EXHIBIT 10.27
$320,000,000
MAIL-WELL I CORPORATION
7 7/8% SENIOR SUBORDINATED NOTES DUE 2013
PURCHASE AGREEMENT
January 21, 2004
CREDIT SUISSE FIRST BOSTON LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentleman:
1. Introductory. Mail-Well I Corporation, a Delaware
corporation (the "COMPANY"), proposes, subject to the terms and conditions
stated herein, to issue and sell to Credit Suisse First Boston LLC ("CSFB"
or the "PURCHASER") $320,000,000 principal amount of its 7 7/8% Senior
Subordinated Notes due 2013 (the "NOTES") to be issued under an indenture,
dated as of January 4, 2004 (the "INDENTURE"), among the Company, the
guarantors named therein and U.S. Bank National Association, as Trustee, and
guaranteed (the "GUARANTEES") by the Company's parent company, Mail-Well,
Inc. (the "PARENT COMPANY") and the Company's domestic subsidiaries set
forth on the signature pages hereof (the Parent Company and such
subsidiaries are collectively referred to as the "GUARANTORS"). The Notes
and the Guarantees are referred to collectively as the "OFFERED SECURITIES."
The Company and the Guarantors are collectively referred to as the
"ISSUERS." The U. S. Securities Act of 1933 is herein referred to as the
"SECURITIES ACT."
Holders (including subsequent transferees) of the Offered
Securities will have the registration rights set forth in the registration
rights agreement (the "REGISTRATION RIGHTS AGREEMENT"), to be dated the
Closing Date (as defined below), in substantially the form of Exhibit I
hereto, for so long as such Offered Securities constitute "TRANSFER
RESTRICTED SECURITIES" (as defined in the Registration Rights Agreement).
Pursuant to the Registration Rights Agreement, the Issuers will agree to
file with the Securities and Exchange Commission (the "COMMISSION") under
the circumstances set forth therein, (i) a registration statement under the
Securities Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating to the
Offered Securities in a like aggregate principal amount as the Issuers
issued under the Indenture, identical in all material respects to the
Offered Securities and registered under the Securities Act (the "EXCHANGE
SECURITIES"), to be offered in exchange for the Offered Securities (such
offer to exchange being referred to as the "EXCHANGE OFFER") and (ii) a
shelf registration statement pursuant to Rule 415 under the Securities Act
(the "SHELF REGISTRATION STATEMENT" and, together with the Exchange
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Offer Registration Statement, the "REGISTRATION STATEMENTS") relating to the
resale by certain holders of the Offered Securities and to use their
reasonable best efforts to cause such Registration Statements to be declared
and remain effective and usable for the periods specified in the
Registration Rights Agreement and to consummate the Exchange Offer. The
Offered Securities and the Exchange Securities are referred to collectively
as the "SECURITIES."
The Issuers hereby agree with the Purchaser as follows:
2. Representations and Warranties of the Issuers. Each
of the Issuers, jointly and severally, represents and warrants to,
and agrees with, the Purchaser that:
(a) A preliminary offering circular and an offering
circular relating to the Offered Securities to be offered by the
Purchaser have been prepared by the Issuers. Such preliminary
offering circular (the "PRELIMINARY OFFERING CIRCULAR") and
offering circular (the "OFFERING CIRCULAR"), as supplemented as of
the date of this Agreement, together with any other document
approved by the Issuers for use in connection with the contemplated
resale of the Offered Securities are hereinafter collectively
referred to as the "OFFERING DOCUMENT." On the date of this
Agreement, the Offering Document does not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or 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 Offering Document
based upon written information furnished to the Issuers by the
Purchaser specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(b) hereof.
(b) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Offering Document; and the Company is duly qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification.
(c) Each subsidiary of the Company and the Parent
Company has been duly formed and is an existing corporation,
limited partnership or limited liability company, as the case may
be, in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Offering Document; and each subsidiary of the Company and the
Parent Company is duly qualified to do business as a foreign
corporation, partnership or limited liability company, as the case
may be, in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification except where the failure to be so
qualified does not or would not individually or in the aggregate
have a material adverse effect on the condition (financial or
other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole ("MATERIAL ADVERSE
EFFECT"); all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and except as described
in the Offering Document the
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capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects.
(d) The Indenture has been duly authorized; the Offered
Securities have been duly authorized; and when the Offered
Securities are delivered and paid for pursuant to this Agreement on
the Closing Date (as defined below), the Indenture will have been
duly executed and delivered, such Offered Securities will have been
duly executed, authenticated, issued and delivered and will conform
to the description thereof contained in the Offering Document and
the Indenture and such Offered Securities will constitute valid and
legally binding obligations of the Issuers, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights
and to general equity principles.
