust, loan or credit agreement, lease, joint venture or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which any of their properties may be bound, which default or defaults would
have a Material Adverse Effect, or in violation of any law, order, rule,
regulation, writ, injunction, judgment or decree of any court or
governmental agency or body, the violation of which would have a Material
Adverse Effect.
(v) The Company and its subsidiaries have filed all federal, state,
local and foreign tax returns that have been required to be filed and have
paid all taxes shown thereon and all assessments received by them or any of
them to the extent that such taxes have become due and are not being
contested in good faith. Except as disclosed in the Final Memorandum, there
is no tax deficiency that has been or might reasonably be expected to be
asserted or, to the Company's knowledge, threatened against the Company or
any of its subsidiaries, that would have a Material Adverse Effect.
(w) 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.
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(x) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of the
Company and its subsidiaries, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Final
Memorandum or such as would not have a Material Adverse Effect; and any
material real property and buildings held under lease by the Company and
its subsidiaries are held by them under valid, subsisting and enforceable
leases with only such exceptions as would not have a Material Adverse
Effect, in each case except as described in the Final Memorandum.
(y) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or
any other subsidiary of the Company, except as described in or contemplated
by the Final Memorandum (exclusive of any amendment or supplement thereto).
(z) Except as disclosed in the Final Memorandum, 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; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(aa) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(bb) PricewaterhouseCoopers LLP, who has certified the financial
statements of the Company, are independent public accountants as required
by the Act and the Rules and Regulations. The financial statements
(including the related notes) included in the Preliminary Memorandum and
the Final Memorandum present fairly, in all material respects, the
financial position of the Company and its consolidated subsidiaries as of
the dates shown and its 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.
(cc) Each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Securities Act of 1974, as amended
("ERISA"), that is maintained, administered or contributed to by the
Company or any of its subsidiaries for employees or former employees of the
Company or any of its subsidiaries has been
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maintained in compliance, in all material respects, with its respective
terms and the requirements of any applicable statutes, order, rules and
regulations, including but not limited to ERISA and the Internal Revenue
Code of 1986, as amended (the "Code"), except for such non-compliance that
would not result in a Material Adverse Effect. No prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the Code, has
occurred with respect to any such plan, excluding transactions effected
pursuant to a statutory or administrative exemption or transactions that
would not have a Material Adverse Effect. For each such plan that is
subject to the funding rules of Section 412 of the Code or Section 302 of
ERISA, no "accumulated funding deficiency," as defined in Section 412 of
the Code, has been incurred, whether or not waived, and the fair market
value of the assets of each such plan (excluding for these purposes accrued
but unpaid contributions) exceeded the present value of all benefits
accrued under such plan determined using reasonable actuarial assumptions.
(dd) The Company and each of its subsidiaries maintain a system of
internal accounting controls that, taken as a whole, are 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 accountability for assets; (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.
(ee) The Company and each of its subsidiaries maintain insurance of
the types and in the amounts that the Company reasonably deems adequate for
their respective businesses, including, without limitation, insurance
coverage on real and personal property owned or leased by them against
theft, damage, destruction, acts of vandalism and all other material risks
customarily insured against, all of which insurance is in full force and
effect. Neither the Company nor any of its subsidiaries has any reason to
believe that it will not be able to renew existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its respective business.
(ff) There are no contracts or documents which are required to be
described in the Company's Annual Report on Form 10-K for the year ended
December 31, 2001 (the "2001 Annual Report"), or to be attached thereto as
an exhibit, which have not been so described, incorporated by reference as
an exhibit thereto or attached as an exhibit thereto; provided, however,
that contracts or documents required to be described in Part III of the
2001 Annual Report will be incorporated by reference to the Company's Proxy
Statement relating to the annual meeting of stockholders to be held in
2002.
(gg) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person, except as
described in the Final Memorandum.
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(hh) The Common Stock into which the Securities are convertible, upon
issuance, will be listed for trading on the The Nasdaq Stock Market's
National Market.
Any certificate signed by any officer of the Company and delivered to
the Initial Purchasers or counsel for the Initial Purchasers in connection with
the offering of the Securities shall be deemed a representation and warranty by
the Company, as to matters covered thereby, to each Initial Purchaser.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
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reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Initial Purchaser, and each Initial
Purchaser agrees, to purchase from the Company, at a purchase price of
96.75% of the principal amount thereof, plus accrued interest, if any, from
April 2, 2002 to the Closing Date, the principal amount of Firm Securities
set forth opposite such Initial Purchaser's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants
an option to the Initial Purchasers to purchase, severally and not jointly,
the Option Securities at the same purchase price as the Initial Purchasers
paid for the Firm Securities, plus accrued interest, if any, from April 2,
2002 to the settlement date for the Option Securities. The option may be
exercised in whole or in part at any time (but not more than once) on or
before the 30th day after the date of the Final Memorandum upon written or
telegraphic notice by the Initial Purchasers to the Company setting forth
the number of Option Securities as to which the Initial Purchasers is
exercising the option and the settlement date. Delivery of the Option
Securities, and payment therefor, shall be made as provided in Section 3
hereof. The principal amount of Option Securities to be purchased by each
Initial Purchaser shall be the same percentage of the total number of
Option Securities to be purchased by the Initial Purchasers as such Initial
Purchaser is purchasing of the Firm Securities, subject to such adjustments
as the Initial Purchasers shall deem advisable.
