PURCHASE AGREEMENT EX. 10.1
August
13, 2010
Citigroup
Global Markets Inc.
Banc of
America Securities LLC
Barclays
Capital Inc.
▇▇▇▇▇
Fargo Securities, LLC
▇▇▇▇▇▇▇,
Sachs & Co.
As
Representatives of the Initial Purchasers
c/o
Citigroup Global Markets Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Chemtura
Corporation, a corporation organized under the laws of the State of Delaware
(the “Company”), proposes to issue and sell to the several parties named in
Schedule I hereto (the “Initial Purchasers”), for whom you (the
“Representatives”) are acting as representatives, $455,000,000 principal amount
of its 7.875% Senior Notes due 2018 (the “Notes”). On the Release
Date (as defined below), the Notes will be jointly and severally guaranteed on a
senior unsecured basis by the entities listed on Schedule III hereto as
guarantors (the “Guarantors”) (collectively, the “Guarantees” and together with
the Notes, the “Securities”). The Securities will have the benefit of
a registration rights agreement (the “Registration Rights Agreement”) to be
dated as of the Closing Date (as defined below), among the Company, the
Guarantors and the Initial Purchasers, pursuant to which the Company and the
Guarantors will agree to register the Securities under the Securities Act of
1933, as amended (the “Act”), subject to the terms and conditions therein
specified.
The Notes
(and the related Guarantees) are to be issued under an indenture (the
“Indenture”), to be dated as of the Closing Date, between the Company and U.S.
Bank National Association, as trustee (the “Trustee”), and a supplemental
indenture to be dated as of the Release Date (as defined below) and executed by
the Guarantors (“the “Supplemental Indenture”).
To the
extent there are no additional parties listed on Schedule I other than you,
the term Representatives as used herein shall mean you as the Initial
Purchasers, and the terms Representatives and Initial Purchasers shall mean
either the singular or plural as the context requires. The use of the
neuter in this Agreement shall include the feminine and masculine wherever
appropriate. Certain terms used herein are defined in
Section 21 hereof.
Upon
satisfaction of the conditions set forth in the Escrow Agreement (as defined
below) on the Release Date, the Securities will be the senior unsecured
obligations of the Company.
In
connection with the Company’s plan of reorganization, the Company and certain of
its subsidiaries intend to (i) enter into a senior secured term loan facility in
the amount of up to $300,000,000 (the “Senior Term Loan Facility”), and (ii)
enter into an asset based credit facility in aggregate principal amount of up to
$275,000,000 (the “ABL Facility”).
Concurrently
with the Closing Date, the Company will enter into an escrow agreement (the
“Escrow Agreement”) with the Trustee and ▇▇▇▇▇ Fargo Bank, National Association,
as escrow agent (the “Escrow Agent”), pursuant to which the net proceeds of the
offering of the Securities will be deposited with the Escrow Agent on the
Closing Date, and the Company shall deposit with the Escrow Agent on the Closing
Date an additional amount in Government Securities, Cash Equivalents and other
Escrow Investments (each as defined in the Escrow Agreement) (collectively, with
any other property from time to time held by the Escrow Agent, the “Escrow
Property”) sufficient to redeem the Securities in cash at a redemption price in
the amount and manner and at the time set forth in the Indenture (the “Escrow
Redemption Amount”). The Escrow Property will be held by the Escrow
Agent in an escrow account (the “Escrow Account”). The Escrow
Property will be held in the Escrow Account in accordance with the terms and
provisions set forth in the Escrow Agreement, and released in accordance with
the conditions set forth therein, as described in the Disclosure Package and the
Final Memorandum (such date of release, the “Release Date”). If the
Release Date does not occur by the earlier of (x) the date on which the Company
determines, in its discretion, that the conditions to the Release Date cannot
occur and (y) the 60th day after the issue date of the Notes, subject to
extension for an additional 30 days on no more than two occasions in accordance
with the terms of the Indenture (the “Outside Date”), the Securities will be
redeemed (the “Redemption”) at the Escrow Redemption Amount in accordance with
the terms of the Indenture.
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 prepared a preliminary
offering memorandum, dated August 10, 2010 (as amended or supplemented at the
date thereof, including any and all exhibits thereto the “Preliminary
Memorandum”), and a final offering memorandum, dated August 13, 2010 (as amended
or supplemented at the Execution Time, including any and all exhibits thereto,
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 Disclosure Package and the Final Memorandum, and any amendment or
supplement thereto, in connection with the offer and sale of the Securities by
the Initial Purchasers.
1. Representations and
Warranties. Each of the Company and the Guarantors, jointly
and severally, represents and warrants to, and agrees with, each Initial
Purchaser 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 in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. As of its date and on the
Closing Date, the Final Memorandum (together with any amendment or supplement
thereto) will not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided, however, that neither
the Company nor the Guarantors make any 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 through the Representatives specifically for inclusion
therein, it being understood and agreed that the only such information furnished
by or on behalf of any Initial Purchaser consists of the information described
as such in Section 8(b) hereof.
2
(b) The
Disclosure Package, as of the Execution Time, does not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from the Disclosure Package based upon and
in conformity with written information furnished to the Company by any Initial
Purchaser through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by or on behalf
of any Initial Purchaser consists of the information described as such in
Section 8(b) hereof.
(c) Neither
the Company nor the Guarantors or their Affiliates, or any person acting on its
or their behalf (other than the Initial Purchasers and their agents, as to which
the Company and Guarantors make no representation or warranty),
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 under the Act.
(d) Neither
the Company nor the Guarantors or their Affiliates, or any person acting on its
or their behalf (other than the Initial Purchasers and their agents, as to which
the Company and Guarantors make no representation or warranty) has: (i) 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 or
(ii) engaged in any directed selling efforts (within the meaning of Regulation
S) with respect to the Securities; and each of the Company, the Guarantors or
their Affiliates and each person acting on its or their behalf has complied with
the offering restrictions requirement of Regulation S.
(e) The
Securities satisfy the eligibility requirements of Rule 144A(d)(3) under
the Act.
(f) No
registration under the Act of the Securities is required for the offer and sale
of the Securities to or by the Initial Purchasers in the manner contemplated
herein, in the Disclosure Package and the Final Memorandum.
(g) Neither
the Company nor the Guarantors have paid or agreed to pay to any person any
compensation for soliciting another to purchase the Securities (except as
contemplated in this Agreement).
3
(h) Neither
the Company nor the Guarantors have taken, directly or indirectly, any action
designed to or that has constituted or that might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of the Securities.
(i) As
of the Closing Date, the Company will have the authorized, issued and
outstanding capitalization set forth in the Disclosure Package and the Final
Memorandum under the heading “Capitalization” (other than the subsequent
expiration or exercise of stock options); all of the outstanding shares of
capital stock of the Company and its significant subsidiaries (as such term is
defined in Rule 1-02 of Regulation S-X under the Act) (the “Subsidiaries”) have
been, and as of the Closing Date will be, duly authorized and validly issued,
are fully paid and nonassessable and were not issued in violation of any
preemptive or similar rights; all of the outstanding shares of capital stock of
the Company and of each of its Subsidiaries will be free and clear of all liens,
encumbrances, equities and claims or restrictions on transferability (other than
any security interests required under the Senior Term Loan Facility or the ABL
Facility and those imposed by the Act and any applicable state securities or
“blue sky” laws) or voting. Except for the Subsidiaries or as
disclosed in the Disclosure Package, or with respect to joint ventures only, the
Company does not own, directly or indirectly, any shares of capital stock or any
other equity or long-term debt securities or have any equity interest in any
firm, partnership, joint venture or other entity.