(e) Except as disclosed in the Offering Document, there
are no contracts, agreements or understandings between any of the
Issuers and any person that would give rise to a valid claim
against any of the Issuers or the Purchaser for a brokerage
commission, finder's fee or other like payment in connection with
the transactions contemplated by this Agreement.
(f) No consent, approval, authorization, or order of,
or filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
this Agreement, the Registration Rights Agreement and the Offering
Document in connection with the issuance and sale of the Offered
Securities by the Issuers except such as may be required under
state securities laws, the filing of the Exchange Offer
Registration Statement or the Shelf Registration Statement with the
Commission and the order of the Commission declaring the Exchange
Offer Registration Statement or the Shelf Registration Statement
(each as defined in the Registration Rights Agreement) effective.
(g) The execution, delivery and performance of the
Indenture, this Agreement and the Registration Rights Agreement,
and the issuance and sale of the Offered Securities and compliance
with the terms and provisions thereof will not result in a breach
or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Parent Company, the Company or any
subsidiary of the Company or any of their properties, or any
agreement or instrument to which the Parent Company, the Company or
any such subsidiary is a party or by which the Parent Company, the
Company or any such subsidiary is bound or to which any of the
properties of the Parent Company, the Company or any such
subsidiary is subject, or the charter or by-laws of the Parent
Company, the Company or any such subsidiary, and the Company has
full power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement.
(h) This Agreement has been duly authorized, executed
and delivered by the Issuers.
(i) Except as disclosed in the Offering Document, the
Company and its subsidiaries have good and marketable title to all
real properties and all other properties and assets owned by them,
in each case free from liens, encumbrances and defects that would
materially interfere with
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the use made or to be made thereof by them; and except as disclosed
in the Offering Document, the Company and its subsidiaries hold any
leased real or personal property under valid and enforceable leases
with no exceptions that would materially interfere with the use
made or to be made thereof by them.
(j) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to
the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(k) No labor dispute with the employees of the Company
or any subsidiary exists or, to the knowledge of the Issuers, is
imminent that might have a Material Adverse Effect.
(l) The Company and its subsidiaries own, possess or
can acquire on reasonable terms, adequate trademarks, trade names
and other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct
the business now operated by them, or presently employed by them,
and have not received any notice of infringement of or conflict
with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect.
(m) Except as disclosed in the Offering Document,
neither the Parent Company, the Company nor any of its subsidiaries
is in violation of any statute, any rule, regulation, decision or
order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a
claim.
(n) Except as disclosed in the Offering Document, there
are no pending actions, suits or proceedings against or affecting
the Parent Company, the Company, any of its subsidiaries or any of
their respective properties that, if determined adversely to the
Parent Company, the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Issuers to
perform their obligations under the Indenture, this Agreement or
the Registration Rights Agreement or which are otherwise material
in the context of the sale of the Offered Securities; and no such
actions, suits or proceedings are threatened or, to the Issuers'
knowledge, contemplated.
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(o) The financial statements included in the Offering
Document present fairly the financial position of the Parent
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown,
and, except as otherwise disclosed in the Offering Document, such
financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States
applied on a consistent basis; and the assumptions used in
preparing the pro forma financial statements included in the
Offering Document provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or
events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
(p) Except as disclosed in the Offering Document, since
the date of the latest audited financial statements included in the
Offering Document there has been no material adverse change, nor
any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken
as a whole, and, except as disclosed in or contemplated by the
Offering Document, there has been no dividend or distribution of
any kind declared, paid or made by the Parent Company on any class
of its capital stock or by the Company, except for distributions
totaling not more than $2.5 million from the Company to the Parent
Company in the ordinary course of business, on any class of its
capital stock.
(q) The Company is not an open-end investment company,
unit investment trust or face-amount certificate company that is or
is required to be registered under Section 8 of the U.S. Investment
Company Act of 1940 (the "INVESTMENT COMPANY ACT"); and the
Company is not and, after giving effect to the offering and sale of
the Offered Securities and the application of the proceeds thereof
as described in the Offering Document, will not be an "investment
company" as defined in the Investment Company Act.
(r) No securities of the same class (within the meaning
of Rule 144A(d)(3) under the Securities Act) as the Offered
Securities are listed on any national securities exchange
registered under Section 6 of the U.S. Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), or quoted in a U.S.
automated inter-dealer quotation system.
(s) The offer and sale of the Offered Securities in the
manner contemplated by this Agreement will be exempt from the
registration requirements of the Securities Act by reason of
Section 4(2) thereof and Regulation S and Rule 144A thereunder; and
it is not necessary to qualify an indenture in respect of the
Offered Securities under the United States Trust Indenture Act of
1939, as amended (the "TRUST INDENTURE ACT").