3. Delivery and Payment. Delivery of and payment for the Firm
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Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 A.M., New York City time, on April 2,
2002, which date and time may be postponed by agreement between the Initial
Purchasers and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made to the Initial Purchasers
against payment by the Initial Purchasers of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day funds to the
account specified by the Company. Delivery of the Securities shall be made
through the facilities of The Depository Trust Company unless the Initial
Purchasers shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Initial Purchasers on
the date specified by the Initial Purchasers (which shall be within three
Business Days after exercise of said option), for the respective
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account of the Initial Purchasers, against payment by the Initial Purchasers of
the purchase price thereof to or upon the order of the Company by wire transfer
payable in same-day funds to the account specified by the Company. If settlement
for the Option Securities occurs after the Closing Date, the Company will
deliver to the Initial Purchasers on the settlement date for the Option
Securities, and the obligation of the Initial Purchasers to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Initial Purchasers. Each Initial Purchaser, severally
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and not jointly, represents and warrants to and agrees with the Company that:
(a) It has not offered or sold, and will not offer or sell, any
Securities except (i) to those it reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Act) and that, in
connection with each such sale, it has taken or will take reasonable steps
to ensure that the purchaser of such Securities is aware that such sale is
being made in reliance on Rule 144A, or (ii) in accordance with the
restrictions set forth in Exhibit C hereto.
(b) Neither it nor any person acting on its behalf has made or will
make offers or sales of the Securities in the United States by means of any
form of general solicitation or general advertising (within the meaning of
Regulation D) in the United States.
5. Agreements. The Company agrees with each Initial Purchasers that:
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(a) The Company will furnish to the Initial Purchasers and to counsel
for the Initial Purchasers, without charge, during the period referred to
in paragraph (c) below, as many copies of the Final Memorandum and any
amendments and supplements thereto as they may reasonably request.
(b) The Company will not amend or supplement the Final Memorandum,
other than by filing documents under the Exchange Act that are incorporated
by reference therein, without the prior written consent of the Initial
Purchasers, which consent will not be unreasonably withheld or delayed;
provided, however, that, prior to the completion of the distribution of the
Securities by the Initial Purchasers (as determined by the Initial
Purchasers), the Company will not file any document under the Exchange Act
that is incorporated by reference in the Final Memorandum unless, prior to
such proposed filing, the Company has furnished the Initial Purchasers with
a copy of such document for their review and the Initial Purchasers have
not reasonably objected to the filing of such document. The Company will
promptly advise the Initial Purchasers when any document filed under the
Exchange Act that is incorporated by reference in the Final Memorandum
shall have been filed with the Commission.
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers, any event occurs as a result of which
the Final Memorandum, as then amended or supplemented, would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
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circumstances under which they were made, not misleading, or if it should
be necessary to amend or supplement the Final Memorandum to comply with
applicable law, the Company promptly (i) will notify the Initial Purchasers
of any such event; (ii) subject to the requirements of paragraph (b) of
this Section 5, will prepare an amendment or supplement that will correct
such statement or omission or effect such compliance; and (iii) will supply
any supplemented or amended Final Memorandum to the Initial Purchasers and
counsel for the Initial Purchasers without charge in such quantities as
they may reasonably request.
(d) The Company will arrange, if necessary, for the qualification of
the Securities for sale by the Initial Purchasers under the laws of such
jurisdictions as the Initial Purchasers may designate and will maintain
such qualifications in effect so long as required for the sale of the
Securities; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject. The Company will promptly
advise the Initial Purchasers of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose.
(e) For a period of two years from the Closing Date, the Company will
not, and will not permit any of its Affiliates to, resell any Securities or
the Common Stock issuable upon conversion thereof that have been acquired
by any of them.
(f) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf will, directly or indirectly, make offers or
sales of any security, or solicit offers to buy any security, under
circumstances that would require the registration of the Securities or the
Common Stock issuable upon conversion thereof under the Act; provided that
the Company makes no such agreement with respect to the Initial Purchasers
or any of their Affiliates.
(g) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf will engage in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States;
provided that the Company makes no such agreement with respect to the
Initial Purchasers or any of their Affiliates.
(h) So long as any of the Securities or the Common Stock issuable upon
conversion thereof are "restricted securities" within the meaning of Rule
144(a)(3) under the Act, the Company will, during any period in which it is
not subject to and in compliance with Section 13 or 15(d) of the Exchange
Act or it is not exempt from such reporting requirements pursuant to and in
compliance with Rule 12g3-2(b) under the Exchange Act, provide to each
holder of such restricted securities and to each prospective purchaser (as
designated by such holder) of such restricted securities, upon the request
of such holder or prospective purchaser, any information required to be
provided by Rule 144A(d)(4) under the Act. This covenant is intended to be
for the benefit of the holders,
11
and the prospective purchasers designated by such holders, from time to
time of such restricted securities. Any information provided by the Company
pursuant to this Section 5(h) will not, at the date thereof, contain 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.