(j) Each
of the Company and its Subsidiaries is duly incorporated or organized, validly
existing and in good standing under the laws of its respective jurisdiction of
incorporation or organization and has all requisite corporate or other power and
authority to own its properties and conduct its business as described in the
Disclosure Package and the Final Memorandum, except where failure to have such
power or be in good standing would not have a material adverse effect on the
condition (financial or otherwise), earnings or business of the Company and its
Subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business (a “Material Adverse Effect”); each of the Company
and the Subsidiaries is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions where the ownership or leasing of
its properties 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..
(k) The
Guarantees to be issued by each of the Guarantors have been duly authorized by
each Guarantor and will be duly executed and delivered by such Guarantor. When
the Notes are issued, executed and authenticated in accordance with the terms of
the Indenture (assuming due authorization, execution and delivery by the
Trustee), and the Supplemental Indenture has been executed by each Guarantor on
the Release Date, the Guarantee of each Guarantor endorsed thereon will
constitute valid and binding obligations of such Guarantor, enforceable against
such Guarantor in accordance with its terms, except that the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the
court before which any proceeding therefor may be brought.
(l) Each
of the Company and the Guarantors has all requisite corporate power and
authority to execute, deliver and perform each of their obligations under the
Notes. The Notes, when issued, will be in the form contemplated by
the Indenture. The Notes have been duly and validly authorized by the Company
and, when executed by the Company and authenticated by the Trustee in accordance
with the provisions of the Indenture and when delivered to and paid for by the
Initial Purchasers in accordance with the terms of this Agreement, will
constitute valid and legally binding obligations of the Company entitled to the
benefits of the Indenture, and enforceable against the Company in accordance
with its terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity and the discretion of the court before
which any proceeding therefor may be brought.
4
(m) Each
of the Company and the Guarantors has all requisite corporate or other power and
authority to execute, deliver and perform their obligations under the Indenture
and Supplemental Indenture, as applicable. The Indenture has been
duly and validly authorized by the Company and, when executed and delivered by
the Company (assuming the due authorization, execution and delivery by the
Trustee), will constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity and the discretion of the court before which any proceeding therefor may
be brought. When duly and validly authorized, executed and delivered
by the each Guarantor (assuming the due authorization, execution and delivery by
the Trustee), the Supplemental Indenture will constitute a valid and legally
binding agreement of each Guarantor, enforceable against such Guarantor in
accordance with its terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity and the discretion of the court before
which any proceeding therefor may be brought.
(n) Each
of the Company and the Guarantors has all requisite corporate or other power and
authority to execute, deliver and perform their obligations under this Agreement
and the Registration Rights Agreement and to consummate the transactions
contemplated hereby and thereby. This Agreement (including the provisions of
this Agreement) and the consummation by the Company of the transactions
contemplated hereby have been duly and validly authorized by the Company and the
Guarantors. The Registration Rights Agreement has been duly and validly
authorized by the Company and the Guarantors and, when executed and delivered by
the Company and the Guarantors (assuming the due authorization, execution and
delivery by the Initial Purchasers), will constitute a valid and legally binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity and the discretion of the court before
which any proceeding therefor may be brought.
(o) No
consent, approval, authorization or order of any court or governmental agency or
body, or third party is required for the issuance and sale by the Company of the
Notes to the Initial Purchasers or the consummation by the Company of the other
transactions contemplated by this Agreement, in the Registration Rights
Agreement or in the Indenture, in connection with the issuance and sale of the
Notes by the Company, except such as have been obtained and such as may be
required under state securities, “blue sky” laws of any jurisdiction in which
the Securities are offered and sold, such as have been and will be obtained from
the United States Bankruptcy Court for the Southern District of New York and,
such as will be obtained under the Act and the Trust Indenture
Act. Neither the Company or any of its Subsidiaries is (i) in
violation of its certificate of incorporation or bylaws (or similar
organizational document), (ii) in breach or violation of any statute,
judgment, decree, order, rule or regulation applicable to any of them or any of
their respective properties or assets, except for any such breach or violation
that would not, individually or in the aggregate, have a Material Adverse Effect
or (iii) in breach of or default under (nor has any event occurred that,
with notice or passage of time or both, would constitute a default under) or in
violation of any of the terms or provisions of any indenture, mortgage, deed of
trust, loan agreement, note, lease, license, franchise agreement, permit,
certificate, contract or other agreement or instrument to which any of them is a
party or to which any of them or their respective properties or assets is
subject (collectively, “Contracts”), except for any such breach, default,
violation or event that would not, individually or in the aggregate, have a
Material Adverse Effect.
5
(p) The
execution and delivery of this Agreement, the Registration Rights Agreement or
the Indenture, the issuance and sale of the Securities, or the consummation of
any other of the transactions herein or therein contemplated will not conflict
with or constitute or result in a breach of or a default under or violation of
any of (i) the terms or provisions of any Contract, except for any such
conflict, breach, violation, default or event that would not, individually or in
the aggregate, have a Material Adverse Effect or a material adverse effect on
the transactions herein, (ii) the certificate of incorporation or bylaws
(or similar organizational document) of the Company or any of the Subsidiaries
or (iii) (assuming compliance with all applicable state securities or “blue
sky” laws) any statute, judgment, decree, order, rule or regulation applicable
to the Company or any of its Subsidiaries or any of their respective properties
or assets, except for any such conflict, breach or violation that would not,
individually or in the aggregate, have a Material Adverse Effect or a material
adverse effect on the transactions herein.
(q) The
audited consolidated financial statements of the Company and its consolidated
subsidiaries included in the Disclosure Package and the Final Memorandum present
fairly in all material respects the financial position, results of operations
and cash flows of the Company and its subsidiaries at the dates and for the
periods to which they relate and have been prepared in accordance with generally
accepted accounting principles (“GAAP”) applied on a consistent basis, except as
otherwise stated therein. The summary and selected financial data (other than
pro forma information) in the Disclosure Package present fairly in all material
respects the information shown therein and have been prepared and compiled on a
basis consistent with the audited financial statements included therein, except
as otherwise stated therein. KPMG LLP (the “Independent Accountants”), who has
certified certain financial statements of the Company and its consolidated
subsidiaries and delivered their report with respect to the audited consolidated
financial statements is an independent public accounting firm within the meaning
of the Act and the rules and regulations promulgated thereunder.
(r) The
pro forma financial statements (including the notes thereto) and the other pro
forma financial information included in the Disclosure Package and the Final
Memorandum (i) comply as to form with the applicable accounting requirements of
Regulation S-X, (ii) have been prepared in accordance with the Commission’s
rules and guidelines with respect to pro forma financial statements and (iii)
have been properly computed on the bases described therein; the assumptions used
in the preparation of the pro forma financial data and other pro forma financial
information included in the Disclosure Package and the Final Memorandum are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions or circumstances referred to therein.
6
(s) Other
than as disclosed in the Disclosure Package and the Final Memorandum, there is
not pending or, to the knowledge of the Company or any Guarantor, threatened any
action, suit, proceeding, inquiry or investigation to which the Company or any
of its Subsidiaries is a party, or to which the property or assets of the
Company or any of its Subsidiaries is subject, before or brought by any court,
arbitrator or governmental agency or body that, if determined adversely to the
Company or any of its Subsidiaries, would, individually or in the aggregate,
have a Material Adverse Effect or that seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of the Notes to be
sold hereunder or the consummation of the other transactions described in the
Disclosure Package and the Final Memorandum.