(t) Neither the Parent Company, nor any of its
affiliates, nor any person acting on its or their behalf (i) has,
within the six-month period prior to the date hereof, offered or
sold in the United States or to any U.S. person (as such terms are
defined in Regulation S under the Securities Act) the Offered
Securities or any security of the same class or series as the
Offered Securities or (ii) has offered or will offer or sell the
Offered Securities (A) in the United States by means of any form of
general solicitation or general advertising within the meaning of
Rule
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502(c) under the Securities Act or (B) with respect to any such
securities sold in reliance on Rule 903 of Regulation S
("REGULATION S") under the Securities Act, by means of any directed
selling efforts within the meaning of Rule 902(c) of Regulation S.
The Parent Company, its affiliates and any person acting on its or
their behalf have complied and will comply with the offering
restrictions requirement of Regulation S. The Company has not
entered and will not enter into any contractual arrangement with
respect to the distribution of the Offered Securities except for
this Agreement.
(u) There is no "substantial U.S. market interest" as
defined in Rule 902(j) of Regulation S in the debt securities of
any of the Issuers.
(v) On the Closing Date, the Indenture will conform in
all material respects to the requirements of the Trust Indenture
Act, and the rules and regulations of the Commission applicable to
an indenture which is qualified thereunder.
On the Closing Date, the Exchange Securities will have
been duly authorized by the Issuers; and when the Exchange
Securities are issued, executed and authenticated in accordance
with the terms of the Exchange Offer and the Indenture, the
Exchange Securities will be entitled to the benefits of the
Indenture and will be the valid and legally binding obligations of
the Issuers, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
On the Closing Date, the Guarantee to be endorsed on
the Offered Securities by each Guarantor will have been duly
authorized by such Guarantor, and will have been duly executed and
delivered by each such Guarantor and will conform to the
description thereof contained in the Offering Document. When the
Offered Securities have been issued, executed and authenticated in
accordance with the Indenture and delivered to and paid for by the
Purchaser in accordance with the terms of this Agreement, the
Guarantee of each Guarantor endorsed thereon will constitute valid
and legally binding obligations of such Guarantor, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights
and to general equity principles.
On the Closing Date, the Guarantee to be endorsed on
the Exchange Securities by each Guarantor will have been duly
authorized by such Guarantor; and, when issued, will have been duly
executed and delivered by each such Guarantor and will conform to
the description thereof contained in the Offering Document. When
the Exchange Securities have been issued, executed and
authenticated in accordance with the terms of the Exchange Offer
and the Indenture, the Guarantee of each Guarantor endorsed thereon
will constitute valid and legally binding obligations of such
Guarantor, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
On the Closing Date, the Registration Rights Agreement
will have been duly authorized, executed and delivered by the
Issuers. When the Registration Rights Agreement has
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been duly executed and delivered, the Registration Rights Agreement
will be a valid and binding agreement of the Issuers, enforceable
against each Issuer in accordance with its terms, (x) except as to
rights of indemnity or contribution, or both, that may be limited
by state and Federal laws or public policy underlying such laws and
(y) subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles. On the Closing Date, the Registration
Rights Agreement will conform to the description thereof in the
Offering Circular.
Except as set forth in the Offering Document, there are
no contracts, agreements or understandings between any Issuer and
any person granting such person the right to require such Issuer to
file a registration statement under the Securities Act with respect
to any securities of such Issuer or to require such Issuer to
include such securities with the Exchange Securities registered
pursuant to any Registration Statement.
Neither the Company nor any of its subsidiaries nor any
agent thereof acting on behalf of them has taken, and none of them
will take, any action that might cause this Agreement or the
issuance or sale of the Offered Securities to violate Regulation T,
Regulation U or Regulation X of the Board of Governors of the
Federal Reserve System.
3. Purchase, Sale and Delivery of Offered Securities.
On the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth, as of
the Closing Date, the Issuers agree to sell to the Purchaser, and the
Purchaser agrees to purchase from the Issuers, the Offered Securities at a
purchase price of 98% of the principal amount thereof.
The Issuers will deliver against payment of the purchase
price the Offered Securities to be offered and sold by the Purchaser in
reliance on Regulation S (the "REGULATION S SECURITIES") in the form of one
or more permanent global Securities in registered form without interest
coupons (the "OFFERED REGULATION S GLOBAL SECURITIES") which will be
deposited with the Trustee as custodian for The Depository Trust Company
("DTC") and registered in the name of Cede & Co., as nominee for DTC. The
Issuers will deliver against payment of the purchase price the Offered
Securities to be purchased by the Purchaser hereunder and to be offered and
sold by the Purchaser in reliance on Rule 144A under the Securities Act (the
"144A SECURITIES") in the form of one permanent global security in
definitive form without interest coupons (the "RESTRICTED GLOBAL
SECURITIES") deposited with the Trustee as custodian for DTC and registered
in the name of Cede & Co., as nominee for DTC. The Regulation S Global
Securities and the Restricted Global Securities shall be assigned separate
CUSIP numbers. The Restricted Global Securities shall include the legend
regarding restrictions on transfer set forth under "Transfer Restrictions"
in the Offering Document.