(i) The Company will cooperate with the Initial Purchasers and use its
best efforts to permit the Securities to be eligible for clearance and
settlement through The Depository Trust Company.
(j) The Company will reserve and keep available at all times, free of
preemptive rights, the full number of shares of Common Stock issuable upon
conversion of the Securities.
(k) The Company will not for a period of 90 days following the
Execution Time, without the prior written consent of ▇.▇. ▇▇▇▇▇▇ Securities
Inc., offer, pledge, sell or contract to sell, hedge, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend or otherwise transfer or dispose
of (or enter into any transaction which is designed to, or might reasonably
be expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
Company or any Affiliate of the Company or any person in privity with the
Company or any Affiliate of the Company), directly or indirectly, or enter
into any swap or other agreement that transfers to another, in whole or in
part, any of the economic consequences of ownership of, or announce the
offering of, any debt securities issued or guaranteed by the Company, any
shares of Common Stock or any securities convertible into, or exchangeable
for, shares of Common Stock; provided, however, that (i) the Company may
issue and sell Common Stock or securities convertible into or exchangeable
for Common Stock pursuant to any employee stock option plan or stock
ownership plan of the Company in effect at the Execution Time, (ii) the
Company may issue Common Stock issuable upon the conversion of securities
or the exercise of warrants outstanding at the Execution Time, (iii) the
Company may issue the Securities, (iv) the Company may issue Common Stock
upon conversion of the Securities, (v) the Company may issue and sell up to
one million shares of Common Stock or securities convertible into, or
exchangeable for, Common Stock in connection with any strategic investor,
lender, vendor, customer, lease or similar arrangement, the primary purpose
of which is not to raise equity capital and (vi) the Company may issue
Common Stock as full or partial consideration in connection with any of the
Company's future acquisitions; provided that, the Initial Purchasers have
received notice of such proposed issuances of Common Stock or securities
convertible into, or exchangeable for, Common Stock pursuant to clauses (v)
and (vi) in advance thereof and, provided further, that those who receive
Common Stock or securities convertible into, or exchangeable for, Common
Stock pursuant to such issuances must enter into lock-up agreements
pursuant to which they may not offer, sell or contract to sell, hedge or
otherwise dispose of, directly or indirectly, any of the Common Stock
referred to in clauses (v) and (vi), or publicly disclose the intention to
make any such offer, sale or disposition, without the prior written consent
of the Initial Purchasers, for a period of 90 days following the Execution
Time.
12
(l) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(m) Between the date hereof and the Closing Date, the Company will not
do or authorize any act or thing that would result in an adjustment of the
Conversion Price (as defined in the Indenture).
(n) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation of the Indenture and the
Registration Rights Agreement, the issuance of the Securities and the fees
of the Trustee; (ii) the preparation, printing or reproduction of the
Preliminary Memorandum and Final Memorandum and each amendment or
supplement to either of them; (iii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Preliminary Memorandum and Final
Memorandum, and all amendments or supplements to either of them, as may, in
each case, be reasonably requested for use in connection with the offering
and sale of the Securities; (iv) the preparation, printing, authentication,
issuance and delivery of certificates for the Securities, including any
stamp or transfer taxes in connection with the original issuance and sale
of the Securities; (v) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of
the Securities; (vi) any registration or qualification of the Securities
for offer and sale under the securities or blue sky laws of the several
states (including filing fees and the reasonable fees and expenses of
counsel for the Initial Purchasers relating to such registration and
qualification); (vii) admitting the Securities for trading in the PORTAL
Market; (viii) the transportation and other expenses incurred by or on
behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local
and special counsel) for the Company; and (x) all other costs and expenses
incident to the performance by the Company of its obligations hereunder. It
is understood, however, that except as provided in Sections 5, 7 and 8 of
this Agreement, the Initial Purchasers will pay all of their own costs and
expenses, including the fees of their counsel.
6. Conditions to the Obligations of the Initial Purchasers. The
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obligations of the Initial Purchasers to purchase the Firm Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein at
the Execution Time and on the Closing Date (and on any settlement date with
respect to the Securities), to the accuracy of the statements of the Company
made in any certificates pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions:
(a) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Esq., general counsel of the Company, and Paul, Hastings, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, LLP, counsel for the Company, to furnish to the Initial Purchasers
opinions, dated the Closing Date and
13
addressed to the Initial Purchasers, substantially in the form set forth in
Exhibits D-1 and D-2, respectively.
(b) The Initial Purchasers shall have received an opinion, dated the
Closing Date, of Wragge & Co., English Counsel for the Company,
substantially in the form set forth in Exhibit D-3.
(c) The Initial Purchasers shall have received from Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion
or opinions, dated the Closing Date and addressed to the Initial
Purchasers, with respect to the issuance and sale of the Securities, the
Indenture, the Registration Rights Agreement, the Final Memorandum (as
amended or supplemented at the Closing Date) and other related matters as
the Initial Purchasers may reasonably 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.