(t) Each
of the Company and its Subsidiaries possesses all licenses, permits,
certificates, consents, orders, approvals and other authorizations from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, presently required or necessary to own or lease, as the case
may be, and to operate its respective properties and to carry on its respective
businesses as now or proposed to be conducted as set forth in the Disclosure
Package and the Final Memorandum (“Permits”), except where the failure to obtain
such Permits would not, individually or in the aggregate, have a Material
Adverse Effect; each of the Company and its Subsidiaries has fulfilled and
performed all of its obligations with respect to such Permits and no event has
occurred that allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of the rights
of the holder of any such Permit; and none of the Company or its Subsidiaries
has received any notice of any proceeding relating to revocation or modification
of any such Permit, except as set forth in or contemplated in the Disclosure
Package and the Final Memorandum and except where such revocation or
modification would not, individually or in the aggregate, have a Material
Adverse Effect.
(u) Since
the date of the most recent financial statements appearing in the Disclosure
Package and the Final Memorandum, except as described therein, (i) neither
the Company nor the Guarantors has incurred any liabilities or obligations,
direct or contingent, or entered into or agreed to enter into any transactions
or contracts (written or oral) not in the ordinary course of business, which
liabilities, obligations, transactions or contracts would, individually or in
the aggregate, have a Material Adverse Effect, (ii) neither the Company nor
the Guarantors has purchased any of its outstanding capital stock, nor declared,
paid or otherwise made any dividend or distribution of any kind on its capital
stock (other than with respect to any of their subsidiaries, the purchase of, or
dividend or distribution on, capital stock owned by the Company) and
(iii) there shall not have been any material change in the capital stock
(other than pursuant to employee benefit plans described in the Disclosure
Package and the Final Memorandum) or long-term indebtedness of the Company or
any Guarantor.
7
(v) Each
of the Company and the Guarantors has filed all necessary federal, state and
foreign income and franchise tax returns, except where the failure to so file
such returns would not, individually or in the aggregate, have a Material
Adverse Effect, and has paid all taxes shown as due thereon; and other than tax
deficiencies that the Company or any of its subsidiaries are contesting in good
faith and for which the Company or any such subsidiary has provided adequate
reserves, there is no tax deficiency that has been asserted against the Company
or any of its Subsidiaries that would have, individually or in the aggregate, a
Material Adverse Effect.
(w) The
statistical information included in the Disclosure Package and the Final
Memorandum derived from information provided by the Company is accurate in all
material respects, and the market-related data included in the Disclosure
Package and the Final Memorandum is based on sources that the Company believes
to be reliable.
(x) Each
of the Company and the Guarantors has good and marketable title to all real
property and good and marketable title to all personal property described in the
Disclosure Package and the Final Memorandum as being owned by it and good and
marketable title to a leasehold estate in the real and personal property
described in the Disclosure Package and the Final Memorandum as being leased by
it free and clear of all liens, charges, encumbrances or restrictions, except as
described in the Disclosure Package and the Final Memorandum or to the extent
the failure to have such title or the existence of any such liens, charges,
encumbrances or restrictions would not, individually or in the aggregate, have a
Material Adverse Effect. All leases, contracts and agreements to which any of
the Company and the Guarantors is a party or by which any of them is bound are
valid and enforceable against the Company or any of its Subsidiaries, and are
valid and enforceable against the other party or parties thereto and are in full
force and effect with only such exceptions that would not, individually or in
the aggregate, have a Material Adverse Effect. Except as would not, individually
or in the aggregate, have a Material Adverse Effect, (1) the Company and
the Guarantors own or possess adequate licenses or other rights to use all
patents, trademarks, service marks, trade names, copyrights and know-how
necessary to conduct the businesses now or proposed to be operated by them as
described in the Disclosure Package and the Final Memorandum, and
(2) neither the Company nor the Guarantors has received any notice of
infringement of or conflict with (or knows of any such infringement of or
conflict with) asserted rights of others with respect to any patents,
trademarks, service marks, trade names, copyrights or know-how that, if such
assertion of infringement or conflict were sustained would have a Material
Adverse Effect.
(y) Other
than as disclosed in the Disclosure Package and the Final Memorandum or except
as would not, individually or in the aggregate, have a Material Adverse Effect
(A) each of the Company and the Guarantors is in compliance with and not
subject to any liability under applicable Environmental Laws (as defined below),
(B) each of the Company and the Guarantors has made all filings and
provided all notices required under any applicable Environmental Law, and has
and is in compliance with all Permits required under any applicable
Environmental Laws and each of them is in full force and effect, (C) there
is no civil, criminal or administrative action, suit, demand, claim, hearing,
notice of violation, investigation, proceeding, notice or demand letter or
request for information pending or, to the knowledge of the Company or any
Guarantor, threatened against any of the Company or the Guarantors under any
Environmental Law, (D) except in connection with institutional control
mechanisms as part of approved remedial actions, no lien, charge, encumbrance or
restriction has been recorded under any Environmental Law with respect to any
assets, facility or property owned, operated, leased or controlled by the
Company or any Guarantor, (E) except as described in the Disclosure Package
and the Final Memorandum, neither the Company nor the Guarantors has received
notice that it has been identified as a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA"), or any
comparable state law and (F) except as described in the Disclosure Package
and the Final Memorandum, no property or facility of any of the Company or the
Guarantors is listed or proposed for listing on the National Priorities List
under CERCLA. The Company periodically reviews the effect of
Environmental Laws on the business, operations and properties of the Company and
its subsidiaries, in the course of which it identifies and evaluates associated
costs and liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties); on the
basis of such review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a Material
Adverse Effect, except as set forth in or contemplated in the Disclosure Package
and the Final Memorandum (exclusive of any amendment or supplement
thereto).
8
For
purposes of this Agreement, "Environmental Laws"
means the common law and all applicable foreign, federal, state and local laws
or regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder, relating to pollution or protection
of public or employee health and safety or the environment, including, without
limitation, laws relating to (i) emissions, discharges, releases or
threatened releases of hazardous materials into the environment (including,
without limitation, ambient air, surface water, ground water, land surface or
subsurface strata), (ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling of hazardous
materials, and (iii) underground and above ground storage tanks and related
piping, and emissions, discharges, releases or threatened releases
therefrom.
(z) No
labor problem or dispute with the employees of the Company or any of its
Subsidiaries exists or, to the knowledge of the Company and the Guarantors, is
threatened that would have a Material Adverse Effect; and the Company is not
aware of any existing or threatened labor disturbance by the employees of any of
its principal suppliers or contractors that would have a Material Adverse
Effect.
(aa) The
Company and each of its Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are customary in the businesses in which they are engaged; and neither the
Company nor any of its Subsidiaries has any reason to believe that it will not
be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not have a Material Adverse Effect
except as set forth in or contemplated in the Disclosure Package and the Final
Memorandum.
9
(bb) Except as described in the
Disclosure Package and the Final Memorandum, neither the Company nor the
Guarantors has incurred any liability that has not been satisfied in full
arising from any prohibited transaction or any complete or partial withdrawal
liability with respect to any pension, profit sharing or other plan which is
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), to
which any of the Company or the Guarantors makes, or has made, or had an
obligation to make, a contribution within the past six years and in which any
employee of the Company or any Guarantor is or has ever been a participant. With
respect to such plans, each of the Company and the Guarantors is in compliance
in all material respects with all applicable provisions of ERISA and all
required contributions have been made.
(cc) Except
as set forth in the Disclosure Package and the Final Memorandum, the Company and
each of its Subsidiaries (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in accordance
with management's authorization and (D) the reported accountability for its
assets is compared with existing assets at reasonable intervals. The
Company and its subsidiaries are not aware of any material weakness in their
internal control over financial reporting except as set forth in the Disclosure
Package and the Final Memorandum.