Payment for the Regulation S Securities and the 144A
Securities shall be made by the Purchaser in Federal (same day) funds by
wire transfer to an account at a bank acceptable to the Purchaser and
delivery of the Offered Securities will take place at the office of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP at 9:00 A.M. (New York time), on February 4, 2004, or
at such other time not later than seven full business days thereafter as the
Purchaser and the Company determine, such time being herein referred to as
the "CLOSING DATE", against delivery to the Trustee as custodian for DTC of
(i) the Regulation S Global Securities representing all of the Regulation S
Securities and (ii) the Restricted Global Securities
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representing all of the 144A Securities. The Regulation S Global Securities
and the Restricted Global Securities will be made available for checking at
the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP at least 24 hours prior to the
Closing Date.
4. Representations by Purchaser; Resale by Purchaser.
(a) The Purchaser represents and warrants to the Company that it is an
"accredited investor" within the meaning of Regulation D under the
Securities Act.
(b) The Purchaser acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be offered or
sold within the United States except pursuant to an exemption from, or a
transaction not subject to, the registration requirements of the Securities
Act. The Purchaser represents and agrees that it has not offered or sold and
will not offer or sell, any Offered Securities constituting part of its
allotment within the United States, except in accordance with Rule 903 or
Rule 144A under the Securities Act. Accordingly, neither such Purchaser nor
its affiliates, nor any persons acting on its or their behalf, have engaged
or will engage in any directed selling efforts with respect to the Offered
Securities. Terms used in this subsection (b) have the meanings given to
them by Regulation S.
(c) The Purchaser agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for any such arrangements with the prior written consent of the
Issuers.
(d) The Purchaser agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United
States by means of any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act, including, but
not limited to (i) any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio or other electronic medium, including the Internet, or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. The Purchaser agrees, with respect to
resales made in reliance on Rule 144A of any of the Offered Securities, to
deliver either with the confirmation of such resale or otherwise prior to
settlement of such resale a notice to the effect that the resale of such
Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) The Purchaser represents and agrees that (i) it has
not offered or sold and prior to the date six months after the date of issue
of the Offered Securities will not offer or sell any Offered Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has 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 Act 2000 (the
"FSMA")) received by it in connection with the issue or sale of any Offered
Securities in circumstances in which section 21(1) of the FSMA does not
apply to the Company or any Guarantor; and (iii) it has complied and will
comply with all applicable provisions of the FSMA with respect to anything
done by it in relation to the Offered Securities in, from or otherwise
involving the United Kingdom.
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5. Certain Agreements of the Issuers. The Issuers agree
with the Purchaser that:
(a) The Issuers will advise the Purchaser promptly of
any proposal to amend or supplement the Offering Document and will
not effect such amendment or supplementation without the
Purchaser's consent. If, at any time prior to the completion of the
resale of the Offered Securities by the Purchaser, any event occurs
as a result of which the Offering Document as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any such
time to amend or supplement the Offering Document to comply with
any applicable law, the Issuers promptly will notify the Purchaser
of such event and promptly will prepare, at their own expense, an
amendment or supplement which will correct such statement or
omission or effect such compliance. Neither the Purchaser's consent
to, nor the Purchaser's delivery to offerees or investors of, any
such amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section 6.
(b) The Issuers will furnish to the Purchaser copies of
any preliminary offering circular, the Offering Document and all
amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Purchaser requests, and
the Issuers will furnish to the Purchaser on the date hereof three
copies of the Offering Document, one of which will include the
independent accountants' reports therein manually signed by such
independent accountants. At any time when the Issuers are not
subject to Section 13 or 15(d) of the Exchange Act, the Issuers
will promptly furnish or cause to be furnished to the Purchaser
and, upon request of holders and prospective purchasers of the
Offered Securities, to such holders and purchasers, copies of the
information required to be delivered to holders and prospective
purchasers of the Offered Securities pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision thereto) in
order to permit compliance with Rule 144A in connection with
resales by such holders of the Offered Securities. The Issuers will
pay the expenses of printing and distributing to the Purchaser all
such documents.
(c) The Issuers will arrange for the qualification of
the Offered Securities for sale and the determination of their
eligibility for investment under the laws of such jurisdictions in
the United States and Canada as the Purchaser designates and will
continue such qualifications in effect so long as required for the
resale of the Offered Securities by the Purchaser, provided that
the Issuers will not be required to qualify as a foreign
corporation or to file a general consent to service of process in
any such state.
(d) During the period of five years hereafter, the
Issuers will furnish to the Purchaser as soon as practicable after
the end of each fiscal year, a copy of the Parent Company's annual
report to shareholders for such year; and the Issuers will furnish
to the Purchaser (i) as soon as available, a copy of each report
and any definitive proxy statement Issuers filed with the
Commission under the Exchange Act or mailed to shareholders, and
(ii) from time to time, such other information concerning the
Issuers as the Purchaser may reasonably request.
