CONFORMED COPY
EXHIBIT (10)(xxii)(b)
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AUCTION MARKET PREFERRED STOCK
PROCUREMENT AGREEMENT
Dated as of February 7, 2002
by and between
THE ▇▇▇▇▇▇▇ WORKS
and
BNP PARIBAS
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This AUCTION MARKET PREFERRED STOCK PROCUREMENT AGREEMENT
(this "AGREEMENT") is dated as of February 7, 2002 and is by and between THE
▇▇▇▇▇▇▇ WORKS, a Connecticut corporation and BNP PARIBAS, a societe anonyme
organized and existing under the laws of The Republic of France ("INVESTOR").
W I T N E S S E T H
WHEREAS, The ▇▇▇▇▇▇▇ Works is the owner of all 155,652 of the
outstanding shares of Common Stock, par value $0.01 per share, of ▇▇▇▇▇▇▇
Logistics, Inc., a Delaware corporation (the "COMPANY");
WHEREAS, pursuant to an Auction Market Preferred Stock
Subscription Agreement, dated February 4, 2002, between the Company and The
▇▇▇▇▇▇▇ Works (the "SUBSCRIPTION AGREEMENT"), The ▇▇▇▇▇▇▇ Works has agreed
either to subscribe for, or to procure the purchase by another person or persons
of, and the Company has agreed to issue, 11,445 shares of Auction Market
Preferred Stock, par value $0.01 per share, of the Company which shares (the
"AMPS SHARES") are to be issued under the Certificate of Rights, Powers,
Designations and Preferences, and the Qualifications, Limitations or
Restrictions of the Auction Market Preferred Stock of the Company (the
"CERTIFICATE OF DESIGNATIONS") at a subscription price per share equal to the
Liquidation Preference (as defined in Annex A hereto) of such shares (the "ISSUE
PRICE");
WHEREAS, Investor desires that The ▇▇▇▇▇▇▇ Works have the
Company issue to Investor the AMPS Shares and Investor is willing to pay the
Issue Price for each AMPS Share contemporaneously with the issuance of the AMPS
Shares to Investor;
WHEREAS, Investor has had a long-standing relationship with
The ▇▇▇▇▇▇▇ Works and its affiliates which has generated various business
opportunities for Investor, such as, for instance, a European cash pooling
mandate and mergers & acquisitions advisory services for European acquisitions;
WHEREAS, Investor would like to create closer links with the
Company through the purchase of AMPS Shares issued by the Company in the hope
that this may create various other business transaction opportunities with the
Company which might include the arrangement of and participation in transactions
considered by the Company to finance the Company's expansion in the United
States, although, for the avoidance of doubt, the Company is expressly not
committing itself at this time to the awarding of any future mandates to
Investor;
NOW, THEREFORE, the parties, intending to be bound, hereby
agree as follows:
ARTICLE I
DEFINITIONS
Terms not otherwise defined herein shall have the meanings set
forth in Annex A hereto (with terms defined in the singular having comparable
meanings when used in the plural and vice-versa), unless the context otherwise
requires.
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ARTICLE II
PROCUREMENT AND INVESTMENT
Section 2.1 The ▇▇▇▇▇▇▇ Works agrees with Investor to cause
the issuance of the AMPS Shares to Investor at the time and in the manner set
forth in Article III subject to satisfaction of the conditions precedent set
forth in Article VII and to Investor's payment of the related Issue Price as
provided in Article III.
Section 2.2 Subject to satisfaction of the conditions
precedent set forth in Article VII and to The ▇▇▇▇▇▇▇ Works' obligation to cause
the issuance of the AMPS Shares to Investor as provided in Section 2.1, Investor
agrees with The ▇▇▇▇▇▇▇ Works to pay the Issue Price in accordance with and at
the time and in the manner set forth in Article III.