(dd) 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
Disclosure Package and the Final Memorandum will not be, an “investment company”
as defined in the Investment Company Act.
(ee) The
statements in the Preliminary Memorandum and the Final Memorandum under the
headings “Certain Material U.S. Federal Income Tax Considerations” and
“Description of Notes”, to the extent that they summarize laws, governmental
rules or regulations or documents referred to therein, fairly summarize the
matters therein described in all material respects.
(ff) Each
of the Company and the Guarantors will be, immediately after the Release Date,
Solvent. As used herein, the term “Solvent” means, with respect to a
particular date, that on such date (i) the fair market value of the assets of
the Company and its subsidiaries, on a consolidated basis, is not less than the
total amount required to pay the liabilities of the Company and its subsidiaries
on their combined total existing debts and liabilities (including contingent
liabilities) as they become absolute and matured, (ii) the Company and the
Guarantors, on a consolidated basis, are able to realize upon their assets and
pay their debts and other liabilities, including contingent obligations, as they
mature and (iii) the Company and the Guarantors, on a consolidated basis, do not
have unreasonably small capital.
10
(gg) 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 (i) to the extent such restriction or prohibition would
constitute a “Permitted Lien” under and as defined in either the Senior Term
Loan Facility or the ABL Facility and (ii) as described in or contemplated in
the Disclosure Package or the Final Memorandum.
(hh) The
Company maintains “disclosure controls and procedures” (as such term is defined
in Rule 13a-15(e) under the Exchange Act); such disclosure controls and
procedures are effective as of the quarter ended June 30, 2010.
(ii) The
Subsidiaries listed on Annex A attached hereto are the only “significant
subsidiaries” of the Company (as defined in Rule 1-02 of
Regulation S-X).
(jj) The
operations of the Company and its subsidiaries are and have been conducted at
all times in compliance the money laundering statutes and the rules and
regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”), and with financial recordkeeping
and reporting requirements applicable to the Money Laundering Laws, and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened.
(kk) None
of the following events has occurred or exists: (i) an audit or, to
the knowledge of the Company, investigation by the Internal Revenue Service, the
U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other
federal or state governmental agency or any foreign regulatory agency with
respect to the employment or compensation of employees by any of the Company or
any of its Subsidiaries that could have a Material Adverse Effect; (ii) any
breach of any contractual obligation, or any violation of law or applicable
qualification standards, with respect to the employment or compensation of
employees by the Company or any of its Subsidiaries that could have a Material
Adverse Effect.
(ll) None
of the Company, any of its subsidiaries or, to the knowledge of the Company or
any Guarantor, any director, officer, agent, employee or Controlled Affiliate of
the Company or any of its subsidiaries is currently subject to any sanctions
administered by the Office of Foreign Assets Control of the U.S. Department of
the Treasury (“OFAC”); and the Company will take reasonable measures to ensure
that it does not directly or indirectly use the proceeds of the offering of the
Securities hereunder, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
(mm) Except
as described in the Disclosure Package and the Final Memorandum, neither the
Company nor any of its subsidiaries nor, to the knowledge of the Company or any
Guarantor, any director, officer, agent, employee or Controlled Affiliate of the
Company or any of its Subsidiaries is aware of or has taken any action, directly
or indirectly, that would result in a violation by such persons of the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “FCPA”), including, without limitation, making use of the mails
or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any
money, or other property, gift, promise to give, or authorization of the giving
of anything of value to any “foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA; and, except as described
in the Disclosure Package and the Final Memorandum, the Company, its
subsidiaries and, to the knowledge of the Company or any Guarantor, its
Affiliates have conducted their businesses in compliance with the FCPA and the
Company and its subsidiaries have instituted and maintain policies and
procedures designed to ensure continued compliance with the FCPA in all material
respects.
11
(nn) Upon
execution of the Escrow Agreement, the establishment of the Escrow Account to
hold the Escrow Property and the issuance of the Securities, the Escrow Property
granted in favor of the Trustee and the holders of the Securities pursuant to
the Escrow Agreement will constitute a perfected security interest (assuming the
due authentication, execution and delivery by the Trustee) and there are no
other liens on or security interests in the Escrow Account of the Escrow
Property.
2. Purchase and
Sale. Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company agrees to sell
to each Initial Purchaser, and each Initial Purchaser agrees, severally and not
jointly, to purchase from the Company, the principal amount of Securities set
forth opposite such Initial Purchaser’s name in Schedule I hereto, at a
purchase price of 97.269% of the principal amount of Notes.
3. Delivery and
Payment. Delivery of and payment for the Securities shall be
made at 10:00 A.M., New York City time, on August 27,
2010, or at such time on such later date not more than three Business Days after
the foregoing date as the Representatives shall designate, which date and time
may be postponed by agreement between the Representatives 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 Representatives for the respective
accounts of the several Initial Purchasers against payment by the several
Initial Purchasers through the Representatives of the purchase price thereof to
or upon the order of the Company by wire transfer payable in immediately
available 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 Representatives shall otherwise instruct.
4. Offering by Initial
Purchasers. 1) Each Initial Purchaser acknowledges
that the Securities 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 pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Act.
12
(b) Each
Initial Purchaser, severally and not jointly, represents and warrants to and
agrees with each of the Company and the Guarantors that:
(i) it
has not offered or sold, and will not offer or sell, any Securities within the
United States or to, or for the account or benefit of, U.S. persons (x) as
part of their distribution at any time or (y) otherwise until 40 days after
the later of the commencement of the offering and the date of the closing of the
offering except:
|
|
(A)
|
to
those it reasonably believes to be “qualified institutional buyers” (as
defined in Rule 144A under the Act)
or
|
|
|
(B)
|
in
accordance with Rule 903 of
Regulation S;
|
(ii) 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;
(iii) in
connection with each sale pursuant to Section 4(b)(i)(A), it has taken or
will take reasonable steps to ensure that the purchaser of such Securities is
aware that such sale may be made in reliance on Rule 144A;
(iv) 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 (within the meaning of
Regulation S) with respect to the Securities;
(v) it
is an “accredited investor” (as defined in Rule 501(a) of Regulation
D);
(vi) it
has complied and will comply with the offering restrictions requirement of
Regulation S;
(vii) at
or prior to the confirmation of sale of Securities (other than a sale of
Securities pursuant to Section 4(b)(i)(A) of this Agreement), 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 distribution
compliance period (within the meaning of Regulation S) 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 40 days after the later of the
commencement of the offering and the date of closing of the offering, except in
either case in accordance with Regulation S or Rule 144A under the
Act.”
13
(viii) it
has only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial Services and Markets
▇▇▇ ▇▇▇▇ (the “FSMA”)) received by it in connection with the issue or sale of
any Securities, in circumstances in which Section 21(1) of the FSMA does not
apply to the Company; and
(ix) in
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), it has
not made and will not make an offer to the public of any Securities which are
the subject of the offering contemplated by this Agreement in that Relevant
Member State , except that it may make an offer to the public in that Relevant
Member State of any Securities at any time under the following exemptions under
the Prospectus Directive, if they have been implemented in that Relevant Member
State:
|
|
(A)
|
to
legal entities which are authorized or regulated to operate in the
financial markets or, if not so authorized or regulated, whose corporate
purpose is solely to invest in
securities;
|
|
|
(B)
|
to
any legal entity which has two or more of (i) an average of at least 250
employees during the last financial year, (ii) a total balance sheet of
more than €43,000,000 and (iii) an annual turnover of more than
€50,000,000, as shown in its last annual or consolidated
accounts;
|
|
|
(C)
|
to
fewer than 100 natural or legal persons (other than qualified investors as
defined in the Prospectus Directive) subject to obtaining the prior
written consent of the Representatives for any such offer;
or
|
|
|
(D)
|
in
any other circumstances falling within Article 3(2) of the Prospectus
Directive;
|
provided
that no such offer of Securities shall result in a requirement for the
publication by the Company or any Initial Purchaser of a prospectus pursuant to
Article 3 of the Prospectus Directive.