(e) During the period of two years after the Closing
Date, the Issuers will,
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upon request, furnish to the Purchaser and any holder of Offered
Securities a copy of the restrictions on transfer applicable to the
Offered Securities.
(f) During the period of two years after the Closing
Date, the Issuers will not, and will not permit any of its
affiliates (as defined in Rule 144 under the Securities Act) to,
resell any of the Offered Securities that have been reacquired by
any of them.
(g) During the period of two years after the Closing
Date, the Issuers will not be or become, an open-end investment
company, unit investment trust or face-amount certificate company
that is or is required to be registered under Section 8 of the
Investment Company Act.
(h) The Issuers will pay all expenses incidental to the
performance of its obligations under this Agreement, the Indenture,
and the Registration Rights Agreement, including (i) the fees and
expenses of the Trustee and its professional advisers; (ii) all
expenses in connection with the execution, issue, authentication,
packaging and initial delivery of the Offered Securities and, as
applicable, the Exchange Securities, the preparation and printing
of this Agreement, the Registration Rights Agreement, the Offered
Securities, the Indenture, the Offering Document and amendments and
supplements thereto, and any other document relating to the
issuance, offer, sale and delivery of the Offered Securities and as
applicable, the Exchange Securities; (iii) the cost of qualifying
the Offered Securities for trading in The PortalSM Market
("PORTAL") and any expenses incidental thereto; (iv) the cost of
any advertising approved by the Issuers in connection with the
issue of the Offered Securities; (v) for any expenses (including
fees and disbursements of counsel) incurred in connection with
qualification of the Offered Securities or the Exchange Securities
for sale under the laws of such jurisdictions in the United States
and Canada as the Purchaser designates and the printing of
memoranda relating thereto; (vi) for any fees charged by investment
rating agencies for the rating of the Securities or the Exchange
Securities; and (vii) for expenses incurred in distributing
preliminary offering circulars and the Offering Document (including
any amendments and supplements thereto) to the Purchaser. The
Issuers will also pay or reimburse the Purchaser (to the extent
incurred by them) for all travel expenses of the Purchaser (to the
extent reasonable) and the Issuers officers and employees and any
other expenses of the Purchaser (to the extent reasonable) and the
Issuers in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities from the
Purchaser.
(i) In connection with the offering, until the
Purchaser shall have notified the Issuers of the completion of the
resale of the Offered Securities, none of the Issuers nor any of
their respective affiliates has or will, either alone or with one
or more other persons, bid for or purchase for any account in which
it or any of its affiliates has a beneficial interest any Offered
Securities or attempt to induce any person to purchase any Offered
Securities; and neither it nor any of its affiliates will make bids
or purchases for the purpose of creating actual, or apparent,
active trading in, or of raising the price of, the Offered
Securities.
(j) For a period of 180 days after the date of the
initial offering of the Offered Securities by the Purchaser, none
of the Issuers will offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any United States
dollar-denominated debt securities
-11-
issued or guaranteed by any of the Issuers and having a maturity of
more than one year from the date of issue or publicly disclose the
intention to make any such offer, sale, pledge, disposition or
filing. None of the Issuers will at any time offer, sell, contract
to sell, pledge or otherwise dispose of, directly or indirectly,
any securities under circumstances where such offer, sale, pledge,
contract or disposition would cause the exemption afforded by
Section 4(2) of the Securities Act or the safe harbor of Regulation
S thereunder to cease to be applicable to the offer and sale of the
Offered Securities.
6. Conditions of the Obligations of the Purchaser. The
obligations of the Purchaser to purchase and pay for the Offered Securities
will be subject to the accuracy of the representations and warranties on the
part of the Issuers herein, to the accuracy of the statements of officers of
the Issuers made pursuant to the provisions hereof, to the performance by
the Issuers of their respective obligations hereunder and to the following
additional conditions precedent:
(a) The Purchaser shall have received a letter, dated
the date of this Agreement, of Ernst & Young LLP in form and
substance satisfactory to the Purchaser concerning the financial
information with respect to the Issuers set forth in the Offering
Document.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the
judgment of the Purchaser, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Offered
Securities, whether in the primary market or in respect of dealings
in the secondary market, or (ii) (A) any change, or any development
or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations
of the Company or its subsidiaries which, in the judgment of the
Purchaser, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the offering or the sale
of and payment for the Offered Securities; (B) any downgrading in
the rating of any debt securities of any Issuer by any "nationally
recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities of any Issuer (other than
an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating) or
any announcement that any Issuer has been placed on negative
outlook; (C) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading
of any securities of the Issuers on any exchange or in the
over-the-counter market; (D) any banking moratorium declared by
U.S. Federal or New York authorities; (E) any major disruption of
settlements of securities; or (F) any attack on, outbreak or
escalation of major hostilities or act of terrorism in which the
United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or
emergency if, in the judgment of the Purchaser, the effect of any
such attack, outbreak, escalation, act, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the offering or sale of and payment for the Offered
Securities.