ARTICLE III
CLOSING
Section 3.1 On February 7, 2002 (the "CLOSING DATE"), Investor
shall pay the Issue Price in respect of the AMPS Shares to the Company in
accordance with the provisions of this Agreement, and The ▇▇▇▇▇▇▇ Works shall
cause the Company to issue the AMPS Shares to Investor and deliver to Investor a
share certificate in the form attached hereto in respect of the AMPS Shares
evidencing that Investor is the owner of the AMPS Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Investor represents and warrants to The ▇▇▇▇▇▇▇
Works as follows:
(a) Organization. Investor is a societe anonyme
organized and existing under the laws of The Republic of France and is
a resident of The Republic of France for purposes of the Tax Treaty.
Investor has the requisite corporate power and authority to enter into
the Transaction Documents to which it is a party and to perform its
obligations thereunder.
(b) Authorization and Validity of Transaction
Documents. The Transaction Documents to which Investor is a party have
each been duly authorized, executed and delivered by Investor and
(assuming that each constitutes a valid and binding agreement of each
of the other parties thereto) each constitutes a valid and binding
agreement of Investor enforceable in accordance with its terms subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or affecting
creditor's rights and to general equity principles.
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(c) Non-Contravention. The execution, delivery and
performance of each of the Transaction Documents to which Investor is a
party does not and will not in any material respect (i) violate any
provision of the organizational documents of Investor, (ii) conflict
with, result in a breach of, or constitute a default under, or result
in the termination, cancellation or acceleration (whether after the
giving of notice or lapse of time or both) of any right or obligation
of Investor under any agreement, license, permit or undertaking to
which Investor is a party or by which it is bound or to which any of
its assets are subject, or result in the creation of any liens,
charges, encumbrances, security interests, options, pledges,
restrictions or any other claims or third party rights with respect to
said assets, or (iii) violate or result in a breach of or constitute a
default under any judgment, order, injunction, decree, law, rule,
regulation or other restriction of any court or governmental or
regulatory authority to which Investor is subject.
(d) Authorizations. There are no authorizations,
approvals, consents or waivers required to have been obtained by
Investor from, or notice or filings required to have been given by
Investor to, or made by Investor with, any governmental or regulatory
authority or other person in connection with the execution, delivery
and performance of the Transaction Documents, except those which have
heretofore been obtained or made.
(e) Securities Act. (i) Investor acknowledges that
the AMPS Shares have not been and will not be registered under the
Securities Act or any state securities or blue sky laws, and (ii)
Investor agrees that it may not offer, sell, pledge, hypothecate or
transfer at any time, directly or indirectly, any AMPS Shares (or
securities issuable in exchange therefor) except pursuant to a
transaction not required to be registered under the Securities Act and
subject to the restrictions contained in the Certificate of
Designations. Investor is an institutional Accredited Investor within
the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under
the Securities Act.
(f) No Litigation. To the best of Investor's
knowledge, no judicial, administrative or arbitral proceeding is
pending or is threatened, as of the Closing Date, against it which
would have a material adverse effect on the legality or validity of the
Transaction Documents to which it is a party or on its ability to
perform its obligations under the Transaction Documents to which it is
a party.
(g) No Immunity. Investor is not entitled to the
benefit of any defense of sovereign immunity in any action to enforce
its obligations under any of the Transaction Documents.
(h) Access to Financial Information. Investor
acknowledges that it has access to such financial and other information
concerning the Company, the Parent and the AMPS Shares as deemed
necessary in connection with its decision to purchase the AMPS Shares,
including an opportunity to ask questions of and request information
from the Company.
(i) Investment. Investor is acquiring the AMPS Shares
for its own account for investment, not with a view to, or for sale in
connection with, any distribution thereof, nor with any present
intention of distributing or selling the same; and Investor does not
presently have any contract, undertaking, agreement or arrangement with
any person to sell, transfer or grant participations to such person or
to any third person, with respect to any of the AMPS Shares.