For the
purposes of this provision, the expression an “offer to the public” in relation
to any Securities in any Relevant Member State means the communication in any
form and by any means of sufficient information on the terms of the offer and
the Securities to be offered so as to enable an investor to decide to purchase
any Securities, as the same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State and the expression
“Prospectus Directive” means Directive
2003/71/EC and includes any relevant implementing measure in each Relevant
Member State.
14
5. Agreements. Each
of the Company and the Guarantors, jointly and severally, agrees with each
Initial Purchaser that:
(a) The
Company will furnish to each Initial Purchaser and to counsel for the Initial
Purchasers, without charge, during the Distribution Period as many copies of the
materials contained in the Disclosure Package and the Final Memorandum and any
amendments and supplements thereto as they may reasonably request.
(b) The
Company will prepare a final term sheet, containing solely a description of
final terms of the Securities and the offering thereof, in the form approved by
you and attached as Schedule II hereto.
(c) The
Company will not amend or supplement the Disclosure Package or the Final
Memorandum without the prior written consent of the Representatives, which
consent may not be unreasonably withheld.
(d) If
at any time during the Distribution Period, any event occurs as a result of
which the Disclosure Package or 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 circumstances under which they were made or the circumstances then
prevailing, not misleading, or if it should be necessary to amend or supplement
the Disclosure Package or the Final Memorandum to comply with applicable law,
the Company will promptly (i) notify the Representatives of any such event; (ii)
subject to the requirements of Section 5(c), prepare an amendment or supplement
that will correct such statement or omission or effect such compliance; and
(iii) supply any supplemented or amended Disclosure Package or Final Memorandum
to the several Initial Purchasers and counsel for the Initial Purchasers without
charge in such quantities as they may reasonably request.
(e) Without
the prior written consent of the Representatives, neither the Company nor any
Guarantor has not given and will not give to any prospective purchaser of the
Securities any written information concerning the offering of the Securities
other than materials contained in the Disclosure Package, the Final Memorandum
or any other offering materials prepared by or with the prior written consent of
the Representatives.
(f) The
Company and the Guarantors will use their best efforts to arrange, if necessary,
for the qualification of the Securities for sale by the Initial Purchasers under
the laws of such jurisdictions as the Representatives may reasonably designate
(including Japan and certain provinces of Canada) 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 or any Guarantor 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 in any jurisdiction
where it is not now so subject. The Company will promptly advise the
Representatives of the receipt by the Company or any Guarantor 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.
15
(g) The
Company will not permit any of its Affiliates to, resell any Securities that
have been acquired by any of them, except for Securities resold after the
“40-day distribution compliance period” within the meaning of Rule 903 of
Regulation S: (i) in a transaction registered under the Act or (ii) in a
transaction exempt from the registration requirements under the Act if such
transaction does not cause the holding periods under Rule 144 under the Act to
be extended for other holders of Securities.
(h) Neither
the Company nor any Controlled Affiliate, or any person acting on 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 under the Act.
(i) Neither
the Company nor any Controlled Affiliate, or any person acting on its behalf
will engage in any directed selling efforts (within the meaning of Regulation S)
with respect to the Securities; and each of them will comply with the offering
restrictions requirement of Regulation S.
(j) Neither
the Company nor any Controlled Affiliate, or any person acting on its 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.
(k) For
so long as any of the Securities are outstanding and are “restricted securities”
within the meaning of Rule 144(a)(3) under the Act, the Company, during any period in
which it is not subject to and in compliance with Section 13 or 15(d) of the
Exchange Act, will 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,
and the prospective purchasers designated by such holders, from time to time of
such restricted securities.
(l) The
Company and the Guarantors will cooperate with the Representatives and use their
best efforts to assist the Initial Purchasers in arranging for the Securities to
be eligible for clearance and settlement through The Depository Trust
Company.
(m)
Each of the Securities will bear, to the extent applicable, the legend contained
in “Transfer Restrictions” in the Preliminary Memorandum and the Final
Memorandum for the time period and upon the other terms stated
therein.
(n) Neither
the Company nor any Guarantor will, for a period of 90 days following the Execution
Time, without the prior written consent of Citigroup and Banc of America
Securities LLC, offer, sell, contract to sell, pledge or otherwise 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, any
Guarantor or any of its Affiliates or any person in privity with it, any
Guarantor or any Affiliate of the Company, directly or indirectly, or announce
the offering, of any debt securities issued or guaranteed by the Company or any
Guarantor (other than the Securities).
16
(o) Neither
the Company nor any Guarantor will take, directly or indirectly, any action
designed to, or that has constituted or that 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 or any Guarantor to
facilitate the sale or resale of the Securities.
(p) The
Company will pay the following: (i) any filing fees or other expenses (including
reasonable fees and disbursements of Shearman & Sterling LLP relating to
such registration and qualification) in connection with any registration or
qualification of the Securities for offer and sale under the securities or blue
sky laws of such jurisdictions as the Initial Purchasers may designate and the
printing of memoranda relating thereto, including the several states, Japan, the
provinces of Canada and any other jurisdictions specified pursuant to
Section 5(e), (ii) any fees charged by investment rating agencies for the
rating of the Securities, (iii) any applicable filing fee incident to the review
of the Financial Industry Regulatory Authority of the Securities, (iv) any
travel expenses of the Company’s officers, employees and representatives and any
other expenses of the Company in connection with attending or hosting meetings
with prospective purchasers of the Securities, including one-half the cost of
any aircraft charted in connection with attending or hosting such meetings, (v)
expenses incurred in preparing, printing, reproducing and distributing the
materials contained in the Disclosure Package and the Final Memorandum and each
amendment or supplement to either of them to investors and prospective
investors, (vi) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of
the materials contained in the Disclosure Package and the 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, (vii) the fees of the Trustee; (viii) the issuance and delivery of
the Securities; (ix) any stamp or transfer taxes in connection with the original
issuance and sale of the Securities; (x) 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 the Guarantors; (xi) all fees and expenses incurred
with respect to the negotiating, disclosing, creating and perfecting the
security interests contemplated by the Escrow Agreement; and (xii) 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
this Section 5, and Section 8 hereof, the Initial Purchasers will pay all of
their own costs and expenses, including the fees of their counsel, transfer
taxes on resale of any of the Securities by them, any advertising expenses
connected with any offers they may make, and one-half the cost of any aircraft
charted in connection with attending or hosting meetings with prospective
purchasers of the Securities.
(q) Prior
to the Closing Date, the Notes shall have been secured by the Escrow Property to
the extent and in the manner provided in the Escrow Agreement and as described
in the Disclosure Package and the Final Memorandum.
6. Conditions to the
Obligations of the Initial Purchasers. The obligations of the
Initial Purchasers to purchase the Securities shall be subject to the accuracy
of the representations and warranties of the Company and the Guarantors
contained herein at the Execution Time and the Closing Date, to the accuracy of
the statements of the Company and the Guarantors 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:
17
(a) The
Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for
the Company, to furnish to the Representatives its opinion, dated the Closing
Date and addressed to the Representatives, substantially in the form set forth
in Exhibit B hereto.