(d) The Company shall have furnished to the Initial Purchasers a
certificate of the Company, signed by the principal financial or accounting
officer of the Company, dated the Closing Date, regarding certain
information contained in the Final Memorandum and a certificate of the
Company, signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully
examined the Final Memorandum, any amendment or supplement to the Final
Memorandum and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct, and the Company 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
(ii) subsequent to the date of the most recent financial
statements included in the Final Memorandum (exclusive of any
amendment or supplement thereto), there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), prospects,
earnings, business, properties or results of operations of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated by the Final Memorandum (exclusive of any amendment
or supplement thereto).
(e) The Initial Purchasers shall have received, on each of the
Execution Time and the Closing Date, a letter dated as of the Execution
Time or as of the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchasers, from PricewaterhouseCoopers LLP,
independent public accountants, containing statements and information of
the type ordinarily included in accountants' "comfort letters" with respect
to the financial statements and certain financial information contained in
the Final
14
Memorandum. References to the Final Memorandum in this Section 6(e) include
any amendment or supplement thereto at the date of the applicable letter.
(f) At the Execution Time, the Company shall have furnished to the
Initial Purchasers "lockup" letters, each substantially in the form of
Exhibit E-1 hereto, from each of the persons or entities listed on Exhibit
E-2 hereto, addressed to the Initial Purchasers.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Final Memorandum (exclusive of any
amendment or supplement thereto), there shall not have been (i) any change
or decrease specified in the letter or letters referred to in paragraph (e)
of this Section 6; or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
prospects, earnings, business, properties or results of operations of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Memorandum (exclusive of any amendment or
supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the Initial Purchasers, so
material and adverse as to make it impractical or inadvisable to market the
Securities as contemplated by the Final Memorandum (exclusive of any
amendment or supplement thereto).
(h) The Securities shall have been designated as PORTAL-eligible
securities in accordance with the rules and regulations of the NASD, and
the Securities shall be eligible for clearance and settlement through The
Depositary Trust Company.
(i) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(j) Prior to the Closing Date, the Company shall have furnished to the
Initial Purchasers such further information, certificates and documents as
the Initial Purchasers may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Initial Purchasers and counsel for the Initial Purchasers,
this Agreement and all obligations of the Initial Purchasers hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Initial
Purchasers. Notice of such cancellation shall be given to the Company in writing
or by telephone or facsimile confirmed in writing.
15
The documents required to be delivered by this Section 6 will be
delivered at the office of counsel for the Initial Purchasers, at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities provided
-------------------------
for herein is not consummated because any condition to the obligations of the
Initial Purchasers set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Initial Purchasers, the Company will reimburse the Initial Purchasers on
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each Initial Purchaser, the directors,
officers, employees and agents of each Initial Purchaser and each person
who controls any Initial Purchaser within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law 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 a
material fact contained in the Preliminary Memorandum, the Final Memorandum
(or in any supplement or amendment thereto) or any information provided by
the Company to any holder or prospective purchaser of Securities pursuant
to Section 5(h), 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 required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made in the
Preliminary Memorandum or the Final Memorandum, or in any amendment thereof
or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by the Initial Purchasers specifically
for inclusion therein; provided further, that with respect to any untrue
statement or omission of material fact made in any Preliminary Memorandum,
the indemnity agreement contained in this Section 8(a) shall not inure to
the benefit of any Initial Purchaser from whom the person asserting any
such loss, claim, damage or liability purchased the Securities concerned,
to the extent that any such loss, claim, damage or liability of such
Initial Purchaser occurs under circumstances where it shall have been
determined by a court of competent jurisdiction by final and nonappealable
judgment that (x) the Company had previously furnished copies of the Final
Memorandum to the Initial Purchasers, (y) the untrue statement or omission
of a material fact contained in the Preliminary Memorandum was corrected in
the Final Memorandum and (z) 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
16
the Final Memorandum. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Initial Purchaser, severally and not jointly, agrees to
indemnify and hold harmless the Company, each of its directors, officers,
employees and agents, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Initial Purchaser, but only
with reference to written information relating to the Initial Purchaser
furnished to the Company by or on behalf of such Initial Purchaser
specifically for inclusion in the Preliminary Memorandum or the Final
Memorandum (or in any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability which any Initial Purchaser
may otherwise have. The Company acknowledges that the statements set forth
in the last paragraph of the cover page regarding the delivery of the
Securities and, under the heading "Plan of Distribution," the paragraph
related to stabilization, syndicate covering transactions and penalty bids
in the Preliminary Memorandum and the Final Memorandum, constitute the only
information furnished in writing by or on behalf of the Initial Purchasers
for inclusion in the Preliminary Memorandum or the Final Memorandum (or in
any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party; (iii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after
notice of the institution of such action; or (iv) the indemnifying party
shall authorize the indemnified party to employ separate
17
counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Initial Purchasers
agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Company and one or more of the Initial Purchasers may be subject
in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and by the Initial Purchasers on
the other from the offering of the Securities; provided, however, that in
no case shall any Initial Purchaser (except as may be provided in any
agreement among the Initial Purchasers relating to the offering of the
Securities) be responsible for any amount in excess of the purchase
discount or commission applicable to the Securities purchased by such
Initial Purchaser hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Initial Purchasers shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and of the Initial Purchasers on the other in
connection with the statements or omissions which resulted in such Losses,
as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by it, and benefits
received by the Initial Purchasers shall be deemed to be equal to the total
purchase discounts and commissions. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one
hand or the Initial Purchasers on the other, the intent of the parties and
their relative knowledge, information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Initial Purchasers
agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 8, each
person who controls the Initial Purchasers within the meaning of either the
Act or the Exchange Act and each director, officer, employee and agent of
an Initial Purchaser shall have the same rights to contribution as an
Initial Purchaser, and each person who controls the Company within the
meaning of either the Act or the Exchange Act and each officer, director,
employee and agent of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms
and conditions of this paragraph (d).