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Investor acknowledges that each certificate representing AMPS Shares
will contain a legend substantially to the following effect:
THE RIGHTS AND PRIVILEGES WITH RESPECT TO THE SHARES
EVIDENCED BY THIS CERTIFICATE ARE LIMITED AND RESTRICTED IN THE MANNER
AND TO THE EXTENT SET FORTH IN THE CERTIFICATE OF RIGHTS, POWERS,
DESIGNATIONS AND PREFERENCES, AND THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF THE AUCTION MARKET PREFERRED STOCK OF THE CORPORATION
("THE CERTIFICATE OF DESIGNATIONS"), FILED WITH THE OFFICE OF THE
SECRETARY OF STATE OF THE STATE OF DELAWARE, AS THE SAME MAY BE
AMENDED, MODIFIED, SUPPLEMENTED, EXTENDED, RENEWED, RESTATED OR
REPLACED FROM TIME TO TIME IN ACCORDANCE WITH ITS TERMS.
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT
IN ACCORDANCE WITH AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND OTHERWISE IN ACCORDANCE WITH
CERTIFICATE OF DESIGNATIONS.
Section 4.2 The ▇▇▇▇▇▇▇ Works represents and warrants to
Investor as follows:
(a) Capitalization. The AMPS Shares represent 6.85
percent of the aggregate voting power of the shares of the capital
stock of the Company and the stated capital represented by the AMPS
Shares is equal to 6.85 percent of the aggregate stated capital of the
Company.
(b) No Litigation. To the best of The ▇▇▇▇▇▇▇ Works'
knowledge, no judicial, administrative or arbitral proceeding is
pending or is threatened, as of the Closing Date, against The ▇▇▇▇▇▇▇
Works or the Company which would have a material adverse effect on the
legality or validity of the Transaction Documents to which The ▇▇▇▇▇▇▇
Works or the Company is a party or on the ability of The ▇▇▇▇▇▇▇ Works
or the Company to perform its obligations under the Transaction
Documents to which it is a party.
ARTICLE V
COVENANTS
Section 5.1 Transfer of AMPS Shares. Investor covenants and
agrees that it will transfer AMPS Shares held by it only (a) pursuant to the
Auction Procedures or (b) upon satisfaction of the following conditions:
(a) Investor shall transfer all but not less than
all of the AMPS Shares held by it to a single transferee;
(b) the transferee of such AMPS Shares shall have
executed and delivered to The ▇▇▇▇▇▇▇ Works an undertaking reasonably
satisfactory to The ▇▇▇▇▇▇▇ Works containing the
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representations, warranties, agreements and covenants which are made by
Investor in this Agreement and the transferee shall have provided such
other information as The ▇▇▇▇▇▇▇ Works may reasonably require which
shall include the name and address of the transferee;
(c) Investor shall have assigned to such transferee
and such transferee shall have accepted and agreed to be bound by all
of the rights and obligations of Investor under the Transaction
Documents prior to such transfer; all, but not less than all of the
aggregate principal amount of the Initial Note and any Additional Notes
shall have been transferred by Investor to such transferee; such
tranferee shall have executed an Investor's Letter (as defined in the
Certificate of Designations); and the transfer shall otherwise comply
with the Certificate of Designations;
(d) at the time of any such transfer, the transferee
of such AMPS Shares is (i) the Holder of the Common Stock of the
Company or an affiliate thereof or (ii) an institutional investor that
(a) is not a U.S. Person, as such term is defined in Regulation S under
the Securities Act and/or Section 7701 of the U.S. Internal Revenue
Code of 1986, as amended, and (b) does not have an adverse business
relationship with the The ▇▇▇▇▇▇▇ Works group of affiliated companies;
and
(e) not later than 30 days prior to such transfer,
Investor shall have given written notice of such transfer to The
▇▇▇▇▇▇▇ Works setting forth the proposed date of transfer, and the sale
price to be paid by the transferee. Upon receipt of such notice, The
▇▇▇▇▇▇▇ Works shall have the right to purchase the AMPS Shares from
Investor at such sale price on such date by giving written notice of
the exercise of such right to Investor not later than five (5) days
prior to such date.