(b) The
Representatives shall have received an opinion, dated the Closing Date, of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Counsel of the Company, substantially in the form set
forth in Exhibit C hereto.
(c) The
Representatives shall have received from Shearman & Sterling LLP, counsel
for the Initial Purchasers, such opinion or opinions, dated the Closing Date and
addressed to the Representatives, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Rights Agreement, the Disclosure
Package, the Final Memorandum (as amended or supplemented at the Closing Date)
and other related matters as the Representatives may reasonably require, and the
Company and the Guarantors shall have furnished to such counsel such documents
as they reasonably request for the purpose of enabling them to pass upon such
matters.
(d) The
Company shall have furnished to the Representatives a certificate of the
Company, signed by (x) the Chairman of the Board or the President and (y) the
principal financial or accounting officer of the Company, dated the Closing
Date, in each case acting in such capacity, to the effect that the signers of
such certificate have carefully examined the Disclosure Package and the Final
Memorandum and any supplements or amendments thereto, and this Agreement and
that:
(i) to
the best of his/her knowledge after reasonable investigation, the
representations and warranties of the Company and the Guarantors, in this
Agreement are true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date, and each of the Company and the
Guarantors has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied hereunder at or prior to the Closing
Date; and
(ii) to
the best of his/her knowledge after reasonable investigation, since the date of
the most recent financial statements included in the Disclosure Package and the
Final Memorandum (exclusive of any amendment or supplement thereto), there has
been no material adverse change in the condition (financial or otherwise),
earnings or business 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 Disclosure Package and the Final
Memorandum (exclusive of any amendment or supplement thereto).
(e) At
the Execution Time and at the Closing Date, the Company shall have requested and
caused KPMG LLP to furnish to the Representatives letters, dated respectively as
of the Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives and confirming that they are independent
accountants within the meaning of the Exchange Act and the applicable published
rules and regulations thereunder substantially in the form set forth in Exhibit
D hereto.
18
(f) Subsequent
to the Execution Time, or if earlier, the dates as of which information is given
in the Disclosure Package, (exclusive of any amendment or supplement thereto)
and the Final Memorandum (exclusive of any amendment or supplement thereto),
there shall not have occurred (i) any change or decrease specified in the
letter or letters referred to in paragraph (e) of this Section 6 or any change,
or any development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as one enterprise, whether or not arising
from transactions in the ordinary course of business, except as set forth in or
contemplated in the Disclosure Package (exclusive of any amendment or supplement
thereto) the effect of which, in the sole judgment of the Representatives, is so
material and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Securities as contemplated in the Disclosure
Package and the Final Memorandum (exclusive of any amendment or supplement
thereto); and (ii) any downgrading in the rating of any debt securities of
the Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating).
(g) The
Notes shall be eligible for clearance and settlement through The Depository
Trust Company.
(h) On
the Closing Date, (i) the Company, the Trustee and the Escrow Agent shall have
executed the Escrow Agreement, and the Representatives shall have received
copies thereof, executed by the Company, the Trustee and the Escrow Agent and
such agreement shall be in full force and effect on and as of the Closing Date;
(ii) the Escrow Property equal to the Escrow Redemption Amount shall have been
deposited with the Escrow Agent solely in accordance with the Escrow Agreement;
and (iii) the Trustee shall have a first-priority security interest in the
Escrow Account and the Escrow Property pursuant to the Escrow
Agreement.
(i) Prior
to the Closing Date, the Company shall have furnished to the Representatives
such further information, certificates and documents as the Representatives may
reasonably request.
If any of
the conditions specified in this Section 6 shall not have been fulfilled
when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not reasonably
satisfactory in form and substance to the Representatives 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
Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in
writing.
The
documents required to be delivered by this Section 6 will be delivered at
the office of counsel for the Initial Purchasers, at Shearman & Sterling,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on
the Closing Date.
19
7. Reimbursement of
Expenses. If (a) 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 or any Guarantor to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Initial Purchasers or (b) the Release Date does not occur
by the earlier of (x) the date on which the Company determines the conditions to
the Release Date cannot occur and (y) the Outside Date, the Company and the
Guarantors, jointly and severally, will reimburse the Initial Purchasers
severally through Citigroup on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and
Contribution. a) Each of the Company and the
Guarantors jointly and severally agrees to indemnify and hold harmless each
Initial Purchaser, its partners, members, directors, officers, employees, agents
and its affiliates and each person, if any, who controls such Initial Purchaser
within the meaning of Section 15 of the 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 or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Preliminary Memorandum, the Final Memorandum, any Issuer
Written Information, or in any amendment 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 will reimburse each such indemnified party for any legal or other
out-of-pocket expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the
Company and the Guarantors will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company or the Guarantors by any Initial Purchaser
through the Representatives, specifically for use therein, it being understood
and agreed that the only such information furnished by any Initial Purchaser
consists of the information described below. This indemnity agreement
will be in addition to any liability that Company or any Guarantor may otherwise
have.
(b) Each
Initial Purchaser severally, and not jointly, agrees to indemnify and hold
harmless the Company, each Guarantor, each of its directors, each of its
officers, and each person who controls the Company or any Guarantor within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity to each Initial Purchaser, but only with reference to
written information relating to such Initial Purchaser furnished to the Company
or the Guarantors by or on behalf of such Initial Purchaser through the
Representatives 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 that any Initial
Purchaser may otherwise have. The Company acknowledges that
(i) the statements set forth in the last paragraph of the cover page
regarding delivery of the Securities and (ii), under the heading “Plan of
Distribution”, (A) the table of Initial Purchasers and (B) the tenth
and eleventh paragraphs 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. The indemnifying party
shall not be required to indemnify the indemnified party for any amount paid or
payable by the indemnified party in the settlement or compromise of, or entry
into any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder without
the written consent of the indemnifying party, which consent shall not be
unreasonably withheld.
20
(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 (including local 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, other than local counsel if not appointed by the
indemnifying party, 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 (including local 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 solely if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with an unavoidable 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 that 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
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.
21
(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 Guarantors, on the one hand, and the
Initial Purchasers, on the other, severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending any loss,
claim, damage, liability or action) (collectively “Losses”) to which the
Company, or the Guarantors 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 or the other, on the one hand and by the Initial
Purchasers or the other from the offering of the Securities; provided, however, that in no
case shall any Initial Purchaser 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 Guarantors, on the one hand, and the Initial Purchasers, on the other,
severally shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other, in
connection with the statements or omissions that resulted in such Losses, as
well as any other relevant equitable considerations. Benefits
received by the Company and the Guarantors shall be deemed to be equal to the
total net proceeds from the offering (after deducting purchase discounts and
commissions but before deducting other expenses) received by the Company and the
Guarantors, and benefits received by the Initial Purchasers shall be deemed to
be equal to the total purchase discounts and commissions as set forth in the
Final Memorandum. Relative fault shall be determined by reference to,
among other things, whether any untrue or 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 and the Guarantors on the one hand or the
Initial Purchasers on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company, the Guarantors 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 that
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 an Initial Purchaser within the
meaning of either the Act or the Exchange Act and each partner, member,
director, officer, employee, Affiliate and agent of an Initial Purchaser shall
have the same rights to contribution as such Initial Purchaser, and each person
who controls the Company or any Guarantor within the meaning of either the Act
or the Exchange Act and each officer and director of the Company or any
Guarantor shall have the same rights to contribution as the Company or any
Guarantor, subject in each case to the applicable terms and conditions of this
paragraph (d).