18
9. Default by an Initial Purchaser. If any one of the Initial
-------------------------------
Purchasers shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its obligations under this Agreement,
the remaining Initial Purchaser shall be obligated to take up and pay for the
Securities which the defaulting Initial Purchaser agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of Securities
which the defaulting Initial Purchaser agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities set forth in Schedule I hereto,
the remaining Initial Purchaser shall have the right to purchase all, but shall
not be under any obligation to purchase any, of the Securities, and if such
nondefaulting Initial Purchaser does not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Initial
Purchaser or the Company. In the event of a default by any Initial Purchaser as
set forth in this Section 9, the Closing Date shall be postponed for such
period, not exceeding five Business Days, as the Initial Purchasers shall
determine in order that the required changes in the Final Memorandum or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Initial Purchaser of its liability, if
any, to the Company or any nondefaulting Initial Purchaser for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Initial Purchasers, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or The Nasdaq Stock Market or trading in securities generally on
the New York Stock Exchange or The Nasdaq Stock Market shall have been suspended
or limited or minimum prices shall have been established on such Exchange or
Market, as the case may be; (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities; or (iii) there shall have
occurred any outbreak or escalation of hostilities, including acts of terrorism,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the sole judgment of the Initial Purchasers, impracticable or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Final Memorandum (exclusive of any amendment or supplement thereto).
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Initial Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of the Initial Purchasers or the Company
or any of the officers, directors or controlling persons referred to in Section
8 hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Initial Purchasers, will be
mailed, delivered or telefaxed to ▇.▇. ▇▇▇▇▇▇ Securities, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇, Esq., Managing Director and
Associate General Counsel, facsimile (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., facsimile (▇▇▇) ▇▇▇-▇▇▇▇; or, if sent to the
Company, will be mailed, delivered or telefaxed to it at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
19
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., General Counsel, facsimile (▇▇▇) ▇▇▇-▇▇▇▇,
with a copy to Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.,
facsimile (▇▇▇) ▇▇▇-▇▇▇▇.
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and,
except as expressly set forth in Section 5(h) hereof, no other person will have
any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
16. Headings. The section headings used herein are for convenience
--------
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
-----------
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in The City of New York.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean, the date and time that this Agreement is
executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
20
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
the Company and the Initial Purchasers.
Very truly yours,
DDI CORP.
By
--------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By
----------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
By
----------------------
Name:
Title:
22
SCHEDULE I
--------------------------------------------------------------------------------
Initial Purchasers Principal Amount of Firm Securities
------------------ -----------------------------------
To Be Purchased
---------------
--------------------------------------------------------------------------------
▇.▇. ▇▇▇▇▇▇ Securities Inc. ......... $ 75,000,000
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. ............ $ 25,000,000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Total ................. $100,000,000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
23
EXHIBIT A
Form of Indenture
-----------------
A-1
EXHIBIT B
Form of Registration Rights Agreement
-------------------------------------
B-1
EXHIBIT C
Selling Restrictions for Offers and Sales Outside the United States
-------------------------------------------------------------------
(1)(a) The Securities and the Stock issuable upon conversion thereof
have not been and will not be registered under the 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 under the Act or pursuant to an
exemption from the registration requirements of the Act or unless registered
under the Act. The Initial Purchasers represent and agree that, except as
otherwise permitted by Section 4(a)(i) or (ii) of the Agreement to which this is
an exhibit, they have 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 one year after the later of the commencement of the offering and
the Closing Date, only in accordance with Rule 903 of Regulation S under the
Act. Accordingly, each Initial Purchaser represents and agrees that neither it,
nor any of its Affiliates nor any person acting on its or their behalf has
engaged or will engage in any directed selling efforts with respect to the
Securities, and that it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Initial Purchaser agrees that it
will not engage, directly or indirectly, in hedging transactions with regard to
the Securities or the shares of Common Stock issuable upon conversion thereof
prior to the expiration of one year after the later of the commencement of the
offering and the Closing Date unless in compliance with the Act. Each Initial
Purchaser agrees that, at or prior to the confirmation of sale of Securities
(other than a sale of Securities pursuant to Section 4(a)(i) or (ii) of the
Agreement to which this is an exhibit), it shall have sent to each distributor,
dealer or person receiving a selling concession, fee or other remuneration that
purchases Securities from it during the one-year distribution compliance 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 "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 one year
after the later of the commencement of the offering and April 2, 2002,
except in either case in accordance with Regulation S or Rule 144A under
the Act. Hedging transactions with regard to the Securities or the shares
of Common Stock issuable upon conversion of the Securities may not be
conducted, directly or indirectly, prior to the expiration of one year
after the later of the commencement of the offering and April 2, 2002
unless in compliance with the Act. Terms used above have the meanings given
to them by Regulation S."