Notwithstanding the foregoing, in the event that The ▇▇▇▇▇▇▇ Works has failed to
comply with its obligation to provide a Bid in accordance with Section 3.3(b) of
the Investment Agreement and Investor has not otherwise effected a sale of any
of the AMPS Shares held by it pursuant to the related Auction, Investor shall
have the right, in addition to any other rights which Investor may have arising
from such failure, to transfer the AMPS Shares without complying with the
restrictions in Section 5.1(d)(i) and (ii)(b) above.
Section 5.2 Residence. Investor represents, covenants and
agrees that on the Closing Date and on any date on which a payment is made on or
in respect of the AMPS Shares, Investor is and will be a resident of The
Republic of France for purposes of the Tax Treaty and will be eligible for the
benefits, if any, provided thereunder with respect to any payments contemplated
by the Transaction Documents.
Section 5.3 AMPS Auction. Investor agrees not to submit a Hold
Order for any of its AMPS Shares in connection with the first Auction conducted
pursuant to the Auction Procedures.
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ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnification by Investor. Investor hereby
agrees to indemnify, defend and hold harmless the Company and The ▇▇▇▇▇▇▇ Works
(collectively, "THE ▇▇▇▇▇▇▇ WORKS INDEMNITEES"), without duplication of any
other indemnification of The ▇▇▇▇▇▇▇ Works Indemnitees under the Transaction
Documents or otherwise or reimbursement or benefit from any other source,
against any increased cost of or loss of intended benefit, including without
limitation, interest, penalties, fines, levies and other similar charges, and
reasonable costs and expenses (including reasonable legal fees and expenses of
counsel), net of any tax relief or benefit (collectively, "LOSSES"), imposed on,
sustained, incurred or suffered by or asserted against any of The ▇▇▇▇▇▇▇ Works
Indemnitees in connection with the transactions contemplated by the Transaction
Documents, as a result of any breach by Investor of any covenant, obligation,
agreement or representation made by it in the Transaction Documents or of the
fact that the AMPS Shares or the payments contemplated by the Transaction
Documents are attributable to a permanent establishment of Investor in the
United States or as a result of any indemnification payment made in respect
thereof, other than Losses (1) resulting from or arising out of negligence, bad
faith or willful misconduct of either of The ▇▇▇▇▇▇▇ Works Indemnitees, or (2)
that constitute consequential damages.
Section 6.2 Indemnification by The ▇▇▇▇▇▇▇ Works. The ▇▇▇▇▇▇▇
Works hereby agrees to indemnify, defend and hold harmless Investor, without
duplication of any other indemnification of Investor under the Transaction
Documents or otherwise or reimbursement or benefit from any other source,
against any Losses, net of any tax relief or benefit imposed on, sustained,
incurred or suffered by or asserted against Investor in connection with the
transactions contemplated by the Transaction Documents, as a result of any
breach by The ▇▇▇▇▇▇▇ Works of any covenant, obligation, agreement or
representation made by it in the Transaction Documents or as a result of any
indemnification payment made in respect thereof, other than Losses (1) resulting
from or arising out of negligence, bad faith or willful misconduct of Investor,
(2) that constitute consequential damages or (3) without limiting the effect of
Section 6.2 of the Note Purchase Agreement, arising with respect to the
imposition of United States withholding taxes.
Section 6.3 Duty to Mitigate Losses. Each of The ▇▇▇▇▇▇▇ Works
and Investor has an obligation to use reasonable best efforts to mitigate Losses
subject to indemnification pursuant to this Article VI.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions Precedent. (a) The obligation of
Investor to purchase and pay the Issue Price for the AMPS Shares on the Closing
Date shall be subject to the conditions that (i) all representations and
warranties of The ▇▇▇▇▇▇▇ Works and the Company in the Transaction Documents
shall be true and correct in all material respects as of the Closing Date, (ii)
The ▇▇▇▇▇▇▇ Works and the Company shall have performed all of their respective
obligations theretofore to be performed under the Transaction Documents in all
material respects
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and (iii) no Acceleration Event shall have occurred and be continuing as of the
Closing Date or shall occur as a result of the issuance of AMPS Shares on the
Closing Date.