22
9. Default by an Initial
Purchaser. If any one or more 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 or their obligations under this Agreement, the
remaining Initial Purchasers shall be obligated severally to take up and pay for
(in the respective proportions which the principal amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate
principal amount of Securities set forth opposite the names of all the remaining
Initial Purchasers) the Securities which the defaulting Initial Purchaser or
Initial Purchasers agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Securities which the defaulting
Initial Purchaser or Initial Purchasers agreed but failed to purchase shall
exceed 10% of the aggregate principal amount of Securities set forth in
Schedule I hereto, the remaining Initial Purchasers 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 Purchasers do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Initial Purchaser, the Company or any Guarantor. 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 Representatives 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, any
Guarantor 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
Representatives, 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
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such exchange;
(ii) a banking moratorium shall have been declared either by U.S. federal
or New York State authorities; or (iii) there
shall have occurred any outbreak or escalation of hostilities, 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 judgment of
the Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated in the Disclosure Package and 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,
the Guarantors or its or their 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 Guarantor or any of the indemnified 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 Representatives, will be mailed, delivered or telefaxed to the
Citigroup General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and
confirmed to Citigroup at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel; or, if sent to the Company or any
Guarantor, will be mailed, delivered or telefaxed to (▇▇▇) ▇▇▇-▇▇▇▇ and
confirmed to it at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Chief Financial Officer and General Counsel.
13. Successors. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the indemnified persons referred to in
Section 8 hereof and their respective successors, and no other person will
have any right or obligation hereunder.
23
14. Integration. This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company, the Guarantors and the Initial Purchasers, or any of
them, with respect to the subject matter hereof.
15. 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.
16. Waiver of Jury
Trial. Each of the Company and the Guarantors hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby.
17. No Fiduciary
Duty. Each of the Company and the Guarantors hereby
acknowledges that (a) the purchase and sale of the Securities pursuant to this
Agreement is an arm’s-length commercial transaction between the Company and the
Guarantors, on the one hand, and the Initial Purchasers and any Affiliate
through which it may be acting, on the other, (b) the Initial Purchasers are
acting as principal and not as an agent or fiduciary of the Company or any
Guarantor and (c) the Company’s and the Guarantors’ engagement of the Initial
Purchasers in connection with the offering and the
process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, each of the Company and the Guarantors’ agrees that
it is solely responsible for making its own judgments in connection with the
offering (irrespective of whether any of the Initial Purchasers has advised or
is currently advising the Company or any Guarantor on related or other
matters). Each of the Company and the Guarantors agrees that they
will not claim that the Initial Purchasers have rendered advisory services of
any nature or respect, or owe an agency, fiduciary or similar duty to the
Company or any Guarantor, in connection with such transaction or the process
leading thereto.
18. Waiver of Tax
Confidentiality. Notwithstanding anything herein to the
contrary, purchasers of the Securities (and each employee, representative or
other agent of a purchaser) may disclose to any and all persons, without
limitation of any kind, the U.S. tax treatment and U.S. tax structure of any
transaction contemplated herein and all materials of any kind (including
opinions or other tax analyses) that are provided to the purchasers of the
Securities relating to such U.S. tax treatment and U.S tax structure, other than
any information for which nondisclosure is reasonably necessary in order to
comply with applicable securities laws.
19. Counterparts. This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
20. Headings. The
section headings used herein are for convenience only and shall not affect the
construction hereof.
21. Definitions. The
terms that follow, when used in this Agreement, shall have the meanings
indicated.
24
“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.
“Citigroup”
shall mean Citigroup Global Markets Inc.
“Commission”
shall mean the Securities and Exchange Commission.
“Controlled
Affiliate” shall mean any corporation, partnership, joint venture, trust or
other entity or enterprise, that is directly or indirectly controlled by the
Company.
“Disclosure
Package” shall mean (i) the Preliminary Memorandum, as amended or supplemented
at the Execution Time, (ii) the final term sheet prepared pursuant to Section
5(b) hereto and in the form attached as Schedule II hereto and (iii) any Issuer
Written Information.
“Distribution
Period” shall mean the period beginning on the date of this Agreement and ending
on the earlier of (i) the completion of the distribution of the Securities by
the Initial Purchasers (as determined by the Representatives), and (ii) six (6)
months after the date of the Final Memorandum (the “Distribution
Period”).
“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 4:30 p.m. (Eastern time) on the date 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.
“Issuer
Written Information” shall mean any writings in addition to the Preliminary
Memorandum that the parties expressly agree in writing to treat as part of the
Disclosure Package.
“Regulation D”
shall mean Regulation D under the Act.
“Regulation S”
shall mean Regulation S under the Act.
“Regulation
S-X” shall mean Regulation S-X under the Act.
“Trust
Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission promulgated thereunder.
25
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement between the Company, the
Guarantors and the several Initial Purchasers.
|
Very
truly yours,
|
|||
|
Chemtura
Corporation
|
|||
|
By:
|
|||
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||
|
Title: Senior
Vice President and Corporate Controller
|
|||
|
BioLab
Franchise Company, LLC
|
|||
|
Bio-Lab,
Inc.
|
|||
|
Crompton
Colors Incorporated
|
|||
|
Crompton
Holding Corporation
|
|||
|
GLCC
Laurel, LLC
|
|||
|
Great
Lakes Chemical Corporation
|
|||
|
Great
Lakes Chemical Global, Inc.
|
|||
|
GT
Seed Treatment, Inc.
|
|||
|
HomeCare
Labs, Inc.
|
|||
|
Laurel
Industries Holdings, Inc.
|
|||
|
Recreational
Water Products, Inc.
|
|||
|
▇▇▇▇▇
City Road LLC
|
|||
|
as
Guarantors
|
|||
|
By:
|
|||
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
Secretary
|
|||
The
foregoing Agreement is hereby confirmed
and accepted as of the date
first above written.
Citigroup
Global Markets Inc.
Banc of
America Securities LLC
Barclays
Capital Inc.
▇▇▇▇▇
Fargo Securities, LLC
▇▇▇▇▇▇▇,
Sachs & Co.
26
|
By:
|
Citigroup
Global Markets Inc.
|
||||
|
By:
|
|||||
|
By:
|
Banc of America Securities LLC | ||||
|
By:
|
|||||
|
By:
|
Barclays Capital Inc. | ||||
|
By:
|
|||||
|
By:
|
▇▇▇▇▇ Fargo Securities, LLC | ||||
|
By:
|
|||||
|
By:
|
▇▇▇▇▇▇▇, Sachs & Co. | ||||
|
By:
|
|||||
For
themselves and the other several
Initial
Purchasers named in
Schedule I
to the foregoing Agreement.
27
SCHEDULE I
|
Initial Purchasers
|
Principal
Amount of Securities to be Purchased
|
|
|
Citigroup
Global Markets Inc.
|
US$102,375,000
|
|
|
Banc
of America Securities LLC
|
US$102,375,000
|
|
|
Barclays
Capital Inc.
|
US$102,375,000
|
|
|
▇▇▇▇▇
Fargo Securities, LLC
|
US$102,375,000
|
|
|
▇▇▇▇▇▇▇,
Sachs & Co.
|
US$ 45,500,000
|
|
|
Total
|
US$455,000,000
|
SCHEDULE
II
Supplement
dated August 13, 2010
to
Preliminary
Offering Memorandum dated August 10, 2010
$455,000,000
CHEMTURA
CORPORATION
7.875%
Senior Notes due 2018
This
Supplement is qualified in its entirety by reference to the Preliminary Offering
Memorandum. The information in this Supplement supplements the
Preliminary Offering Memorandum and supersedes the information in the
Preliminary Offering Memorandum to the extent inconsistent with the information
in the Preliminary Offering Memorandum. Terms used herein and not
defined herein have the meanings assigned in the Preliminary Offering
Memorandum.