(b) Each Initial Purchaser also represents and agrees that it has not
entered and will not enter into any contractual arrangement with any distributor
with respect to the distribution of the Securities, except with its Affiliates
or with the prior written consent of the Company.
(c) Terms used in this section have the meanings given to them by
Regulation S.
(2) Each Initial Purchaser represents and agrees that (i) it has not
offered or sold, and prior to the expiration of the period of six months from
the issue date of the Securities will not offer or sell, any Securities in the
United Kingdom, other than to persons whose ordinary
C-1
business it is to buy, hold, manage or dispose of investments (whether as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which do not constitute an offer to the public within the meaning
of the Public Offers of Securities Regulation 1995 or the Financial Services ▇▇▇
▇▇▇▇ of the United Kingdom; (ii) it has complied and will comply with all
applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ of the United Kingdom
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, if that person is of a kind
described in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom the document may
otherwise lawfully be issued or passed on.
▇-▇
▇▇▇▇▇▇▇ ▇-▇
Form of Opinion to be Delivered by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
------------------------------------------------------------
(i) The outstanding shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained in the
Final Memorandum.
(ii) The Company owns, directly or indirectly, all of the issued
and outstanding capital stock of DDi Intermediate Holdings Corp., DDi
Capital Corp. and Dynamic Details, Incorporated based on a review of
the stock transfer records of each such corporation; Dynamic Details,
Incorporated owns, directly or indirectly, all of the issued and
outstanding capital stock of Dynamic Details, Incorporated Silicon
Valley based on a review of the stock transfer records of such
corporation.
(iii) Except as disclosed in or specifically contemplated by the
Final Memorandum, to such counsel's knowledge, there are no
outstanding options or warrants or other rights calling for the
issuance of any shares of capital stock of the Company or any security
convertible into or exchangeable for capital stock of the Company.
(iv) Except for the registration rights granted pursuant to that
certain Stockholders Agreement, dated March 31, 2000, as amended by
the Amendments thereto, dated October 2, 2000 and January 29, 2001,
respectively, to such counsel's knowledge, no holder of any security
of the Company has the right to require registration of securities in
connection with the registration of the Securities pursuant to the
Registration Rights Agreement.
D-1-1
EXHIBIT D-2
Form of Opinion to be Delivered by Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
-------------------------------------------------------------------------
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with the corporate power and authority to own or lease,
as the case may be, and to operate its properties and conduct its
business as described in the Final Memorandum.
(ii) Each of the subsidiaries of the Company listed in Schedule A
hereto is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware, and each such
subsidiary is qualified as a foreign corporation in each jurisdiction
listed in Schedule A attached hereto.
(iii) Each of the subsidiaries of the Company listed in Schedule
B hereto is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of California, and each such
subsidiary is qualified as a foreign corporation in each jurisdiction
listed in Schedule B attached hereto.
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due execution and delivery
thereof by the Trustee, constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (except to the extent that enforcement thereof may be limited by
(a) bankruptcy, reorganization, insolvency, moratorium or other laws
now or hereafter in effect relating to or affecting creditors' rights
generally and (b) general principles of equity, regardless of whether
enforcement is considered in a proceeding in equity or at law); the
Securities delivered on the Closing Date have been duly authorized by
the Company and conform in all material respects to the description
thereof contained in the Final Memorandum; and the Securities, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement on the Closing Date will
constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms (except
to the extent that enforcement thereof may be limited by (a)
bankruptcy, reorganization, insolvency, moratorium or other laws now
or hereafter in effect relating to or affecting creditors' rights
generally and (b) general principles of equity, regardless of whether
enforcement is considered in a proceeding in equity or at law).
(v) The Securities delivered on the Closing Date are convertible
into shares of Common Stock of the Company in accordance with the
terms of the Indenture; the shares of Common Stock initially issuable
upon conversion of such Securities have been duly authorized and
reserved for issuance upon such conversion and, when issued and
delivered in accordance with the provisions of the Securities and the
Indenture upon such conversion, will be validly issued, fully paid and
nonassessable and will conform in all material respects to the
description thereof contained in the Final Memorandum.
D-2-1
(vi) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and
legally binding instrument enforceable against the Company (except to
the extent that enforcement thereof may be limited by (a) bankruptcy,
reorganization, insolvency, moratorium or other laws now or hereafter
in effect relating to or affecting creditors' rights generally, (b)
general principles of equity, regardless of whether enforcement is
considered in a proceeding in equity or at law and (c) public policy
to the extent the enforceability of any right to indemnification
violates any law, rule or regulation).
(vii) This Agreement has been duly authorized, executed and
delivered by the Company.
(viii) The statements in the Final Memorandum under the headings
"Description of Notes," and "Description of Capital Stock," insofar as
they purport to constitute a summary of the terms of the Securities,
the Common Stock, the Preferred Stock of the Company and the documents
and provisions of law referred to therein, and under the heading
"Certain United States Federal Income Tax Considerations," insofar as
they purport to describe the provisions of law referred to therein,
fairly summarize the terms of the securities, matters, provisions of
law or documents therein described.