(b) The obligation of The ▇▇▇▇▇▇▇ Works to cause the
issuance to Investor of the AMPS Shares on the Closing Date shall be
subject to the conditions that (i) all representations and warranties
of Investor in the Transaction Documents to which it is a party shall
be true and correct in all material respects as of the Closing Date,
(ii) Investor shall have performed all of its obligations theretofore
to be performed under such Transaction Documents in all material
respects and (iii) no Acceleration Event shall have occurred and be
continuing as of the Closing Date or shall occur as a result of the
issuance of AMPS Shares on the Closing Date.
(c) The obligations of each party hereto under
Article III hereof shall be subject to the following additional
conditions:
(i) the execution and delivery of the Note
Purchase Agreement by The ▇▇▇▇▇▇▇ Works and Investor in the form
attached hereto as Exhibit A, and the issuance to Investor of the
Initial Note in the principal amount of $500,000 bearing interest
at the rate set forth on Schedule I hereto and the payment
therefor in accordance with the Note Purchase Agreement;
(ii) the execution and delivery of (x) the
Investment Agreement by The ▇▇▇▇▇▇▇ Works and the Company in the
form attached hereto as Exhibit B and (y) the Voting Agreement by
The ▇▇▇▇▇▇▇ Works and Investor in the form attached hereto as
Exhibit C;
(iii) the delivery on the Closing Date of :
(1)(A) a legal opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Esq., Corporate Counsel of the Company and (B) a
legal opinion of LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
acting as special counsel to the Company, in the
form set forth set forth in Exhibit D-1; and
(2)(A) a legal opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Esq., Corporate Counsel of The ▇▇▇▇▇▇▇ Works and
(B) a legal opinion of LeBoeuf, Lamb, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, acting as special counsel to The ▇▇▇▇▇▇▇
Works, in the form set forth in Exhibit D-2.
(iv) the delivery on the Closing Date of (A) a
legal opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special
New York counsel to Investor, and (B) a legal opinion of ▇▇
▇▇▇▇▇▇▇ Brocas ▇▇▇▇▇▇ & Associes, French counsel to Investor, in
the forms set forth in Exhibit E hereto;
(v) the delivery of a Secretary's Certificate of
each of The ▇▇▇▇▇▇▇ Works and the Company, each certifying as to
(A) incumbency of the officers or representatives thereof signing
the Transaction Documents to be executed and delivered on or prior
to the Closing Date, (B) the charter documents thereof not having
been amended (except as contemplated by the Transaction Documents)
and being in full force and effect, copies of which charter
documents shall be attached to such certificates and (C) the
resolutions
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adopted by the Board of Directors thereof authorizing the
transactions contemplated by the Transaction Documents, copies
of which resolutions shall be attached to such certificates;
(vi) with respect to Investor, the delivery of a
certified copy of La Procuration Generale dated November 14, 2000,
of La Delegation de Pouvoirs dated December 12, 2000, of Les
Subdelegations de Pouvoirs dated December 21, 2000 and March 9,
2001, and of the Power of Attorney, dated February 7, 2002, as
evidence of authority for the execution on behalf of Investor, of
the Transaction Documents to which Investor is a party;
(vii) the delivery of a certified copy of the
Certificate of Designations as filed with the Secretary of State
of Delaware, in the form of Exhibit F hereto;
(viii) the AMPS Shares having been registered in
the name of Investor in the Company's stock ledger and a share
certificate for the AMPS Shares having been delivered to Investor;
(ix) all necessary corporate and governmental
authorizations for Investor, The ▇▇▇▇▇▇▇ Works and the Company
having been obtained; and
(x) the delivery of a certificate signed by an
officer of the The ▇▇▇▇▇▇▇ Works to the effect that no Parent
Acceleration Event (other than pursuant to a Parent Adverse Law
Change) has occurred as of the Closing Date or will occur on the
Closing Date as a result of the issuance of AMPS Shares.