The notes
and the related guarantees have not been registered under the Securities Act of
1933 and are being offered only to (1) “qualified institutional buyers” as
defined in Rule 144A under the Securities Act and (2) outside the United
States to non-U.S. persons in compliance with Regulation S under the Securities
Act.
|
Issuer:
|
Chemtura
Corporation
|
|
Guarantors:
|
Upon
the date the Escrow Conditions are satisfied, all of the Issuer’s current
and future domestic restricted subsidiaries other than the Excluded
Subsidiaries
|
|
Title
of Securities:
|
7.875%
Senior Notes due 2018 (the “Notes”)
|
|
Aggregate
Principal Amount at maturity:
|
$455,000,000
|
|
Final
Maturity Date:
|
September
1, 2018
|
|
Issue
Price:
|
99.269%
plus accrued interest, if any, from August 27, 2010
|
|
Coupon:
|
7.875%
|
|
Yield
Per Annum:
|
8.000%
|
|
Interest
Payment Dates:
|
September
1 and March 1
|
|
Record
Dates:
|
August 15 and February 15
|
|
First
Interest Payment Date:
|
March
1, 2011
|
|
Optional
Redemption:
|
At
any time on or after September 1, 2014, the Issuer may redeem all or a
part of the Notes, at the redemption prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid
interest and Additional Interest, if any, thereon up to, but excluding,
the applicable redemption date (subject to the rights of Holders of Notes
on a relevant record date to receive interest due on an interest payment
date that occurs prior to the redemption date), if redeemed during the
twelve-month period beginning on September 1 of the years indicated
below:
|
|
Year
|
Percentage
|
||||
|
2014
|
103.938 | % | |||
|
2015
|
101.969 | % | |||
|
2016
and thereafter
|
100.000 | % | |||
|
Optional
Redemption with Equity Proceeds:
|
In
addition, at any time prior to September 1, 2013, the Issuer
may, at its option, on any one or more occasions, redeem Notes in an
aggregate principal amount not to exceed 35% of the aggregate principal
amount of Notes issued under the Indenture (including any Additional
Notes) at a redemption price equal to 107.875% of the principal amount,
plus accrued and
unpaid interest and Additional Interest, if any, thereon up to, but
excluding, the redemption date (subject to the rights of Holders of Notes
on a relevant record date to receive interest due on an interest payment
date that occurs prior to the redemption date), with the net cash proceeds
of one or more Equity Offerings; provided that (i) at
least 65% of the aggregate principal amount of Notes issued under the
Indenture (including any Additional Notes) remains outstanding immediately
after the occurrence of such redemption (excluding Notes held by the
Issuer or its Affiliates); and (ii) the redemption must occur
within 90 days of the date of closing of such Equity
Offering.
|
|
Make-Whole
Redemption:
|
At
any time prior to September 1, 2014, the Issuer may redeem all or part of
the Notes, upon not less than 30 nor more than 60 days’ prior notice
mailed by first-class mail to the registered address of each Holder of
Notes or otherwise delivered in accordance with the procedures of DTC, at
a redemption price equal to the sum of (i) 100% of the principal amount
thereof, plus
(ii) the Applicable Premium as of the date of redemption, plus (iii) accrued and
unpaid interest and Additional Interest, if any, thereon up to, but
excluding, the date of redemption (subject to the rights of Holders of
Notes on a relevant record date to receive interest due on
an interest payment date that occurs prior to the redemption
date).
|
|
Special
Mandatory Redemption:
|
In
the event that either (i) the Release Date has not occurred on or prior to
the Escrow End Date or (ii) prior to the Escrow End Date, the Issuer has
determined, in its discretion, that the escrow conditions cannot be
satisfied by such date, the Notes will be redeemed at 101% of the issue
price of the Notes, plus accrued and unpaid
interest including accrual of original issue discount thereon up to, but
excluding, the date of redemption. Upon satisfaction of the
Escrow Conditions, the proceeds from the escrow account will be released
to, and used by, the Issuer as described in the Preliminary Offering
Memorandum. Until the release of the net proceeds, the Issuer
will have no obligations under the Notes except as provided in the
Preliminary Offering Memorandum.
|
|
Change
of Control:
|
101%
|
2
|
Initial
Purchasers:
|
Citigroup
Global Markets Inc., Banc of America Securities LLC, Barclays Capital
Inc., ▇▇▇▇▇ Fargo Securities, LLC and ▇▇▇▇▇▇▇, Sachs &
Co.
|
|
Trade
Date:
|
August
13, 2010
|
|
Settlement
Date:
|
August
27, 2010 (T+10)
|
|
Distribution:
|
144A
and Reg S with registration rights as set forth in the Preliminary
Offering Memorandum
|
|
CUSIP/ISIN
Numbers:
|
144A
CUSIP: 163893 AB6
144A
ISIN: US163893AB60
Regulation
S CUSIP: U1630P AA5
Regulation
S ISIN: USU1630PAA58
|
|
Trustee:
|
U.S.
Bank National Association
|
|
Guarantors/Non-Guarantors:
|
As
of June 30, 2010, on a pro forma basis after
giving effect to the Reorganization Plan and related transactions,
including the entry into the Exit Credit Facilities, the issuance of the
Notes offered hereby and the application of the net proceeds thereof and
of the Term Loan, after excluding intercompany balances and intercompany
guarantees:
·
on a consolidated basis, the Issuer and its Subsidiaries would have
had $304 million of total debt outstanding other than the Notes,
comprising (i) $300 million of debt under the Exit Credit Facilities
and (ii) $4 million of other third-party debt;
·
on a combined basis, the Guarantors would have had no outstanding
debt (other than the Guarantees under the Exit Credit Facilities and the
Notes); and
·
on a combined basis, the Restricted Subsidiaries, other than the
Guarantors, would have had total liabilities (including trade payables) of
$502 million, including $4 million of debt, and total assets of
$1.4 billion.
For
the twelve months ended June 30, 2010, on a pro forma basis after
giving effect to the Reorganization Plan and related transactions,
including the entry into the Exit Credit Facilities, the issuance of the
Notes offered hereby and the application of the net proceeds thereof and
of the Term Loan, the non-guarantor Subsidiaries would have generated
approximately 45% of the Issuer’s net sales, approximately 5% of the
Issuer’s net loss and approximately 30% of the Issuer’s consolidated
Adjusted EBITDA. As of June 30, 2010, the non-guarantor
Subsidiaries represented 47% of the Issuer’s total
assets.
|
3
SCHEDULE III
Subsidiary
Guarantors
BioLab
Franchise Company, LLC
Bio-Lab,
Inc.
Crompton
Colors Incorporated
Crompton
Holding Corporation
GLCC
Laurel, LLC
Great
Lakes Chemical Corporation
Great
Lakes Chemical Global, Inc.
GT Seed
Treatment, Inc.
HomeCare
Labs, Inc.
Laurel
Industries Holdings, Inc.
Recreational
Water Products, Inc.
▇▇▇▇▇
City Road LLC
ANNEX
A
Significant
Subsidiaries
[List to
come.]
EXHIBIT
B
Form of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP Opinion and Negative Assurance Letter
[Final
version of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP Opinion and Negative Assurance Letter
remains subject to agreement by the Initial Purchasers and Shearman &
Sterling LLP].
EXHIBIT
C
Form of
General Counsel Opinion
[Final
version of General Counsel Opinion remains subject to agreement by the Initial
Purchasers and Shearman & Sterling LLP].
EXHIBIT
D
KPMG
Comfort Letter