(c) The Purchaser shall have received an opinion, dated
the Closing Date, of Faegre & ▇▇▇▇▇▇ LLP, special counsel for the
Company, that:
-12-
(i) The Company has been duly incorporated
and is an existing corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business
as described in the Offering Document; and the Company is
duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its
business requires such qualification, except where failure
to be so qualified would not have a Material Adverse
Effect;
(ii) The Indenture has been duly authorized,
executed and delivered by the Company and each Guarantor
and, assuming due authorization, execution and delivery
thereof by the Trustee, the Indenture constitutes a
legally valid and binding agreement of each of the
Issuers, enforceable against each of the Issuers in
accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability
relating to or affecting creditors' rights and general
equity principles; the Notes have been duly authorized by
the Company and, when executed, authenticated and issued
in accordance with the terms of the Indenture and
delivered to and paid for by the Purchaser in accordance
with this Agreement, the Notes will be legally valid and
binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights
and to general equity principles;
(iii) No consent, approval, authorization or
order of, or filing with, any governmental agency or body
or any court is required for the consummation of the
transactions contemplated by this Agreement and the
Registration Rights Agreement in connection with the
issuance or sale of the Offered Securities by the Issuers,
except (y) such as may be required under state securities
laws and (z) the filing of the Exchange Offer Registration
Statement or the Shelf Registration Statement with the
Commission and the order of the Commission declaring the
Exchange Offer Registration Statement or the Shelf
Registration Statement effective;
(iv) There are no pending actions, suits or
proceedings against the Company, any of its subsidiaries
or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse
Effect, or would materially and adversely affect the
ability of any Issuer to perform its obligations under the
Indenture, this Agreement or the Registration Rights
Agreement, and no such actions, suits or proceedings are,
to such counsel's knowledge, threatened or contemplated;
(v) The execution, delivery and performance
by the Company and the Guarantors of the Indenture, this
Agreement and the Registration Rights Agreement, and the
issuance and sale of the Offered Securities and compliance
with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body or
any court having jurisdiction over the Company or any
Guarantor or any of their properties, or any agreement or
instrument to which the
-13-
Company or any such Guarantor is a party or by which the
Company or any such Guarantor is bound or to which any of
the properties of the Company or any such Guarantor is
subject, or the charter or by-laws of the Company or any
such Guarantor, and the Issuers have the corporate power
and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement;
(vi) The descriptions in the Offering Circular
of statutes, certain U.S. federal income tax
considerations, legal and governmental proceedings and
contracts and other documents are accurate and fairly
present the information required to be shown;
(vii) This Agreement and the Registration
Rights Agreement have each been duly authorized, executed
and delivered by the Issuers;
(viii) It is not necessary in connection with
(i) the offer, sale and delivery of the Offered Securities
by the Issuers to the Purchaser pursuant to this Agreement
or (ii) the resales of the Offered Securities by the
Purchaser in the manner contemplated by this Agreement, to
register the Offered Securities under the Securities Act
or to qualify an indenture in respect thereof under the
Trust Indenture Act of 1939, as amended (the "TIA");
(ix) The Indenture meets the requirements for
qualification under the TIA and the rules and regulations
of the Commission applicable to an indenture which is
qualified thereunder;
(x) The Exchange Securities have been
duly authorized by the Company; and when the Exchange
Securities are executed, issued and authenticated in
accordance with the terms of the Exchange Offer and the
Indenture, the Exchange Securities will be entitled to the
benefits of the Indenture and will be the legally valid
and binding obligations of the Company, enforceable
against the Company in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights
and to general equity principles;
(xi) The Guarantees to be endorsed on the Notes
have been duly authorized by each Guarantor, and when
executed and delivered in accordance with the terms of the
Indenture will, upon due execution and delivery of the
Notes by the Company and due authentication of the Notes
by the Trustee against payment therefor in accordance with
the terms of the Indenture and this Agreement, be the
legally valid and binding obligations of each of the
Guarantors, enforceable against the Guarantors in
accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general
equity principles;
(xii) The Guarantees to be endorsed on the
Exchange Securities have been duly authorized by each
Guarantor, and when executed and delivered in accordance
with the Indenture will, upon due execution and delivery
of the Exchange Securities by the
-14-
Company and due authentication of the Exchange Securities
by the Trustee against exchange therefor in accordance
with the Indenture and this Agreement, be the legally
valid and binding obligations of each Guarantor,
enforceable against each Guarantor in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; and
(xiii) To such counsel's knowledge, there are
no contracts, agreements or understandings between any
Issuer and any person granting such person the right to
require such Issuer to file a registration statement under
the Securities Act with respect to any securities of such
Issuer or to require such Issuer to include such
securities with the Securities and Guarantees registered
pursuant to any Registration Statement.