(ix) No consent, approval, authorization, order of, filing with
or qualification with, any governmental body or agency is required
under any New York, California or federal law or regulation for the
performance by the Company of its obligations under this Agreement,
the Registration Rights Agreement and the Indenture, except such as
will be obtained under the Act and the Trust Indenture Act and such as
may be required by the securities or blue sky laws or obligations of
the various states in connection with the offer and sale of the
Securities by the Initial Purchasers in the manner contemplated in
this Agreement, in the Final Memorandum and in the Registration Rights
Agreement (as to which such counsel expresses no opinion).
(x) The execution, delivery and performance by the Company of
this Agreement, the Registration Rights Agreement, and the Indenture,
and the consummation of the transactions herein or therein
contemplated (including but not limited to the issuance and sale of
the Securities by the Company and the use of the proceeds therefrom as
described in the Final Memorandum and the issuance of shares of Common
Stock upon conversion thereof) will not (a) conflict with the
Company's Certificate of Incorporation or By-Laws, (b) result in any
violation of the Delaware General Corporation Law, the laws of the
States of New York and California or the Federal laws of the United
States of America (the "Requirements of Law") or (c) constitute a
breach of or an event of default under the terms of any indenture or
other agreement to which the Company or any of its subsidiaries is a
party or bound which is attached or incorporated by reference as an
exhibit to the Company's Annual Report on Form 10-K for the year ended
December 31, 2001 (except that such counsel need not express any
opinion with respect to clause (c)
D-2-2
above as (i) to any indenture or other agreement governed by the laws
of England as to which Wragge & Co., English counsel for the Company,
is opining or as (ii) to any covenant, restriction or provision of any
such agreement with respect to financial covenants, ratios or tests or
any aspect of the financial condition or results of operations of the
Company or any of its subsidiaries, and such counsel has assumed that
all such agreements or instruments which are not governed by the laws
of the State of New York or the State of California are governed by
the laws of the State of New York), or to such counsel's knowledge,
any judgment, order or decree applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator (collectively, "Orders") of the United
States or the States of New York, California or Delaware having
jurisdiction over the Company or any of its subsidiaries, which breach
or default will have a Material Adverse Effect; provided, however,
that such counsel's opinion expressed in this paragraph is based on
such counsel's review of those Requirements of Law which, in such
counsel's experience, are normally applicable to transactions of the
type contemplated by this Agreement, the Registration Rights Agreement
and the Indenture but without having made any special investigation
concerning any other Requirements of Law, and those Orders
specifically identified to such counsel by the Company as being Orders
to which is it subject; provided, further, that such counsel need
express no opinion with respect to the Federal or state securities or
blue sky laws or regulations, antifraud laws or the rules and
regulations of the National Association of Securities Dealers, Inc.
(xi) The stockholders of the Company have no preemptive rights
with respect to the Securities or the shares of Common Stock into
which they are convertible, under the Certificate of Incorporation or
By-Laws of the Company and the Delaware General Corporation Law or
under any agreement or instrument attached or incorporated by
reference as an exhibit to the Company's Annual Report on Form 10-K
for the year ended December 31, 2001.
(xii) Assuming the accuracy of the representations and warranties
and compliance with the agreements contained herein, it is not
necessary in connection with the offer, sale and delivery of the
Securities to the Initial Purchasers under, or in connection with the
conversion of the Securities into shares of Common Stock in the manner
contemplated by this Agreement and the Indenture, as the case may be,
to register the Securities under the Act or to qualify any indenture
in respect of the Securities under the Trust Indenture Act.
(xiii) The Company is not and, immediately after giving effect to
the offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Memorandum, will not be, an
"investment company" as defined in the Investment Company Act.
Such counsel has not independently verified the accuracy, completeness or
fairness of the statements made or included in the Final Memorandum, except as
described in paragraph (viii) above. However, in connection with the preparation
by the Company of the Final
D-2-3
Memorandum, such counsel participated in various discussions and meetings with
the Initial Purchasers' representatives, officers and other representatives of
the Company, and representatives of the Company's independent public accountants
at which the contents of the Final Memorandum were discussed. No information has
come to such counsel's attention which causes such counsel to conclude that the
Final Memorandum contained at the Execution Time or contains as of the Closing
Date an untrue statement of a material fact or omitted or omits, as the case may
be, to state a material fact necessary to make statements therein, in the light
of the circumstances under which they were made, not misleading (except that
such counsel shall express no view as to any financial statements and notes
thereto, financial schedules and other financial information included therein or
exhibits to any document incorporated by reference in the Final Memorandum).
D-2-4
EXHIBIT D-3
Form of Opinion to be Delivered by Wragge & Co.
-----------------------------------------------
(i) DDi Europe Limited (the "Subsidiary") is a private limited company
duly organized, validly existing and in good standing under the laws of
England and Wales.
(ii) The entire issued share capital of the Subsidiary is shown by its
Register of Members as being legally owned by the Company.