Section 7.2 Expenses. If the Closing Date does not occur as a
result of a default by either party hereto to comply with its obligations under
Article III hereof or to satisfy any of the conditions precedent specified in
Section 7.1 hereof within the control of such party, then such defaulting party
shall pay to the non-defaulting party on demand the reasonable expenses of any
breakage of any funding, including hedging thereof, incurred by the
non-defaulting party which result from the failure of the Closing Date to occur.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Neither this
Agreement nor any of the rights granted herein, nor any of the other interests
and obligations created hereunder, shall be assigned or delegated by any of the
parties hereto without the prior express written consent of the other parties or
except as provided in Section 5.1 hereof.
Section 8.2 Survival. Representations, warranties and
covenants of Investor herein are for the ongoing benefit of The ▇▇▇▇▇▇▇ Works
and the Company and shall survive the issuance, delivery and purchase of the
AMPS Shares. Representations, warranties and covenants of The ▇▇▇▇▇▇▇
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Works herein are for the ongoing benefit of Investor and shall survive the
issuance, delivery and purchase of the AMPS Shares.
Section 8.3 Governing Law. This Agreement is governed by, and
shall be construed in accordance with, the laws of the State of New York without
regard to principles of conflicts of laws.
Section 8.4 Waiver of Jury Trial. EACH PARTY HERETO
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL
ACTION OR BETWEEN THE PARTIES HERETO ARISING OUT OF OR RELATED TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH OR THEREWITH AND FOR ANY COUNTERCLAIM THEREIN. EITHER PARTY HERETO MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
Section 8.5 Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute one and the same instrument.
Section 8.6 Notices. Any notice pursuant to this Agreement
shall be in writing signed by or on behalf of the party giving it and may be
served by sending it by confirmed facsimile, personal delivery or overnight
courier to the address of the other parties set forth below (or to such other
address as any such other party shall have specified by not less than fifteen
days prior notice given in accordance with this Section). Notice shall be
received for purposes thereof:
(i) in the case of personal delivery or overnight
courier, on the day delivery at the address of the relevant
party is confirmed by a signed receipt of such notice, or if
such day is not a Business Day, on the first Business Day
thereafter; and
(ii) in the case of a facsimile transmission, on
the day a confirmation of receipt is received or, if such day
is not a Business Day, on the first Business Day thereafter.
To The ▇▇▇▇▇▇▇ Works:
--------------------
Address: The ▇▇▇▇▇▇▇ Works
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Fax:: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Corporate Counsel
10
To Investor:
-----------
Address: BNP Paribas
▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Fax: (33) (▇) ▇.▇▇.▇▇.▇▇.▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by its duly authorized officer as of the
date first above written.
THE ▇▇▇▇▇▇▇ WORKS
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President & Treasurer
BNP PARIBAS
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
ANNEX A
"ACCELERATED AUCTION DATE" has the meaning specified in the Certificate
of Designations.
"ACCELERATION EVENT" shall mean an AMPS Investors Acceleration Event or
a Parent Acceleration Event (each as defined in the Certificate of
Designations), as applicable.
"AGREEMENT" or "PROCUREMENT AGREEMENT" means this Procurement
Agreement.
"AMPS SHARES" has the meaning specified in the recitals to this
Agreement.
"AUCTION" shall mean each periodic implementation of the Auction
Procedures.
"AUCTION DATE" has the meaning specified in the Certificate of
Designations.
"AUCTION PROCEDURES" has the meaning specified in the Certificate of
Designations.
"BID" has the meaning specified in the Certificate of Designations.
"BUSINESS DAY" means any day other than a Saturday, Sunday or any other
day on which commercial banks located in New York City are authorized or
required by law to remain closed.
"CERTIFICATE OF DESIGNATIONS" has the meaning specified in the recitals
to this Agreement.
"CLOSING DATE" has the meaning specified in Article III of this
Agreement.