In addition, such letter shall contain a paragraph stating that
such counsel has participated in reviews and discussions in
connection with the preparation of the Offering Circular, and in
the course of such reviews and discussions and such other
investigations as such counsel has deemed necessary, no facts came
to such counsel's attention that lead such counsel to believe that
the Offering Circular (except as to the financial statements and
other related financial and other related statistical data
contained therein, as to all of which such counsel does not need to
express a belief), as of the date hereof and as of the Closing
Date, contained any untrue statement of a material fact required to
be stated therein or omitted to state any material fact required to
be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
(d) The Purchaser shall have received from ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Purchaser, an opinion, dated
the Closing Date, with respect to the incorporation of the Company,
the validity of the Offered Securities, the Offering Circular, the
exemption from registration for the offer and sale of the Offered
Securities by the Issuers to the Purchaser and the resales by the
Purchaser as contemplated hereby and other related matters as the
Purchaser may require, and the Issuers shall have furnished to such
counsel such documents as they request for the purpose enabling
them to pass upon such matters.
(e) The Purchaser shall have received a certificate,
dated the Closing Date, of the President or any Vice President and
a principal financial or accounting officer of each Issuer in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties
of the Issuers in this Agreement are true and correct, that such
Issuer has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, and that, subsequent to the dates of the
most recent financial statements in the Offering Document there has
been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations
of the Company and its subsidiaries taken as a whole except as set
forth in or contemplated by the Offering Document or as described
in such certificate.
(f) The Purchaser shall have received a letter, dated
the Closing Date, of Ernst & Young LLP which meets the requirements
of subsection (a) of this Section.
-15-
(g) The requisite lenders and agents under the
Company's senior credit agreement shall have consented in writing
to the issuance of the Offered Securities and the use of proceeds
therefrom as contemplated by this Agreement, and such consent shall
be in form and substance reasonably satisfactory to the Purchaser
and the Company.
(h) The Company's offer to purchase and solicitation
for consents (the "OFFER TO PURCHASE") relating to its 8 3/4%
senior subordinated notes due 2008 (the "EXISTING NOTES") pursuant
to the Offer to Purchase and Consent Solicitation Statement dated
January 21, 2004 attached hereto as Exhibit II, (the "OFFER TO
PURCHASE AND CONSENT SOLICITATION STATEMENT") shall have commenced
and to the extent such Existing Notes have not been validly
tendered and accepted for redemption pursuant to the Offer to
Purchase, the Company shall have irrevocably called for redemption
all of its outstanding Existing Notes and shall provide evidence
thereof reasonably satisfactory to the Purchaser.
(i) Subsequent to the execution and delivery of this
Agreement, no "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule
436(g)(2) under the Securities Act (i) has imposed (or has informed
any Issuer that it is considering imposing) any condition
(financial or otherwise) on an Issuer retaining any rating assigned
to any debt securities of such Issuer or (ii) has indicated to any
Issuer that it is considering (a) the downgrading, suspension, or
withdrawal of, or any review for a possible change that does not
indicate the direction of the possible change in, any rating so
assigned or (b) any change in the outlook for any rating on the
debt securities of such Issuer.
The Issuers will furnish the Purchaser with such conformed
copies of such opinions, certificates, letters and documents as the
Purchaser reasonably requests. The Purchaser may in its sole discretion
waive compliance with any conditions to the obligations of the Purchaser
hereunder, whether in respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) Each of
the Issuers will indemnify and hold harmless the Purchaser, its partners,
directors and officers and each person, if any, who controls such Purchaser
within the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such Purchaser
may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any breach of any
of the representations and warranties of the Company contained herein or any
untrue statement or alleged untrue statement of any material fact contained
in the Offering Document, or any amendment or supplement thereto, or any
related preliminary offering circular, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
including any losses, claims, damages or liabilities arising out of or based
upon any Issuer's failure to perform its obligations under Section 5(a) of
this Agreement, and will reimburse the Purchaser for any legal or other
expenses reasonably incurred by such Purchaser in connection with
investigating or defending any such loss, claim, damage, liability or action
as such expenses are incurred; provided, however, that the Issuers 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 Issuers
-16-
by the Purchaser specifically for use therein, it being understood and
agreed that the only such information consists of the information described
as such in subsection (b) below.