(iii) In connection with the proposed offering of Securities by the
Company:
(a) The issuance and sale by the Company of the Securities, the
performance by the Company of its obligations under this Agreement and
the use of the proceeds therefrom as described in the Final Memorandum
will not violate any applicable law of England and Wales nor, to the
extent that this firm is aware of (which it is not), any order, writ,
injunction or decree of any court of England and Wales;
(b) No authorizations or consents of any governmental entity of
England and Wales are required under any applicable law of England and
Wales to permit the Company to perform its obligations under this
Agreement in connection with the sale of the Securities; and
(c) The execution, delivery and performance by the Company of
this Agreement, the Registration Rights Agreement, and the Indenture,
and the consummation of the transactions herein or therein
contemplated (including but not limited to the issuance and sale of
the Securities by the Company and the use of the proceeds therefrom as
described in the Final Memorandum and the issuance of shares of Common
Stock upon conversion thereof) will not constitute a breach of or an
event of default under the terms of any indenture or other agreement
to which the Company or any of its subsidiaries is a party or bound
which is attached or incorporated by reference as an exhibit to the
Company's Annual Report on Form 10-K for the year ended December 31,
2001 and which is governed by English law.
D-3-1
EXHIBIT E-1
Form of Lock-Up Letter
----------------------
March , 2002
--
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: DDi Corp. - - Convertible Subordinated Notes due 2007
Ladies and Gentlemen:
The undersigned understands that you propose to enter into a Purchase Agreement
(the "Purchase Agreement") with DDi Corp., a Delaware corporation (the
"Company"), providing for the offering (the "Offering") by you (the "Initial
Purchaser"), of Convertible Subordinated Notes due 2007 of the Company (the
"Securities"). Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Purchase Agreement.
In consideration of the Initial Purchaser's agreement to purchase and make the
Offering of the Securities, and for other good and valuable consideration
receipt of which is hereby acknowledged, the undersigned hereby agrees that,
without the prior written consent of ▇.▇. ▇▇▇▇▇▇ Securities Inc., the
undersigned will not, during the period ending 90 days after the date of the
offering memorandum relating to the Offering (the "Offering Memorandum"), (i)
offer, pledge, announce the intention to sell, sell, contract to sell, hedge,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock, $0.01 per share
par value, of the Company (the "Common Stock") or any securities convertible
into or exercisable or exchangeable for Common Stock (including without
limitation, Common Stock which may be deemed to be beneficially owned by the
undersigned in accordance with the rules and regulations of the Securities and
Exchange Commission and securities which may be issued upon exercise of a stock
option or warrant), including the Securities or (2) enter into any swap or other
agreement that transfers, in whole or in part, any of the economic consequences
of ownership of the Securities or the Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Securities
or Common Stock or such other securities, in cash or otherwise. In addition, the
undersigned agrees that, without the prior written consent of ▇.▇. ▇▇▇▇▇▇
Securities Inc., it will not, during the period ending 90 days after the date of
the Offering Memorandum, make any demand for or exercise any right with respect
to, the registration of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock.
In furtherance of the foregoing, except as otherwise provided herein, the
Company, and any duly appointed transfer agent for the registration or transfer
of the securities described herein, are hereby authorized to decline to make any
transfer of securities if such transfer would constitute a violation or breach
of this Letter Agreement.
E-1-1
Notwithstanding the foregoing, (i) gifts or (ii) transfers to (A) the
undersigned's immediate family or (B) a trust or partnership the beneficiaries
and sole partners of which are members of the undersigned's immediate family
and/or the undersigned, shall not be prohibited by this Letter Agreement if the
donee, trustee or transferee agrees in writing to be bound by the restrictions
contained herein in the same manner as this Letter Agreement applies to the
undersigned. For purposes of this Letter Agreement, "immediate family" shall
mean any relationship by blood, marriage or adoption, not more remote than first
cousin.
In addition, nothing contained herein shall prohibit the undersigned from
exercising options granted to the undersigned under the Company's stock option
plans, it being understood that the restrictions contained in this Letter
Agreement shall apply to the shares of Common Stock acquired upon such exercise
of options.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to enter into this Letter Agreement. All authority herein
conferred or agreed to be conferred and any obligations of the undersigned shall
be binding upon the successors, assigns, heirs or personal representatives of
the undersigned.
The undersigned understands that, if the Purchase Agreement does not become
effective, or if the Purchase Agreement (other than the provisions thereof which
survive termination) shall terminate or be terminated prior to payment for and
delivery of the Securities to be sold thereunder, the undersigned shall be
released from all obligations under this Letter Agreement.
The undersigned understands that the Initial Purchasers are entering into the
Purchase Agreement and proceeding with the Offering in reliance upon this Letter
Agreement.
E-1-2
This letter agreement shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the conflict of laws principles
thereof.
Very truly yours,
[NAME OF STOCKHOLDER]
By:
------------------------
Name:
Title:
Accepted as of the date
first set forth above:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By:
------------------------------
Name:
Title:
E-1-3
EXHIBIT E-2
Persons Required to Sign Lock-Up Letters
----------------------------------------
▇▇▇▇ Capital Fund V ▇.▇.
▇▇▇▇ Capital Fund V-B, L.P.
BCIP Associates
BCIP Trust Associates, ▇.▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
E-2-1