"COMMON STOCK" means the Common Stock, par value $0.01 per share, of
the Company.
"COMPANY" has the meaning specified in the recitals to this Agreement.
"DIVIDEND" has the meaning specified in the Certificate of
Designations.
"DIVIDEND PAYMENT DATE" has the meaning specified in the Certificate of
Designations.
"HOLD ORDER" has the meaning specified in paragraph (A)(1) of Schedule
B to the Certificate of Designations.
"INITIAL NOTE" has the meaning specified in the Note Purchase
Agreement.
"INVESTMENT AGREEMENT" means the Auction Market Preferred Stock
Investment Agreement dated as of February 7, 2002 among the Company and The
▇▇▇▇▇▇▇ Works for the benefit of Investor.
"INVESTOR" has the meaning specified in the recitals to this Agreement.
"ISSUE PRICE" has the meaning specified in the recitals to this
Agreement.
"LEGAL OR REGULATORY" with respect to any claim, proceeding or contest,
shall mean any securities law, administrative, tax or corporate law claim,
proceeding or contest in respect of the transactions contemplated by the
Transaction Documents.
"LIQUIDATION PREFERENCE" has the meaning specified in the Certificate
of Designations.
"NOTE PURCHASE AGREEMENT" means the Note Purchase Agreement dated as of
February 7, 2002 between The ▇▇▇▇▇▇▇ Works and Investor.
"OVERNIGHT LIBOR" means in respect of any day (the "relevant date") the
rate for deposits in United States dollars for a period of one day which is
quoted by two major banks in London selected by The ▇▇▇▇▇▇▇ Works with respect
to the Second London Business Day preceding such relevant date in a
representative amount. Overnight LIBOR will be the arithmetic mean of the
quotations of such banks.
"SCHEDULED DIVIDEND" has the meaning specified in the Certificate of
Designations.
"SECURITIES ACT" means the United States Securities Act of 1933 and the
rules and regulations promulgated thereunder, as amended from time to time.
"SUBSCRIPTION AGREEMENT" has the meaning specified in the recitals to
this Agreement.
"TAX TREATY" means the Convention Between the Government of The United
States of America and the Government of the French Republic for the Avoidance of
Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on
Income and Capital, signed August 31, 1994, and any Protocols and Notes thereto,
as the same may be amended from time to time.
"THE ▇▇▇▇▇▇▇ WORKS" has the meaning specified in the recitals to this
Agreement.
"TRANSACTION DOCUMENTS" means this Agreement, the Subscription
Agreement, the Investment Agreement, the Voting Agreement, the Certificate of
Designations, the Note Purchase Agreement and the Initial Note.
"VOTING AGREEMENT" means the Voting Agreement dated as of February 7,
2002 between The ▇▇▇▇▇▇▇ Works and Investor.
SCHEDULE I
1. AMPS dividend rate through February 7, 2007: 4.54%
2. Note interest rate through February 7, 2007: 5.72%
EXHIBIT A
---------
Note Purchase Agreement
SEE TAB 7
EXHIBIT B
---------
Investment Agreement
SEE TAB 5
EXHIBIT C
---------
Voting Agreement
SEE TAB 6
EXHIBIT D-1
-----------
Legal Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.,
Corporate Counsel of the Company
and
Legal Opinion of LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
Special Counsel to the Company
SEE TABS 11 AND 13
EXHIBIT D-2
-----------
Legal Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.,
Corporate Counsel of The ▇▇▇▇▇▇▇ Works
and
Legal Opinion of LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
Special Counsel to The ▇▇▇▇▇▇▇ Works
SEE TABS 10 AND 12
EXHIBIT E
---------
Legal Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
Special U.S. Counsel to Investor
and
Legal Opinion of ▇▇ ▇▇▇▇▇▇▇ Brocas ▇▇▇▇▇▇ & Associes,
French counsel to Investor
SEE TABS 14 AND 15
EXHIBIT F
---------
Certificate of Designations
SEE TAB 2