(b) The Purchaser will indemnify and hold harmless the
Issuers, their respective directors and officers and each person, if any,
who controls the Issuers within the meaning of Section 15 of the Securities
Act, against any losses, claims, damages or liabilities to which the Issuers
may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Offering Document, or any amendment or supplement thereto, or any related
preliminary offering circular, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Issuers by the Purchaser specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the
Issuers in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by the
Purchaser consists of the following information in the Offering Document
furnished on behalf of the Purchaser: under the caption "Plan of
Distribution", the final three paragraphs thereof; provided, however, that
the Purchaser shall not be liable for any losses, claims, damages or
liabilities arising out of or based upon the Issuers' failure to perform its
obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under subsection (a) or
(b) above unless the indemnifying party is materially prejudiced thereby. In
case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless
such settlement includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such action
and does not include a statement as to or an admission of fault, culpability
or failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
-17-
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Issuers on the one hand and
the Purchaser on the other from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the Issuers on the one hand and the Purchaser on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Issuers on the one
hand and the Purchaser on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Issuers bear to the total discounts and
commissions received by the Purchaser from the Issuers under this Agreement.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Issuers or the Purchaser and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), the Purchaser shall not be required to contribute any amount
in excess of the amount by which the total price at which the Offered
Securities purchased by it were resold exceeds the amount of any damages
which such Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
(e) The obligations of the Issuers under this Section
shall be in addition to any liability which the Issuers may otherwise have
and shall extend, upon the same terms and conditions, to each person, if
any, who controls the Purchaser within the meaning of the Securities Act or
the Exchange Act; and the obligations of the Purchaser under this Section
shall be in addition to any liability which the Purchaser may otherwise have
and shall extend, upon the same terms and conditions, to each person, if
any, who controls the Issuers within the meaning of the Securities Act or
the Exchange Act.
8. Survival of Certain Representations and Obligations.
The respective indemnities, agreements, representations, warranties and
other statements of the Issuers or its officers and of the Purchaser set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of the Purchaser, the Issuers or any of their
respective representatives, officers or directors or any controlling person,
and will survive delivery of and payment for the Offered Securities. If for
any reason the purchase of the Offered Securities by the Purchaser is not
consummated, the Issuers shall remain responsible for the expenses to be
paid or reimbursed by it to the Purchaser pursuant to Section 5 and the
respective obligations of the Issuers to the Purchaser and the Purchaser to
the Issuers pursuant to Section 7 shall remain in effect. If the purchase of
the Offered Securities by the Purchaser is not consummated for any reason
other than solely because of the occurrence of any event specified in clause
(C), (D), (E) or (F) of Section 6(b)(ii), the Issuers will reimburse the
Purchaser for all out-of-pocket expenses (including fees and disbursements
of counsel) reasonably incurred by them in connection with the offering of
the Offered Securities.
-18-
9. Notices. All communications hereunder will be
in writing and, if sent to the Purchaser will be mailed, delivered or
telegraphed and confirmed to the Purchaser, c/o Credit Suisse First Boston
LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment
Banking Department - Transactions Advisory Group, or, if sent to the
Issuers, will be mailed, delivered or telegraphed and confirmed to it at
Mail-Well, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel provided, however, that any notice to the
Purchaser pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Purchaser.
10. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors
and the controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder, except that holders of Offered
Securities shall be entitled to enforce the agreements for their benefit
contained in the second and third sentences of Section 5(b) hereof against
the Issuers as if such holders were parties thereto.
11. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same Agreement.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Each Issuer hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in
The City of New York in any suit or proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby.
(Signature Pages Follow)
-19-
If the foregoing is in accordance with the Purchaser's
understanding of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement between
the Issuers and the Purchaser in accordance with its terms.
Very truly yours,
MAIL-WELL I CORPORATION
By:
Name:
Title:
MAIL-WELL, INC.
By:
Name:
Title:
1158673 ONTARIO, INC.
CLASSIC ENVELOPE PLUS, LTD.
CML INDUSTRIES LTD.
DISCOUNT LABELS, INC.
ENVELOPE INC.-ENVELOPPE TRANSIT INC.
INNOVA ENVELOPE INC.
MAIL-WELL ALBERTA FINANCE LP
MAIL-WELL CANADA LEASING COMPANY
MAIL-WELL COMMERCIAL PRINTING, INC.
MAIL-WELL GOVERNMENT PRINTING, INC.
MAIL-WELL MEXICO HOLDINGS, INC.
MAIL-WELL SERVICES LLC
MAIL-WELL TEXAS FINANCE LP
MAIL-WELL WEST, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇ COMPANY
MM&T PACKAGING COMPANY
NATIONAL GRAPHICS COMPANY
PNG INC.
POSER BUSINESS FORMS, INC.
PRECISION FINE PAPERS, INC.
REGIONAL ENVELOPPE PRODUCTS INC.-PRODUCTS
ENVELOPPE
-20-
REGIONAL INC.
SUPREMEX, INC.
WISCO III, L.L.C.
By:
--------------------------------------
Name:
Title:
-21-
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
By
-------------------------------
Name:
Title: