EXHIBIT 1.1
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12% Senior Subordinated Notes due 2008
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PURCHASE AGREEMENT
January 22, 1998
BT Alex. ▇▇▇▇▇ Incorporated
One Bankers Trust Plaza
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Acquisition Corp. (the "Company"), a Delaware corporation,
hereby confirms its agreement with you (the "Initial Purchaser"), as set forth
below.
1. The Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Initial Purchaser
$100,000,000 aggregate principal amount of the Company's 12% Senior Subordinated
Notes due 2008 (the "Notes"). The Notes will be guaranteed (collectively, the
"Guarantees") upon consummation of the Merger (as defined below) on a senior
subordinated basis by each of ATC's Subsidiaries listed on the signature pages
hereof (collectively, and together with any subsidiary that in the future
executes a supplemental indenture pursuant to which such subsidiary agrees to
guarantee the Notes, the "Guarantors"). The Notes and the Guarantees are
collectively referred to herein as the "Securities." The Securities are to be
issued under an indenture (the "Indenture") dated as of January 29, 1998 by and
between the Company and State Street Bank and Trust Company, as trustee (the
"Trustee"). The term "Credit Agreement" as used herein shall have the meaning
provided therefor in the Indenture. The Company, Acquisition Holdings, Inc.
("Holdings") and ATC Group Services, Inc. ("ATC") have entered into a Merger
Agreement dated as of November 26, 1997 (as in effect on the date hereof, the
"Merger Agreement") pursuant to which the Company has offered to purchase (the
"Tender Offer"), pursuant to the terms of that certain Offer to Purchase dated
December 4, 1997 (as in effect on the date hereof, the "Offer to Purchase"), all
of the outstanding shares (the "Shares") of common stock,
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par value $0.01 per share, of ATC. Pursuant to the Merger Agreement, the Company
will be merged into and with ATC (the "Merger"), with ATC as the surviving
corporation. Upon effectiveness of the Merger (the "Effective Time"), ATC will
execute and deliver a supplemental indenture (the "Supplemental Indenture") to
the Indenture, expressly assuming all of the Company's obligations under the
Indenture. Also at the Effective Time, the Company will cause the Guarantors to
execute and deliver the Supplemental Indenture, the Guarantees, this Agreement
and the Registration Rights Agreement (as defined below).
The Securities will be offered and sold to you without being
registered under the Securities Act of 1933, as amended (the "Act"), in reliance
on exemptions therefrom.
In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum dated January 2, 1998 (the
"Preliminary Memorandum") and a final offering memorandum dated January 22, 1998
(the "Final Memorandum," the Preliminary Memorandum and the Final Memorandum
each herein being referred to as a "Memorandum") setting forth or including a
description of the terms of the Securities, the terms of the offering of the
Securities, descriptions of the Company, Holdings, ATC and its subsidiaries and
any material developments relating to the Company, Holdings and ATC occurring
after the date of the most recent historical financial statements included
therein.
The Company understands that the Initial Purchaser proposes to
make an offering of the Notes only on the terms and in the manner set forth in
the Final Memorandum and Section 8 hereof as soon as the Initial Purchaser deems
advisable after this Agreement has been executed and delivered, to persons in
the United States whom the Initial Purchaser reasonably believes to be qualified
institutional buyers ("Qualified Institutional Buyers" or "QIBs") as defined in
Rule 144A under the Act, as such rule may be amended from time to time ("Rule
144A") and outside the United States to certain persons in reliance on
Regulation S under the Act.
The Initial Purchaser and its direct and indirect transferees
of the Securities will be entitled to the benefits of the Registration Rights
Agreement, substantially in the form attached hereto as Exhibit A (the
"Registration Rights Agreement"), pursuant to which the Company has agreed and
the Guarantors will agree, among other things, to file a registration statement
(the "Registration Statement") with the Securities and Exchange Commission (the
"Commission") registering the Exchange Notes (as defined in the Registration
Rights Agreement) under the Act. Furthermore, the Initial Purchaser and the
affiliates, directors, officers, agents, representatives and employees of the
Initial Purchaser, and each other person, if any, who controls the Initial
Purchaser within the meaning of Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934 will be entitled to the benefits of the letter
agreement, substantially in the form attached hereto as Exhibit B (the "Letter
Agreement"), from ATC to the Initial Purchaser.
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2. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with the Initial Purchaser that:
(a) Neither the Final Memorandum nor any amendment or
supplement thereto as of the date thereof and at all times subsequent
thereto up to the Closing Date (as defined in Section 3 below)
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and
warranties set forth in this Section 2(a) do not apply to statements or
omissions made in reliance upon and in conformity with information
relating to the Initial Purchaser furnished to the Company in writing
by the Initial Purchaser expressly for use in the Preliminary
Memorandum, the Final Memorandum or any amendment or supplement
thereto.
(b) As of the Closing Date, the Company will have the
authorized, issued and outstanding capitalization set forth in the
Final Memorandum; all of the outstanding shares of capital stock of the
Company and each of its significant subsidiaries within the meaning of
Regulation S-X (each, a "Subsidiary" and collectively, 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 Subsidiaries will be
free and clear of all liens, encumbrances, equities and claims or
restrictions on transferability (other than those created pursuant to
the Credit Agreement and those imposed by the Act and the securities or
"Blue Sky" laws of certain jurisdictions) or voting; except as set
forth in the Final Memorandum, there are no, and as of the Closing Date
there will be no, (i) options, warrants or other rights to purchase;
(ii) agreements or other obligations to issue or (iii) other rights to
convert any obligation into, or exchange any securities for, shares of
capital stock of or ownership interests in the Company or any of the
Subsidiaries outstanding. Except for the Company's direct and indirect
interests in the Subsidiaries and in other wholly owned subsidiaries,
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
other than as described in the Final Memorandum.
(c) Each of the Company and the Subsidiaries is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has all requisite corporate or other
power and authority to own its properties and conduct its business as
now conducted and as described in the Final Memorandum; each of the
Company and the Subsidiaries is duly qualified to do business and is in
good standing in all other jurisdictions where the ownership or leasing
of its properties or the conduct of its business re-
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quires such qualification, except where the failure to be so qualified
would not, individually or in the aggregate, be reasonably likely to
have a Material Adverse Effect on the general affairs, management,
business, condition (financial or otherwise), prospects or results of
operations of the Company and the Subsidiaries, taken as a whole (any
such event, a "Material Adverse Effect").
(d) The Company has all requisite corporate power and
authority to execute, deliver and perform each of its obligations under
the Notes, the Exchange Notes and the Private Exchange Notes (each as
defined in the Registration Rights Agreement and the Indenture). The
Notes, when issued, will be in the form contemplated by the Indenture.
The Notes, the Exchange Notes and the Private Exchange Notes have each
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, in the case of the Notes, when
delivered to and paid for by the Initial Purchaser in accordance with
the terms of this Agreement, will have been duly executed, issued and
delivered and will constitute valid and legally binding obligations of
the Company (assuming the due authorization, execution and delivery of
the Indenture by the Trustee and the due authorization and delivery of
the Notes by the Trustee in accordance with the Indenture), 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, fraudulent
conveyance, 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 (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(e) Each of the Guarantors has, and will have at the
Effective Time, all requisite corporate power and authority to execute,
deliver and perform each of its obligations under the Supplemental
Indenture and the Guarantees. The Company shall cause the Guarantees to
be duly and validly authorized by each Guarantor at or prior to the
Effective Time. When executed and delivered by each such Guarantor, the
Supplemental Indenture and the Guarantees will constitute the valid and
legally binding obligations of such Guarantor, entitled to the benefits
of the Indenture, enforceable against each of them in accordance with
its terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
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 (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
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(f) The Company has and each of the the Guarantors has and
will have at the Effective Time all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Indenture. The Indenture meets the requirements for qualification under
the Trust Indenture Act of 1939, as amended (the "TIA"). The Indenture
has been duly and validly authorized by the Company and will be duly
and validly authorized at or prior to the Effective Time by each of the
Guarantors and, when executed and delivered in accordance with its
terms (assuming the due authorization, execution and delivery by the
Trustee), will have been duly executed and delivered and will
constitute a valid and legally binding agreement of the Company and,
after due execution of the Supplemental Indenture, the Guarantors,
enforceable against each of them in accordance with its terms, except
that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, 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
(regardless of whether such enforcement is considered in a proceeding
in equity or at law).
(g) Each of the Company and the Guarantors has all requisite
corporate power and authority to execute, deliver and perform its
obligations under the Registration Rights Agreement. The Registration
Rights Agreement has been duly and validly authorized by the Company
and will be duly and validly authorized at or prior to the Effective
Time by each of the Guarantors and, when executed and delivered by the
Company and each of the Guarantors (assuming due authorization,
execution and delivery by the other parties thereto), will have been
duly executed and delivered and will constitute a valid and legally
binding agreement of each of the Company and the Guarantors,
enforceable against each of them in accordance with its terms, except
that (A) the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, 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
(regardless of whether such enforcement is considered in a proceeding
in equity or at law) and (B) any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and
public policy considerations.
(h) Each of the Company and the Guarantors has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and the Credit Agreement and to
consummate the transactions contemplated hereby and thereby. This
Agreement and the Credit Agreement and the consummation by the Company
and the Guarantors of the transactions contemplated hereby and thereby
have been duly and validly authorized by the Company and will be duly
and
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validly authorized at or prior to the Effective Time by each of the
Guarantors. This Agreement and the Credit Agreement have been duly
executed and delivered by the Company and will be duly executed and
delivered by the Guarantors at or prior to the Effective Time.
(i) No consent, approval, authorization or order of any court
or governmental agency or body or third party is required for the
performance of this Agreement by the Company and, at or after the
Effective Time, the Guarantors or the consummation by them of the other
transactions contemplated hereby, except such (i) as have been obtained
or made, (ii) as would not be reasonably likely to have a Material
Adverse Effect, (iii) as would not materially adversely affect the
validity of this Agreement, the Notes, the Indenture, the Registration
Rights Agreement or the Credit Agreement and (iv) such as may be
required under state securities or "Blue Sky" laws in connection with
the purchase and resale of the Securities by the Initial Purchaser and
except with respect to the registration of the Exchange Notes and
Private Exchange Notes, if applicable, pursuant to the Registration
Rights Agreement and the qualification of the Indenture under the TIA.
Neither the Company nor any of the Subsidiaries is (i) in violation of
its certificate of incorporation or bylaws, (ii) in breach or violation
of any statute, judgment, decree, order, rule or regulation applicable
to any of them or any of its respective properties or assets, except
for any such breach or violation which would not, individually or in
the aggregate, be reasonably likely to have a Material Adverse Effect,
or (iii) in breach of or default under (nor has any event occurred
which, 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 its
respective properties or assets are subject (collectively,
"Contracts"), except for any such breach, default, violation or event
which would not, individually or in the aggregate, be reasonably likely
to have a Material Adverse Effect.
(j) The execution, delivery and performance by the Company
and, at and after the Effective Time, the Guarantors of this Agreement,
the Indenture, the Notes, the Supplemental Indenture, the Guarantees,
the Exchange Notes, the Private Exchange Notes, the Registration Rights
Agreement, the Credit Agreement, the consummation of the transactions
contemplated hereby and thereby, and the fulfillment of the terms
hereof and thereof, will not conflict with or constitute or result in a
breach of or a default under (or an event which with notice or passage
of time or both would constitute a default under) or violation of or
cause an acceleration of any obligation under, or result in the
imposition or creation of (or the obligation to create or impose) a
lien on any property or assets of the Company or any Subsidiary with
respect to
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(i) the terms or provisions of any Contract, except for any such
conflict, breach, violation, default or event which would not,
individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect, (ii) the certificate of incorporation or
bylaws of the Company or any of the Subsidiaries, or (iii) (assuming
compliance with all applicable state securities or "Blue Sky" laws and
assuming the accuracy of the representations and warranties of the
Initial Purchaser in Section 8 hereof and assuming qualification of the
Indenture under the TIA) any statute, judgment, decree, order, rule or
regulation of any court or governmental agency or body applicable to
the Company, the Subsidiaries or any of its respective properties or
assets, except for any such conflict, breach or violation which would
not, individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect.
(k) Each of the Indenture, the Notes, the Exchange Notes, the
Guarantees, the Registration Rights Agreement and the Credit Agreement
conforms in all material respects to the description thereof in the
Final Memorandum.
(l) The consolidated financial statements of the Company and
the related notes thereto included in the Final Memorandum present
fairly in all material respects the financial position, results of
operations and cash flows of the Company at the dates and for the
periods to which they relate and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis,
except as otherwise stated therein, and comply as to form in all
material respects with the applicable accounting requirements of the
Act and the rules and regulations thereunder. The summary and selected
financial data included in the Final Memorandum 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, and
comply as to form in all material respects with the applicable
accounting requirements of the Act and the rules and regulations
thereunder. To the Company's knowledge, each of Deloitte & Touche LLP,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, and Ernst & Young LLP is an independent public
accounting firm as required by the Act and the rules and regulations
thereunder.
(m) (i) The pro forma financial statements (including the
notes thereto) included in the Final Memorandum (A) comply as to form
in all material respects with the applicable requirements of Regulation
S-X promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), (B) have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and (C) have been properly computed on the bases described
therein, and (ii) the assumptions used in the preparation of the pro
forma financial statements included in the Final Memorandum are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions or circumstances referred to therein.
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(n) Except as set forth in the Final Memorandum, there is not
pending or, to the best knowledge of the Company, threatened any
action, suit, proceeding, inquiry or investigation to which the Company
or any Subsidiary is a party, or to which any of its properties or
assets are subject, before or brought by any court, arbitrator or
governmental agency or body, which, if determined adversely to the
Company or any such Subsidiary, would, individually or in the
aggregate, be reasonably likely to have a Material Adverse Effect, or
which seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge the issuance or sale of the Securities to be sold
hereunder or the consummation of the other transactions described in
the Final Memorandum.
(o) Each of the Company and the Subsidiaries owns or
possesses adequate licenses or other rights to use all patents,
trademarks, service marks, trade names, copyrights and know-how
necessary to conduct the businesses operated by it as described in the
Final Memorandum except where the failure to own or possess such of the
foregoing would not be reasonably likely to have a Material Adverse
Effect, and neither the Company nor any of the Subsidiaries has
received any notice of infringement of or conflict with (or knows of no
such infringement of or conflict with) asserted rights of others with
respect to any patents, trademarks, service marks, trade names,
copyrights or know-how which, if such assertion of infringement or
conflict were sustained, would, individually or in the aggregate, be
reasonably likely to have a Material Adverse Effect.
(p) Each of the Company and the Subsidiaries possesses all
licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and has made or will have 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 properties and to carry on its business as
set forth in the Final Memorandum ("Permits"), except where the failure
to obtain such Permits would not, individually or in the aggregate, be
reasonably likely to have a Material Adverse Effect; each of the
Company and the Subsidiaries has fulfilled and performed all of its
obligations with respect to such Permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of
the rights of the holder of any such Permit except where such
revocation, termination or impairment would not be reasonably likely to
have a Material Adverse Effect; and neither the Company nor any
Subsidiary has received any notice of any proceeding relating to
revocation or modification of any such Permit, except as described in
the Final Memorandum and except where such revocation or modification
would not, individually or in the aggregate, be reasonably likely to
have a Material Adverse Effect.
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(q) Since the respective dates as of which information is
given in the Final Memorandum, except as described therein, there has
been no material adverse change or any fact, taken by itself, known to
the Company which could reasonably be expected to result in a material
adverse change, in the general affairs, management, business, condition
(financial or otherwise) or results of operations of the Company and
the Subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, or any loss of, or
damage to, properties (whether or not insured) which could reasonably
be expected to affect materially and adversely the general affairs,
management, business, condition (financial or otherwise) or results of
operations of the Company and the Subsidiaries taken as a whole. Since
the date of the latest balance sheet presented in the Final Memorandum,
except as expressly disclosed in the Final Memorandum, neither the
Company nor any of its Subsidiaries has (i) incurred or undertaken any
liabilities or obligations, direct or contingent, that are material to
the Company and the Subsidiaries taken as a whole other than capital
equipment leases in the ordinary course of business consistent with
past practice, (ii) entered into any material transaction not in the
ordinary course of business and consistent with past practice or (iii)
declared or paid any dividend or made any distribution on any shares of
its capital stock or redeemed, purchased or otherwise acquired or
agreed to redeem, purchase or otherwise acquire any shares of its
capital stock.
(r) Each of the Company and the Subsidiaries 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, be reasonably likely to have a
Material Adverse Effect, and has paid all taxes shown as due thereon;
and other than tax deficiencies which the Company or any of the
Subsidiaries is contesting in good faith and for which the Company or
such Subsidiary has provided adequate reserves, there is no tax
deficiency that has been asserted against the Company or any Subsidiary
that would, individually or in the aggregate, be reasonably likely to
have a Material Adverse Effect.
(s) The statistical and market-related data included in the
Final Memorandum are based on or derived from sources which the Company
believes to be reliable and accurate.
(t) Neither the Company nor any of the Subsidiaries nor any
agent acting on its behalf has taken or will take any action that might
cause this Agreement or the sale of the Securities to violate
Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System, in each case as in effect, or as the same may hereafter
be in effect, on the Closing Date.
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(u) Each of the Company and the Subsidiaries has good title
to all personal property described in the Final Memorandum as being
owned by it, good and valid title to all real property described in the
Final Memorandum as being owned by it and good and valid title to a
leasehold estate in the real and personal property described in the
Final Memorandum as being leased by it free and clear of all liens,
charges, encumbrances or restrictions, except as described in the Final
Memorandum or to the extent the failure to have such title or the
existence of such liens, charges, encumbrances or restrictions would
not, individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect. All leases, contracts and agreements to which
the Company or any Subsidiary is a party or by which the Company or
such Subsidiary is bound are valid and enforceable against the Company
or such Subsidiary, to the knowledge of the Company are valid and
enforceable against the other party or parties thereto and are in full
force and effect with only such exceptions as would not, individually
or in the aggregate, be reasonably likely to have a Material Adverse
Effect.
(v) There are no legal or governmental proceedings involving
or affecting the Company, any of the Subsidiaries or any of their
respective properties or assets which would be required to be described
in a prospectus pursuant to the Act that are not described in the Final
Memorandum, nor are there any material contracts or other documents
which would be required to be described in a prospectus pursuant to the
Act that are not described in the Final Memorandum.
(w) Except as described in the Final Memorandum or as would
not, individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect, (A) each of the Company and the Subsidiaries
is in compliance with and not subject to liability under applicable
Environmental Laws, (B) each of the Company and the Subsidiaries 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,
threatened against the Company or any Subsidiary under any
Environmental Law, (D) 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 Subsidiary, (E) neither the Company nor any Subsidiary
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) no property or facility of the Company or
any Subsidiary is (i) listed or proposed for listing on the National
Priorities List under
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CERCLA or (ii) listed in the Comprehensive Environmental Response,
Compensation, Liability Information System List promulgated pursuant to
CERCLA, or on any comparable list maintained by any state or local
governmental authority.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable 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, groundwater, 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 aboveground storage tanks, and related piping,
and emissions, discharges, releases or threatened releases therefrom.
(x) There is no strike, labor dispute, slowdown or work
stoppage with the employees of the Company or the Subsidiaries which is
pending or, to the knowledge of the Company, threatened, which would be
reasonably likely to have a Material Adverse Effect.
(y) Each of the Company and the Subsidiaries carries
insurance in such amounts and covering such risks as is adequate for
the conduct of its business and the value of its properties.
(z) Except as set forth in the Final Memorandum, neither the
Company nor any Subsidiary has any liability for any prohibited
transaction within the meaning of ss.406 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or funding
deficiency within the meaning of ss.302 of ERISA or any complete or
partial withdrawal liability under ss.4201 of ERISA with respect to any
pension, profit sharing or other plan which is subject to ERISA to
which the Company or any Subsidiary makes or ever has made a
contribution and in which any employee of the Company or any Subsidiary
is or has ever been a participant, which prohibited transaction
liability or withdrawal liability is reasonably likely to have a
Material Adverse Effect. With respect to such plans, each of the
Company and the Subsidiaries is in compliance in all material respects
with all applicable provisions of ERISA.
(aa) Each of the Company and the Subsidiaries (i) makes and
keeps accurate books and records and (ii) maintains internal accounting
controls which 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
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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.
(bb) Neither the Company nor any Subsidiary will be an
"investment company" or "promoter" or "principal underwriter" for an
"investment company," as such terms are defined in the Investment
Company Act of 1940, as amended, and the rules and regulations
thereunder.
(cc) Except as set forth on Exhibit A hereto, no holder of
securities of the Company (other than the Registrable Notes (as defined
in the Registration Rights Agreement)) will be entitled to have such
securities registered under the registration statements required to be
filed by the Company pursuant to the Registration Rights Agreement
other than as expressly permitted thereby.
(dd) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair
saleable value of the assets of the Company and the Subsidiaries, on a
consolidated basis, will exceed the sum of its consolidated stated
liabilities and identified contingent liabilities (after giving effect,
in the case of each of the Guarantors, to the limitations contained in
each Guarantee); neither the Company nor any of the Subsidiaries is, or
will be after giving effect to the execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby, (a) left with unreasonably small capital with which to carry on
its business as it is proposed to be conducted, (b) unable to pay its
debts (contingent or otherwise) as they mature or (c) otherwise
insolvent.
(ee) Neither the Company nor any of the Subsidiaries nor any
of its respective Affiliates (as defined in Rule 501(b) of Regulation D
under the Act) has directly, or through any agent, (i) sold, offered
for sale, solicited offers to buy or otherwise negotiated in respect of
any "security" (as defined in the Act) which is or could be integrated
with the sale of the Securities in a manner that would require the
registration under the Act of the Securities or (ii) engaged in any
form of general solicitation or general advertising (as those terms are
used in Regulation D under the Act) in connection with the offering of
the Securities or in any manner involving a public offering within the
meaning of Section 4(2) of the Act.
(ff) Assuming the accuracy of the representations and
warranties of the Initial Purchaser in Section 8 hereof, it is not
necessary in connection with the offer, sale and delivery of the
Securities to the Initial Purchaser in the manner contemplated by this
-13-
Agreement to register any of the Securities under the Act or to qualify
the Indenture under the TIA.
(gg) No securities of the Company are of the same class
(within the meaning of Rule 144A under the Act) as the Securities and
listed on a national securities exchange registered under Section 6 of
the Exchange Act, or quoted in a U.S. automated inter-dealer quotation
system.
(hh) Neither the Company nor any Subsidiary has taken, nor
will take, directly or indirectly, any action designed to, or that
might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Securities.
(ii) Neither the Company nor any of the Subsidiaries, nor any
of their respective Affiliates (as defined in Rule 501(b) of Regulation
D under the Act) or any person acting on any of their behalf (other
than the Initial Purchaser, as to which the Company makes no
representation) has engaged in any directed selling efforts (as that
term is defined in Regulation S under the Act ("Regulation S")) with
respect to the Securities; the Company and its respective Affiliates
and any person acting on any of their behalf (other than the Initial
Purchaser, as to which the Company makes no representation) have
complied with the offering restrictions requirement of Regulation S.
(jj) As of the date specified, ATC had the authorized, issued
and outstanding capital stock set forth under "Capitalization" in the
Final Memorandum; all of the outstanding shares of capital stock of ATC
and each of its significant subsidiaries within the meaning of
Regulation S-X (each, an "ATC Subsidiary" and collectively, the "ATC
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 ATC Subsidiaries will
be free and clear of all liens, encumbrances, equities and claims or
restrictions on transferability) or voting; except as set forth in the
Final Memorandum, there are no (i) options, warrants or other rights to
purchase; (ii) agreements or other obligations to issue or (iii) other
rights to convert any obligation into, or exchange any securities for,
shares of capital stock of or ownership interests in ATC or any of the
ATC Subsidiaries outstanding. Except for ATC's direct and indirect
interests in the ATC Subsidiaries, in other wholly owned subsidiaries
and in Environmental Warranty, Inc. ("EWI"), ATC 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 other than as described in
the Final Memorandum.
-14-
(kk) Each of ATC and the ATC Subsidiaries is duly organized,
validly existing and in good standing under the laws of its
jurisdiction of organization and has all requisite corporate or other
power and authority to own its properties and conduct its business as
now conducted and as described in the Final Memorandum; each of ATC and
the ATC Subsidiaries is duly qualified to do business and is 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, be reasonably likely to have a
material adverse effect on the general affairs, management, business,
condition (financial or otherwise), prospects or results of operations
of ATC and the ATC Subsidiaries, taken as a whole (any such event, an
"ATC Material Adverse Effect").
(ll) ATC had all requisite corporate power and authority to
execute, deliver and perform each of its obligations under the Merger
Agreement. The Merger Agreement has been duly and validly authorized by
ATC and executed and delivered by it, and constitutes a valid and
legally binding obligation of ATC (assuming the due authorization,
execution and delivery thereof by the other parties thereto),
enforceable against ATC in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, 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 (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
(mm) At the Effective Time, the Notes, the Exchange Notes, if
issued prior to the Effective Time, the Private Exchange Notes, if
issued prior to the Effective Time, the Indenture, the Registration
Rights Agreement, the Credit Agreement and this Agreement will
constitute the valid and legally binding obligations of ATC,
enforceable against it in accordance with their respective terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, 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
(regardless of whether such enforcement is considered in a proceeding
in equity or at law). At the Effective Time, the Guarantees will have
been duly and validly authorized by each Guarantor, and when executed
and delivered by such Guarantor, will constitute the valid and legally
binding obligations of each such Guarantor, entitled to the benefits of
the Indenture, enforceable against each of them in accordance with its
terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect
-15-
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 (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(nn) No consent, approval, authorization or order of any
court or governmental agency or body or third party is required for the
performance of the Merger Agreement by ATC or the consummation by it of
the transactions contemplated thereby, except such (i) as have been
obtained or made, (ii) as would not be reasonably likely to have an ATC
Material Adverse Effect, (iii) as would not materially adversely affect
the validity of this Agreement, the Notes, the Indenture, the
Registration Rights Agreement or the Credit Agreement upon the
effectiveness of the Merger, (iv) except with respect to the
registration of the Exchange Notes and Private Exchange Notes, if
applicable, pursuant to the Registration Rights Agreement and the
qualification of the Indenture under the TIA and (v) except for the
requisite vote of ATC stockholders and the requisite consent by
Acquisition Corp. to approve the Merger. Neither ATC nor any of the ATC
Subsidiaries is (i) in violation of its certificate of incorporation or
bylaws, (ii) in breach or violation of any statute, judgment, decree,
order, rule or regulation applicable to any of them or any of its
respective properties or assets, except for any such breach or
violation which would not, individually or in the aggregate, be
reasonably likely to have an ATC Material Adverse Effect, or (iii) in
breach of or default under (nor has any event occurred which, 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 its
respective properties or assets are subject (collectively, "ATC
Contracts"), except for any such breach, default, violation or event
which would not, individually or in the aggregate, be reasonably likely
to have an ATC Material Adverse Effect.
(oo) The execution, delivery and performance by ATC of the
Merger Agreement and the consummation of the transactions contemplated
thereby, and the fulfillment of the terms thereof, will not conflict
with or constitute or result in a breach of or a default under (or an
event which with notice or passage of time or both would constitute a
default under) or violation of or cause an acceleration of any
obligation under, or result in the imposition or creation of (or the
obligation to create or impose) a lien on any property or assets of ATC
or any ATC Subsidiary with respect to (i) the terms or provisions of
the ATC Contracts, except for any such conflict, breach, violation,
default or event which would not, individually or in the aggregate, be
reasonably likely to have an ATC Material Adverse Effect, (ii) the
certificate of incorporation or bylaws of ATC or any of the ATC
Subsidiaries, or (iii) any statute, judgment, decree,
-16-
order, rule or regulation of any court or governmental agency or body
applicable to ATC, the ATC Subsidiaries or any of their respective
properties or assets, except for any such conflict, breach or violation
which would not, individually or in the aggregate, be reasonably likely
to have an ATC Material Adverse Effect.
(pp) The consolidated financial statements of ATC and the
related notes thereto included in the Final Memorandum present fairly
in all material respects the financial position, results of operations
and cash flows of ATC at the dates and for the periods to which they
relate and have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis, except as
otherwise stated therein, and comply as to form in all material
respects with the applicable accounting requirements of the Act and the
rules and regulations thereunder. The summary and selected financial
data included in the Final Memorandum 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, and comply as to
form in all material respects with the applicable accounting
requirements of the Act and the rules and regulations thereunder. The
Company believes that Deloitte & Touche, LLP is an independent public
accounting firm as required by the Act and the rules and regulations
thereunder.
(qq) Except as set forth in the Final Memorandum, there is
not pending or, to the best knowledge of the Company, threatened any
action, suit, proceeding, inquiry or investigation to which ATC or any
of the ATC Subsidiaries is a party, or to which any of its properties
or assets are subject, before or brought by any court, arbitrator or
governmental agency or body, which, if determined adversely to ATC or
any such ATC Subsidiary, would, individually or in the aggregate, be
reasonably likely to have an ATC Material Adverse Effect, or which
seeks to restrain, enjoin, prevent the consummation of or otherwise
challenge the Merger or the consummation of the other transactions
described in the Final Memorandum.
(rr) Each of ATC and the ATC Subsidiaries owns or possesses
adequate licenses or other rights to use all patents, trademarks,
service marks, trade names, copyrights and know-how necessary to
conduct the businesses operated by it as described in the Final
Memorandum except where the failure to own or possess such of the
foregoing would not be reasonably likely to have an ATC Material
Adverse Effect, and neither ATC nor any of the ATC Subsidiaries has
received any notice of infringement of or conflict with (or knows of no
such infringement of or conflict with) asserted rights of others with
respect to any patents, trademarks, service marks, trade names,
copyrights or know-how which, if such assertion of infringement or
conflict were sustained, would, individually or in the aggregate, be
reasonably likely to have an ATC Material Adverse Effect.
-17-
(ss) Each of ATC and the ATC Subsidiaries possesses all
licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and has made or will have 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 properties and to carry on its business as
set forth in the Final Memorandum ("ATC Permits"), except where the
failure to obtain such ATC Permits would not, individually or in the
aggregate, be reasonably likely to have an ATC Material Adverse Effect;
each of ATC and the ATC Subsidiaries has fulfilled and performed all of
its obligations with respect to such Permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of
the rights of the holder of any such ATC Permit except where such
revocation, termination or impairment would not be reasonably likely to
have an ATC Material Adverse Effect; and neither ATC nor any ATC
Subsidiary has received any notice of any proceeding relating to
revocation or modification of any such ATC Permit, except as described
in the Final Memorandum and except where such revocation or
modification would not, individually or in the aggregate, be reasonably
likely to have an ATC Material Adverse Effect.
(tt) Since the respective dates as of which information is
given in the Final Memorandum, except as described therein, there has
been no material adverse change or any fact, taken by itself, known to
the Company which could reasonably be expected to result in a material
adverse change, in the general affairs, management, business, condition
(financial or otherwise) or results of operations of ATC and the ATC
Subsidiaries taken as a whole, whether or not arising from transactions
in the ordinary course of business, or any loss of, or damage to,
properties (whether or not insured) which could reasonably be expected
to affect materially and adversely the general affairs, management,
business, condition (financial or otherwise) or results of operations
of ATC and the ATC Subsidiaries taken as a whole. Since the date of the
latest balance sheet presented in the Final Memorandum, except as
expressly disclosed in the Final Memorandum, neither ATC nor any of the
ATC Subsidiaries has (i) incurred or undertaken any liabilities or
obligations, direct or contingent, that are material to the Company and
the ATC Subsidiaries taken as a whole other than capital equipment
leases in the ordinary course of business consistent with past
practice, (ii) entered into any material transaction not in the
ordinary course of business and consistent with past practice or (iii)
declared or paid any dividend or made any distribution on any shares of
its capital stock or redeemed, purchased or otherwise acquired or
agreed to redeem, purchase or otherwise acquire any shares of its
capital stock.
-18-
(uu) Each of ATC and the ATC Subsidiaries 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, be reasonably likely to have an ATC
Material Adverse Effect, and has paid all taxes shown as due thereon;
and other than tax deficiencies which ATC or any of the ATC
Subsidiaries is contesting in good faith and for which the Company or
such Subsidiary has provided adequate reserves, there is no tax
deficiency that has been asserted against ATC or any ATC Subsidiary
that would have, individually or in the aggregate, an ATC Material
Adverse Effect.
(vv) Each of ATC and the ATC Subsidiaries has good title to
all personal property described in the Final Memorandum as being owned
by it, good and valid title to all real property described in the Final
Memorandum as being owned by it and good and valid title to a leasehold
estate in the real and personal property described in the Final
Memorandum as being leased by it free and clear of all liens, charges,
encumbrances or restrictions, except as described in the Final
Memorandum or to the extent the failure to have such title or the
existence of such liens, charges, encumbrances or restrictions would
not, individually or in the aggregate, be reasonably likely to have an
ATC Material Adverse Effect. All leases, contracts and agreements to
which ATC or any ATC Subsidiary is a party or by which ATC or such ATC
Subsidiary is bound are valid and enforceable against ATC or such ATC
Subsidiary, to the knowledge of the Company are valid and enforceable
against the other party or parties thereto and are in full force and
effect with only such exceptions as would not, individually or in the
aggregate, be reasonably likely to have an ATC Material Adverse Effect.
(ww) There are no legal or governmental proceedings involving
or affecting ATC, any of the ATC Subsidiaries or any of its respective
properties or assets which would be required to be described in a
prospectus pursuant to the Act that are not described in the Final
Memorandum, nor are there any material contracts or other documents
which would be required to be described in a prospectus pursuant to the
Act that are not described in the Final Memorandum.
(xx) Except as described in the Final Memorandum or as would
not, individually or in the aggregate, be reasonably likely to have an
ATC Material Adverse Effect, (A) each of ATC and the ATC Subsidiaries
is in compliance with and not subject to liability under applicable
Environmental Laws, (B) each of ATC and the ATC Subsidiaries 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
-19-
of violation, investigation, proceeding, notice or demand letter or
request for information pending or, to the knowledge of the Company,
threatened against ATC or any ATC Subsidiary under any Environmental
Law, (D) 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 ATC or any ATC
Subsidiary, (E) neither ATC nor any ATC Subsidiary 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)
no property or facility of ATC or any ATC Subsidiary is (i) listed or
proposed for listing on the National Priorities List under CERCLA or
(ii) listed in the Comprehensive Environmental Response, Compensation,
Liability Information System List promulgated pursuant to CERCLA, or on
any comparable list maintained by any state or local governmental
authority.
(yy) There is no strike, labor dispute, slowdown or work
stoppage with the employees of ATC or the ATC Subsidiaries which is
pending or, to the knowledge of the Company, threatened, which would be
reasonably likely to have an ATC Material Adverse Effect.
(zz) Each of ATC and the ATC Subsidiaries carries insurance
in such amounts and covering such risks as is adequate for the conduct
of its business and the value of its properties.
(aaa) Except as set forth in the Final Memorandum, neither
ATC nor any ATC Subsidiary has any liability for any prohibited
transaction within the meaning of ss.406 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or funding
deficiency within the meaning of ss.302 of ERISA or any complete or
partial withdrawal liability under ss.4201 of ERISA with respect to any
pension, profit sharing or other plan which is subject to ERISA to
which ATC or any ATC Subsidiary makes or ever has made a contribution
and in which any employee of ATC or any ATC Subsidiary is or has ever
been a participant, which prohibited transaction liability or
withdrawal liability is reasonably likely to have a Material Adverse
Effect. With respect to such plans, each of ATC and the ATC
Subsidiaries is in compliance in all material respects with all
applicable provisions of ERISA.
(bbb) Each of ATC and the ATC Subsidiaries (i) makes and
keeps accurate books and records and (ii) maintains internal accounting
controls which 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 re-
-20-
ported accountability for its assets is compared with existing assets
at reasonable intervals.
(ccc) Neither ATC nor any ATC Subsidiary is an "investment
company" or "promoter" or "principal underwriter" for an "investment
company," as such terms are defined in the Investment Company Act of
1940, as amended, and the rules and regulations thereunder.
(ddd) Except as set forth on Exhibit A hereto, no holder of
securities of ATC (other than the Registrable Notes (as defined in the
Registration Rights Agreement and the Indenture)) will be entitled to
have such securities registered under the registration statements
required to be filed by ATC pursuant to the Registration Rights
Agreement and the Indenture than as expressly permitted thereby.
(eee) Immediately after the consummation of the transactions
contemplated by the Merger Agreement, the fair value and present fair
saleable value of the assets of ATC and its subsidiaries, on a
consolidated basis, will exceed the sum of its consolidated stated
liabilities and identified contingent liabilities (after giving effect,
in the case of each of the guarantors, to the limitations contained in
each Guarantee); neither ATC nor any of its subsidiaries is, or will be
after giving effect to the execution, delivery and performance of the
Merger Agreement and the consummation of the transactions contemplated
hereby, (a) left with unreasonably small capital with which to carry on
its business as it is proposed to be conducted, (b) unable to pay its
debts (contingent or otherwise) as they mature or (c) otherwise
insolvent.
(fff) Each of the foregoing representations and warranties,
as far as each relates to ATC and the ATC Subsidiaries, is made by
Acquisition Corp. to the best of its knowledge; upon the Effective Time
and the assumption by ATC of the obligations of the Company hereunder,
such representations and warranties shall be deemed to be have been
made by ATC without such knowledge limitation.
Each of the foregoing representations and warranties, insofar
as each relates to information concerning ATC or any subsidiary of ATC, is made
by Acquisition Corp. to the best of its knowledge; upon the Effective Time and
the assumption by ATC of the obligations of the Company hereunder, such
representations and warranties shall be deemed to be have been made by ATC
without such knowledge limitation.
Any certificate signed by any officer of the Company or any
Subsidiary and delivered to the Initial Purchaser or to counsel for the Initial
Purchaser shall be deemed a joint and several representation and warranty by the
Company and each of the Subsidiaries to each Initial Purchaser as to the matters
covered thereby.
-21-
3. Purchase, Sale and Delivery of the Notes. On the basis of
the representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Initial Purchaser, and the Initial Purchaser agrees to
purchase, the Notes, at 97% of their principal amount.
One or more certificates in definitive form for the Notes that
the Initial Purchaser has agreed to purchase hereunder, and in such denomination
or denominations and registered in such name or names as the Initial Purchaser
requests upon notice to the Company at least 48 hours prior to the Closing Date,
shall be delivered by or on behalf of the Company to the Initial Purchaser,
against payment by or on behalf of the Initial Purchaser of the purchase price
therefor by wire transfer of immediately available funds payable to such account
or account as the Company shall specify prior to the Closing Date, or by such
means as the parties hereto shall agree prior to the Closing Date. Such delivery
of and payment for the Securities shall be made at the offices of ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 A.M., New York time, on
January 29, 1998, or at such other place, time or date as the Initial Purchaser
and the Company may agree upon, such time and date of delivery against payment
being herein referred to as the "Closing Date." The Company will make such
certificate or certificates for the Securities available for checking and
packaging by the Initial Purchaser at the offices of the Initial Purchaser in
New York, New York or such other place as the Initial Purchaser may designate,
at least 24 hours prior to the Closing Date.
4. Offering by the Initial Purchaser. The Initial Purchaser
proposes to make an offering of the Securities at the price and upon the terms
set forth in the Final Memorandum as soon as practicable after this Agreement is
entered into and as in the sole judgment of the Initial Purchaser is advisable.
5. Covenants of the Company. The Company and, at and after
the Effective Time, the Guarantors covenant and agree with the Initial Purchaser
that:
(a) The Company will not amend or supplement the Final
Memorandum or any amendment or supplement thereto of which the Initial
Purchaser and counsel to the Initial Purchaser shall not previously
have been advised and furnished a copy for a reasonable period of time
prior to the proposed amendment or supplement and as to which the
Initial Purchaser shall not have given its consent, which consent shall
not be unreasonably withheld. The Company will promptly, upon the
reasonable request of the Initial Purchaser or counsel for the Initial
Purchaser, make any amendments or supplements to the Preliminary
Memorandum or the Final Memorandum that may be reasonably necessary or
advisable in connection with the initial resale of the Securities by
the Initial Purchaser.
-22-
(b) The Company will use reasonable efforts to consummate the
Merger as soon as possible, taking into account all relevant factors
including successful operation of the Company's business.
(c) The Company and, at and after the Effective Time, the
Guarantors will cooperate with the Initial Purchaser in arranging for
the qualification of the Securities for offering and sale under the
securities or "Blue Sky" laws of such jurisdictions as the Initial
Purchaser may designate and will continue such qualification in effect
for as long as may be necessary to complete the resale of the
Securities by the Initial Purchaser; provided, however, that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to execute a general consent to service of
process in any jurisdiction or subject the Company to any tax in any
such jurisdiction where it is not then so subject.
(d) If, at any time prior to the completion of the
distribution by the Initial Purchaser of the Notes or the Private
Exchange Notes, any event occurs or information becomes known as a
result of which the Final Memorandum as then amended or supplemented
would include an untrue statement of a material fact, or omit to state
a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if
for any other reason it is necessary at any time to amend or supplement
the Final Memorandum in order to comply with applicable law, the
Company will promptly notify the Initial Purchaser thereof and will
prepare, at the Company's expense, an amendment to the Final Memorandum
that corrects such statement or omission or effects such compliance.
(e) The Company will, without charge, provide to the Initial
Purchaser and to counsel for the Initial Purchaser as many copies of
the Preliminary Memorandum and the Final Memorandum or any amendment or
supplement thereto as the Initial Purchaser may reasonably request.
(f) The Company will apply the net proceeds from the sale of
the Securities substantially as set forth under "Use of Proceeds" in
the Final Memorandum.
(g) The Company will ensure that the capital contribution by
Holdings of the full amount of the proceeds of the rollover of
management and employee equity in ATC into equity of Holdings, as
described in the Final Memorandum, occurs on or prior to the Effective
Time.
(h) For so long as any Securities remain outstanding, the
Company will furnish to the Initial Purchaser copies of all reports and
other communications (financial or otherwise) furnished by the Company
to the Trustee or the holders of the
-23-
Securities and, as soon as available, copies of any reports or
financial statements furnished to or filed by the Company with the
Commission or any national securities exchange on which any class of
securities of the Company may be listed.
(i) Prior to the Closing Date, the Company will furnish to
the Initial Purchaser, as soon as they have been prepared by or are
available to the Company, a copy of any unaudited interim consolidated
financial statements of the Company or ATC for any period subsequent to
the period covered by its most recent financial statements appearing in
the Final Memorandum.
(j) None of the Company nor any of its respective Affiliates
will sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any "security" (as defined in the Act) that
could be integrated with the sale of the Securities in a manner that
would require the registration under the Act of the Securities.
(k) The Company will not, nor will the Company permit any of
the Subsidiaries to, engage in any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
Act) in connection with the offering of the Securities or in any manner
involving a public offering within the meaning of Section 4(2) of the
Act.
(l) For so long as any of the Securities remain outstanding,
the Company will make available, upon request, to any holder of such
Securities and any prospective purchaser thereof the information
specified in Rule 144A(d)(4) under the Act, unless the Company is then
subject to Section 13 or 15(d) of the Exchange Act.
(m) Each of the Company and, at and after the Effective Time,
the Guarantors will use its commercially reasonable best efforts to (i)
permit the Securities to be designated PORTAL securities in accordance
with the rules and regulations adopted by the National Association of
Securities Dealers, Inc. (the "NASD") relating to trading in the
Private Offerings, Resales and Trading through Automated Linkages
market (the "PORTAL Market") and (ii) permit the Securities to be
eligible for clearance and settlement through The Depository Trust
Company.
(n) In connection with any Notes offered and sold in an
offshore transaction (as defined in Regulation S), the Company will not
register any transfer of such Notes not made in accordance with the
provisions of Regulation S and will not, except in accordance with the
provisions of Regulation S, if applicable, issue any such Notes in the
form of definitive securities.
-24-
6. Expenses. The Company agrees to pay all costs and expenses
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 11 hereof, including all costs and expenses
incident to: (i) the printing, word processing or other production of documents
with respect to such transactions, including any costs of printing the
Preliminary Memorandum and the Final Memorandum and any amendments or
supplements thereto, and any "Blue Sky" memoranda, (ii) all arrangements
relating to the delivery to the Initial Purchaser of copies of the foregoing
documents, (iii) the fees and disbursements of the counsel, the accountants and
any other experts or advisors retained by the Company, (iv) the preparation
(including printing), issuance and delivery to the Initial Purchaser of any
certificates evidencing the Securities, (v) the qualification of the Securities
under state securities and "Blue Sky" laws, including filing fees and reasonable
fees and disbursements of counsel up to $10,000 for the Initial Purchaser
relating thereto, (vi) the expenses of the Company in connection with any
meetings with prospective investors in the Securities, (vii) the fees and
expenses of the Trustee, including fees and expenses of its counsel, and (viii)
all expenses and listing fees incurred in connection with the application for
quotation of the Securities on the PORTAL Market and (ix) any fees charged by
investment rating agencies for the rating of the Securities. If the issuance and
sale of the Securities provided for herein is not consummated because any
condition to the obligation of the Initial Purchaser set forth in Section 7
hereof is not satisfied, because this Agreement is terminated pursuant to
Section 11 hereof or because of any failure, refusal or inability on the part of
the Company or the apparent inability of any Guarantor to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder (other than by reason of a default by the Initial Purchaser of its
obligations hereunder after all conditions hereunder have been satisfied in
accordance herewith), the Company will promptly reimburse the Initial Purchaser
upon demand for all reasonable out-of-pocket expenses (including reasonable
fees, disbursements and charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Initial Purchaser) that shall have been incurred by the Initial Purchaser in
connection with the proposed purchase and sale of the Securities.
7. Conditions of the Initial Purchaser's Obligations. The
obligation of the Initial Purchaser to purchase and pay for the Securities
shall, in its sole discretion, be subject to the satisfaction or waiver of the
following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser shall have
received the opinion, dated as of the Closing Date and addressed to the
Initial Purchaser, of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company,
in form and substance reasonably satisfactory to counsel for the
Initial Purchaser, to the effect that:
(i) The Company is duly incorporated; each of the Company,
ATC and ATC's subsidiaries is validly existing and in good
standing under the laws of its jurisdiction of incorporation
and has all requisite corporate power and
-25-
authority to own, lease and operate its properties and to
conduct its business as described in the Final Memorandum.
Each of the Company, ATC and ATC's subsidiaries is duly
qualified as a foreign corporation and in good standing in
each jurisdiction set forth on a schedule attached to such
opinion.
(ii) The Company has the authorized capital stock as set
forth under "Capitalization" in the Final Memorandum.
(iii) To the knowledge of such counsel, except as set forth
in the Final Memorandum, (A) no options, warrants or other
rights to purchase from the Company shares of capital stock or
ownership interests in the Company are outstanding, (B) no
agreements or other obligations of the Company to issue, or
other rights to cause the Company to convert, any obligation
into, or exchange any securities for, shares of capital stock
or ownership interests in the Company are outstanding and (C)
no holder of securities of the Company (other than the
Registrable Notes) is entitled to have such securities
registered under a registration statement filed by the Company
pursuant to the Registration Rights Agreement and the
Indenture (other than as set forth on Exhibit A hereto).
(iv) The Indenture is in sufficient form for qualification
under the TIA; the Indenture has been duly and validly
authorized, executed and delivered by the Company, and
(assuming the due authorization, execution and delivery
thereof by the Trustee) constitutes the 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, fraudulent conveyance, 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 (regardless of whether such
enforcement is considered in a proceeding in equity or at
law).
(v) The Notes are in the form of Exhibit A to the Indenture
with legends in the forms of Exhibits C, D or E to the
Indenture. The Notes have each been duly and validly
authorized, executed and delivered by the Company and, when
paid for by the Initial Purchaser in accordance with the terms
of this Agreement (assuming the due authorization, execution
and delivery of the Indenture by the Trustee and due
authentication and delivery of the Notes by the Trustee in
accordance with the Indenture), will constitute the valid and
legally binding obligations of the Company, entitled to the
benefits of the Indenture, and enforceable against the Company
in accordance with their terms, except
-26-
that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, 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 (regardless of whether such
enforcement is considered in a proceeding in equity or at
law).
(vi) The Exchange Notes and the Private Exchange Notes and
the Guarantees to be endorsed on them have been duly and
validly authorized by the Company, and when the Exchange Notes
and the Private Exchange Notes have been duly executed and
delivered by the Company and the Guarantees have been duly
authorized, executed and delivered by the Guarantors, each in
accordance with the terms of the Registration Rights Agreement
and the Indenture (assuming the due authorization, execution
and delivery of the Indenture by the Trustee and due
authentication and delivery of the Exchange Notes and the
Private Exchange Notes by the Trustee in accordance with the
Indenture and also assuming the due authorization, execution
and delivery of the Guarantees and the Supplemental Indenture
by the Guarantors), will constitute the valid and legally
binding obligations of the Company and the Guarantors,
respectively, entitled to the benefits of the Indenture, and
enforceable against the Company and the Guarantors,
respectively, in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, 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 (regardless of whether such
enforcement is considered in a proceeding in equity or at
law).
(vii) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations
under the Merger Agreement (to the extent a party thereto),
the Registration Rights Agreement and the Credit Agreement;
the Merger Agreement (to the extent a party thereto), the
Registration Rights Agreement and the Credit Agreement have
each been duly and validly authorized, executed and delivered
by the Company, and (assuming due authorization, execution and
delivery thereof by the Initial Purchaser in the case of the
Registration Rights Agreement and the banks party thereto in
the case of the Credit Agreement) constitutes the valid and
legally binding agreement of the Company enforceable against
the Company in accordance with its terms, except that (A) the
enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium
or other
-27-
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 (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and (B) any
rights to indemnity or contribution thereunder may be limited
by federal and state securities laws and public policy
considerations.
(viii) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations
under this Agreement and the Merger Agreement and to
consummate the transactions contemplated hereby and thereby;
this Agreement and the Merger Agreement and the consummation
by the Company and the Guarantors of the transactions
contemplated hereby and thereby have been duly and validly
authorized by the Company. This Agreement and the Merger
Agreement have been duly executed and delivered by the
Company.
(ix) The Indenture, the Notes, the Exchange Notes, the
Guarantees, the Registration Rights Agreement, the Merger
Agreement and the Credit Agreement conform as to legal matters
in all material respects to the descriptions thereof contained
in the Final Memorandum.
(x) To the knowledge of such counsel, except as described in
the Final Memorandum, no legal or governmental proceedings are
pending or threatened to which the Company or any Guarantor is
a party or to which the property or assets of the Company or
any Guarantor is subject which would be required under the Act
to be described in a registration statement or in a
prospectus, or which seek 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
Merger or the consummation of the other transactions described
in the Final Memorandum.
(xi) To the knowledge of such counsel, the Company is not in
violation of its certificate of incorporation or bylaws,
except for any such breach, default, violation or event which
would not, individually or in the aggregate, be reasonably
likely to have a Material Adverse Effect.
(xii) Except as set forth in the Final Memorandum, the
execution, delivery and performance of this Agreement, the
Indenture, the Registration Rights Agreement, the Merger
Agreement and the Credit Agreement and the consummation of the
Tender Offer, the Merger, the issuance and sale of the Notes
to the Initial Purchaser, registration of the Notes under the
Act, registra-
-28-
tion of the Exchange Notes and Private Exchange Notes under
the Act and borrowings under the Credit Agreement (expressing
no opinion as to the compliance or non-compliance, or the
effect of non-compliance, with any financial tests, ratios or
covenants) will not constitute or result in a breach or a
default under (or an event which with notice or passage of
time or both would constitute a default under) or violation of
or cause an acceleration of any obligation under or result in
the imposition or creation of (or the obligation to create or
impose) a lien on any property or assets of the Company, ATC
or any Guarantor with respect to (i) the terms or provisions
of any of the terms or provisions of any contract described in
the Final Memorandum (such contracts, the "Material Contracts"
(expressing no opinion as to the compliance or non-compliance,
or the effect of non-compliance, with any financial tests,
ratios or covenants)), except for any such conflict, breach,
violation, default or event which would not, individually or
in the aggregate, be reasonably likely to have a Material
Adverse Effect and except for requirements to prepay the 8.18%
Senior Secured Notes and Existing Credit Facility in the
manner described in the Final Memorandum upon consummation of
the Merger, (ii) the certificate of incorporation or bylaws of
the Company or (iii) (assuming compliance with all applicable
state securities or "Blue Sky" laws and assuming the accuracy
of the representations and warranties of the Initial Purchaser
in Section 8 hereof, the accuracy of the representations and
warranties of the Company herein, the performance by the
Company and the Initial Purchaser of their agreements herein
and compliance with federal securities laws in connection with
obligations under the Registration Rights Agreement) any
statute, judgment, decree, order, rule or regulation known to
such counsel to be applicable to the Company, ATC or any
Guarantor and to transactions of the type contemplated by the
Final Memorandum, except for any such conflict, breach or
violation which would not, individually or in the aggregate,
be reasonably likely to have a Material Adverse Effect.
(xiii) Assuming the truthfulness and accuracy of the
representations and warranties of the Company and the Initial
Purchaser and assuming compliance by the Company and the
Initial Purchaser with their agreements herein, to the
knowledge of such counsel, no consent, approval, authorization
or order of any governmental authority is required for the
issuance and sale by the Company of the Notes to the Initial
Purchaser or the Merger or the Holdings Equity Contribution or
the Preferred Stock Offering or the rollover of management and
employee equity in ATC into equity of Holdings, except (i) in
connection with the registration under the Act of the Notes,
and the Private Exchange Notes, if applicable, pursuant to the
Registration Rights Agreement, (ii) the
-29-
qualification of the Indenture under the TIA in connection
with the issuance of the Notes, (iii) such consents,
approvals, authorizations, orders, registrations, filings,
qualifications, licenses and permits (x) as have been obtained
and made, (y) as may be required under state securities or
blue sky laws, as to which such counsel need express no
opinion, or (x) as would not, if not obtained, be reasonably
likely to have a Material Adverse Effect, or (iv) the approval
of the Merger by the shareholders of ATC and Acquisition Corp.
(xiv) None of the Company or the Guarantors is, or
immediately after the sale of the Notes to be sold hereunder
and the application of the proceeds from such sale (as
described in the Final Memorandum under the caption "Use of
Proceeds") will be, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(xv) No registration under the Act of the Notes is required
in connection with the sale of the Notes to the Initial
Purchaser as contemplated by this Agreement and the Final
Memorandum or in connection with the initial resale of the
Notes by the Initial Purchaser in accordance with Section 8 of
this Agreement, and prior to the commencement of the Exchange
Offer (as defined in the Registration Rights Agreement) or the
effectiveness of the Shelf Registration Statement (as defined
in the Registration Rights Agreement), the Indenture is not
required to be qualified under the TIA, in each case assuming
(i) that the purchasers who buy such Notes in the initial
resale thereof are QIBs, (ii) the accuracy of the Initial
Purchaser's representations in Section 8 and those of the
Company contained in this Agreement regarding the absence of a
general solicitation in connection with the sale of such Notes
to the Initial Purchaser and the initial resale thereof, and
(iii) the due performance by the Initial Purchaser of the
agreements set forth in Section 8 hereof and the offering and
transfer procedures set forth in the Final Memorandum.
(xvi) Neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance,
execution or delivery of the Notes will violate Regulation G,
T, U or X of the Board of Governors of the Federal Reserve
System.
(xvii) To the knowledge of such counsel, except as set forth
in the Final Memorandum, upon the effectiveness of the Merger,
no holder of securities of ATC or any ATC Subsidiary (other
than the Registrable Notes) is entitled to have such
securities registered under a registration statement filed by
ATC pursuant to the Registration Rights Agreement.
-30-
(xviii) The Merger Agreement and Letter Agreement have been
duly and validly authorized, executed and delivered by ATC,
and (assuming the due authorization, execution and delivery
thereof by the other parties thereto) constitutes the valid
and legally binding agreement of ATC, enforceable against it
in accordance with its terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, 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 (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xix) To the knowledge of such counsel, except as described
in the Final Memorandum, no legal or governmental proceedings
are pending or threatened to which ATC or any ATC Subsidiary
is a party or to which the property or assets of ATC or any
ATC Subsidiary is subject which would be required under the
Act to be described in a registration statement or in a
prospectus or which seek 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
Merger or the consummation of the other transactions described
in the Final Memorandum.
(xx) Except as set forth in the Final Memorandum, the
execution, delivery and performance of the Merger Agreement
and the Letter Agreement and the consummation of the
transactions contemplated thereby will not constitute or
result in a breach or a default under (or an event which with
notice or passage of time or both would constitute a default
under) or violation of or cause an acceleration of any
obligation under or result in the imposition or creation of
(or the obligation to create or impose) a lien on any property
or assets of ATC or any ATC Subsidiary with respect to (i) the
terms or provisions of any contract described in the Final
Memorandum (such contracts, the "ATC Material Contracts"
(expressing no opinion as to the compliance or non-compliance,
or the effect of non-compliance, with any financial tests,
ratios or covenants)), except for any such conflict, breach,
violation, default or event which would not, individually or
in the aggregate, be reasonably likely to have an ATC Material
Adverse Effect, (ii) the certificate of incorporation or
bylaws of ATC or any ATC Subsidiary, or (iii) (assuming
compliance with all applicable state securities or "Blue Sky"
laws and assuming the accuracy of the representations and
warranties of the Initial Purchaser in Section 8 hereof and
assuming the accuracy of the representations and warranties of
ATC in the Letter Agreement and, after the Effective Time,
herein) any statute, judgment, decree,
-31-
order, rule or regulation known to such counsel to be
applicable to ATC or any ATC Subsidiary and to transactions of
the type contemplated by the Final Memorandum, except for any
such conflict, breach or violation which would not,
individually or in the aggregate, be reasonably likely to have
an ATC Material Adverse Effect.
(xxi) Each of ATC and its subsidiaries is duly incorporated.
(xxii) Each of ATC and its subsidiaries has all requisite
corporate power and authority to execute, deliver and perform
its obligations under this Agreement, the Registration Rights
Agreement, the Indenture, the Supplemental Indenture, the
Guarantees and the Credit Agreement.
(xxiii) To the knowledge of such counsel, neither ATC nor
any of its subsidiaries is in violation of its certificate of
incorporation or bylaws, except for any such breach, default,
violation or event which would not, individually or in the
aggregate, be reasonably likely to have an ATC Material
Adverse Effect.
(xxiv) The execution, delivery and performance of this
Agreement, the Indenture, the Supplemental Indenture, the
Guarantees, the Registration Rights Agreement, the Merger
Agreement and the Credit Agreement and the consummation of the
Tender Offer, the Merger, the assumption by ATC and the
Guarantors of obligations under the Indenture and the Notes,
the Guarantee of the Notes by the Guarantors, registration of
the Securities under the Act, registration of the Exchange
Notes and Private Exchange Notes under the Act and borrowings
under the Credit Agreement, will not constitute or result in a
breach or violation of the certificate of incorporation or
bylaws of the ATC or any of its Subsidiaries.
(xxv) Except as set forth in the Final Memorandum, ATC owns,
directly or indirectly, all of the outstanding shares of
capital stock of its subsidiaries free and clear of all liens,
encumbrances, equities and claims or restrictions on
transferability (other than those imposed by the Act and the
securities or "Blue Sky" laws of certain jurisdictions) or
voting.
At the time the foregoing opinion is delivered, such counsel
shall additionally state that it has participated in conferences with
officers and other representatives of the Company and ATC,
representatives of the independent public accountants for the Company
and ATC, representatives of the Initial Purchaser and counsel for the
Initial Purchaser, at which conferences the contents of the Final
Memorandum and related
-32-
matters were discussed, and, although it has not independently verified
and is not passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Final
Memorandum (except to the extent specified in subsection 7(a)(x)), no
facts have come to its attention which lead it to believe that the
Final Memorandum, on the date thereof or at the Closing Date, contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
contained therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such firm need
express no opinion with respect to the financial statements and related
notes thereto and the other financial, statistical, accounting, reserve
and well data included in the Final Memorandum). The opinion of such
counsel described in this Section shall be rendered to the Initial
Purchaser at the request of the Company and shall so state therein.
References to the Final Memorandum in this subsection (a)
shall include any amendment or supplement thereto prepared in
accordance with the provisions of this Agreement at the Closing Date.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the
federal laws of the United States and the laws of the States of New
York and the Delaware General Corporation Law (the "DGCL"). Such
counsel may also state that with respect to the opinions as to the DGCL
and the laws of jurisdictions other than New York, such counsel has
relied on the opinion of local counsel of the Company. Such counsel may
also state that, insofar as such opinion involves factual matters, such
counsel have relied, to the extent they deem proper, upon certificates
of officers of the Company and ATC and certificates of public
officials; provided that such certificates have been provided to the
Initial Purchaser. Furthermore, the opinions in (xxi) through (xxv),
above, may be rendered by ▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel of ATC;
▇▇▇▇ ▇▇▇▇▇, Esq. may also render the opinions in (i) above, insofar as
they relate to subsidiaries incorporated in jurisdictions other than
Delaware and New York.
(b) The Initial Purchaser shall have received an opinion,
dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Initial Purchaser, with respect to certain legal matters relating to
this Agreement, and such other related matters as the Initial Purchaser
may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and
other documents and information as they may reasonably request to pass
upon such matters.
(c) The Initial Purchaser shall have received from Deloitte &
Touche, LLP ("Deloitte"), independent public accountants for ATC, and
from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
-33-
and Ernst & Young LLP, as independent public accountants for EWI and
BCM Engineers, Inc., respectively, comfort letters, dated the date
hereof and a comfort letter from Deloitte dated the Closing Date, in
form and substance reasonably satisfactory to the Initial Purchaser and
counsel for the Initial Purchaser.
(d) The representations and warranties of the Company
contained in this Agreement shall be true and correct in all material
respects on and as of the Closing Date as if made on and as of the
Closing Date; the Company shall have performed in all material respects
all covenants and agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to the Closing Date;
and, except as set forth in the Final Memorandum (exclusive of any
amendment or supplement thereto after the date hereof) subsequent to
the date of the most recent financial statements in such Final
Memorandum, there shall have been no event or development that,
individually or in the aggregate, has or would be reasonably likely to
have a Material Adverse Effect.
(e) The issuance and sale of the Securities pursuant to this
Agreement shall not be enjoined (temporarily or permanently) and no
restraining order or other injunctive order shall have been issued or,
except for the action set forth in the Final Memorandum under "Business
-- Legal Proceedings -- Recent Proceedings," any action, suit or
proceeding shall have been commenced with respect to this Agreement
before any court or governmental authority.
(f) The Initial Purchaser shall have received certificates,
dated the Closing Date, signed on behalf of the Company by its
President and its Secretary to the effect that, to their knowledge:
(i) The representations and warranties of the Company in
this Agreement are true and correct in all material respects
as if made on and as of the Closing Date, and the Company has
performed in all material respects all covenants and
agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing
Date;
(ii) At the Closing Date, since the date hereof or since the
date of the most recent financial statements in the Final
Memorandum (exclusive of any amendment or supplement thereto
after the date hereof), no event or events have occurred, no
information has become known nor does any condition exist
that, individually or in the aggregate, would be reasonably
likely to have a Material Adverse Effect or an ATC Material
Adverse Effect; and
-34-
(iii) The sale of the Securities hereunder has not been
enjoined (temporarily or permanently).
(g) The Initial Purchaser shall have received certificates,
dated the Closing Date, signed on behalf of ATC by its Senior Vice
Presidents ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to the effect that,
to their knowledge:
(i) The representations and warranties of ATC in the Letter
Agreement are true and correct in all material respects as if
made on and as of the Closing Date;
(ii) At the Closing Date, since the date hereof or since the
date of the most recent financial statements in the Final
Memorandum (exclusive of any amendment or supplement thereto
after the date hereof), no event or events have occurred, no
information has become known nor does any condition exist
that, individually or in the aggregate, would be reasonably
likely to have a Material Adverse Effect or an ATC Material
Adverse Effect; and
(iii) The sale of the Securities hereunder has not been
enjoined (temporarily or permanently).
(iv) the schedule attached to the opinion of ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, dated the closing date, sets forth each of the
subsidiaries of ATC and, for each of ATC and its subsidiaries,
each jurisdiction 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, be reasonably
likely to have a Material Adverse Effect or an ATC Material
Adverse Effect.
(h) On the Closing Date, the Initial Purchaser shall have
received the Registration Rights Agreement executed by the Company and
such agreement shall be in full force and effect at all times from and
after the Closing Date.
(i) The Indenture shall have been duly executed and delivered
by the Company and the Trustee, and the Notes shall have been duly
executed by the Company and duly authenticated by the Trustee.
(j) The Initial Purchaser shall have received a true and
correct copy of the Company's Credit Agreement, dated and executed on
or prior to the Closing Date (the "Credit Agreement"), in substantially
the form described in the Final Memorandum and on and as of the Closing
Date (after giving effect to the transactions contemplated
-35-
by this Agreement and the application of the proceeds received by the
Company from the sale of the Notes) no condition shall exist that would
constitute a Default or an Event of Default (each as defined in the
Credit Agreement) under the Credit Agreement.
(k) The Initial Purchaser shall have received a true and
correct copy of an agreement between Holdings and the Company, dated
and executed on or prior to the Closing Date, providing for the capital
contribution, on or prior to the Effective Time, by Holdings to
Acquisition Corp. of the full amount of the proceeds of any rollover of
management and employee equity in ATC into equity of Holdings, and no
condition shall exist on the Closing Date that is reasonably likely to
prevent such rollover (as such rollover is described in the Final
Memorandum).
(l) On or prior to the Closing Date, there shall have been
delivered to the Initial Purchaser true and correct copies of the
Tender Offer Documents, which Tender Offer Documents (except for any
such Tender Offer Documents dated and delivered to the Initial
Purchaser prior to the date hereof) shall be in form and substance
reasonably satisfactory to the Initial Purchaser and shall be in full
force and effect. All material conditions precedent to the consummation
of the Tender Offer as contained in the Offer to Purchase shall have
been satisfied (and not waived without the consent of the Initial
Purchaser, which consent shall not be unreasonably withheld), and any
amendment (except for any such Tender Offer Documents dated and
delivered to the Initial Purchaser prior to the date hereof) to the
Tender Offer Documents shall be required to be reasonably satisfactory
in form and substance to the Initial Purchaser.
(m) On or prior to the Closing Date, (i) the Tender Offer
shall have been consummated in accordance with the Offer to Purchase
and all applicable laws, (ii) all shares that have been tendered to the
Company pursuant to the Offer to Purchase shall have been validly
tendered and not withdrawn and shall be available for purchase by, and
shall have been purchased by, the Company in accordance with the terms
and conditions set forth in the Offer to Purchase and (iii) such
tendered Shares shall be transferable to purchaser with good title and
shall be free and clear of Liens and incumbencies created by the
Company or its affiliates. After giving effect to the consummation of
the purchase of the Shares pursuant to the Tender Offer, the Company
shall own and control that number of shares as shall be necessary to
permit the Company to approve the Merger without the affirmative vote
or approval of any other Person, and there shall be no applicable
statute or other restriction (other than provisions of the Delaware
General Corporation Law and proxy rules under Section 14 of the
Securities Exchange Act of 1934, as amended) which would prohibit,
materially restrict or materially delay the consummation of the Merger
or would be reasonably likely to make the consummation of the Merger
economically unfeasible. In addition, any state
-36-
anti-takeover law regulating the Acquisition shall have been complied
with or shall have been determined by the Initial Purchaser to be
invalid or inapplicable to the Tender Offer and the Merger. At the time
of the consummation of the Tender Offer, neither the fair price
provisions under applicable law nor the fair price provisions of ATC's
articles of incorporation shall require a higher price be paid for
Shares in the Merger than that paid in the Tender Offer, which price,
in any event, shall not exceed that amount set forth in the Offer to
Purchase and the Merger Agreement as in effect at the Effective Time.
(n) The Initial Purchaser shall have received a true and
correct copy of the Merger Agreement. The Merger Agreement as received
by the Initial Purchaser shall remain in full force and effect and
shall not have been amended, altered or modified and each party thereto
shall have performed in all material respects each of its obligations
thereunder to be performed by it on or prior to the Closing Date
(without giving effect to any waiver or consent to the modification of
any term thereof).
(o) The Letter Agreement shall have been duly executed and
delivered by ATC.
(p) (i) Holdings shall have received gross cash proceeds of
at least $30,000,000 from the sales of its common and preferred equity,
as described in the Final Memorandum (the "Equity Financing"), (ii)
Holdings shall have contributed the full amount of the gross cash
proceeds received by it from the Equity Financing, plus the full amount
of any proceeds received on or prior to the Closing Date from
investments in Holdings by existing management and employees of ATC, to
the capital of Acquisition Corp. as a common equity contribution, (iii)
Acquisition Corp. shall have utilized the full amount of such cash
contribution to make payments owing in connection with the Tender Offer
and (iv) the components of the Equity Financing (including the
Preferred Stock and Warrants) shall be substantially in the form
described in the Final Memorandum.
(q) On or before the Closing Date, the Initial Purchaser and
counsel for the Initial Purchaser shall have received such further
documents, certificates and schedules or instruments relating to the
business, corporate, legal and financial affairs of the Company and ATC
as they shall have heretofore reasonably requested from the Company,
ATC and the Guarantors.
(r) On or prior to the Closing Date, the Initial Purchaser
shall have received a solvency opinion from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, which
solvency opinion shall be in form and substance reasonably satisfactory
to the Initial Purchaser and shall set forth the conclusions that,
after giving effect to the Transactions, each of Holdings and its
-37-
Subsidiaries on a consolidated basis and Acquisition Corp. and its
Subsidiaries on a consolidated basis, is not insolvent, will not be
rendered insolvent by the indebtedness incurred in connection
therewith, will not be left with unreasonably small capital with which
to engage in their business and will not have incurred debts beyond
their ability to pay such debts as they mature.
All such documents, opinions, certificates and schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchaser and counsel for the Initial Purchaser. The Company shall
furnish to the Initial Purchaser such conformed copies of such documents,
opinions, certificates and schedules or instruments in such quantities as the
Initial Purchaser shall reasonably request.
8. Offering of Securities; Restrictions on Transfer. The
Initial Purchaser represents and warrants that it is a QIB. The Initial
Purchaser agrees with the Company that (i) it has not and will not solicit
offers for, or offer or sell, the Securities by any form of general solicitation
or general advertising (as those terms are used in Regulation D under the Act)
or in any manner involving a public offering within the meaning of Section 4(2)
of the Act; and (ii) it has and will solicit offers for the Securities only
from, and will offer the Securities only to (A) in the case of offers inside the
United States, persons whom the Initial Purchaser reasonably believes to be QIBs
or, if any such person is buying for one or more institutional accounts for
which such person is acting as fiduciary or agent, only when such person has
represented to the Initial Purchaser that each such account is a QIB, to whom
notice has been given that such sale or delivery is being made in reliance on
Rule 144A, and, in each case, in transactions under Rule 144A and (B) in the
case of offers outside the United States, to persons other than U.S. persons
("foreign Purchaser," which term shall include dealers or other professional
fiduciaries in the United States acting on a discretionary basis for foreign
beneficial owners (other than an estate or trust)); provided, however, that in
the case of this clause (B), in purchasing such Securities such persons are
deemed to have represented and agreed as provided under the caption "Transfer
Restrictions" contained in the Final Memorandum.
9. Indemnification and Contribution. (a) The Company and the
Guarantors agree, jointly and severally, to indemnify and hold harmless the
Initial Purchaser and the affiliates, directors, officers, agents,
representatives and employees of the Initial Purchaser, and each other person,
if any, who controls the Initial Purchaser within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, against any losses, claims, damages
or liabilities, joint or several, to which the Initial Purchaser or any such
affiliate, director, officer, agent, representative, employee or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as any such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon:
-38-
(i) any untrue statement or alleged untrue statement of any material
fact contained in (A) any Memorandum or any amendment or supplement
thereto or (B) any application or other document, or any amendment or
supplement thereto, executed by the Company or any Guarantor or based
upon written information furnished by or on behalf of the Company or
any Guarantor filed in any jurisdiction in order to qualify the
Securities under the securities or "Blue Sky" laws thereof or filed
with any securities association or securities exchange (each, an
"Application"); or
(ii) the omission or alleged omission to state, in any Memorandum or
any amendment or supplement thereto, or any Application, 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, as incurred, the Initial Purchaser and each such affiliate,
director, officer, agent, representative and employee and each such controlling
person for any legal or other expenses reasonably incurred by the Initial
Purchaser, such affiliate, director, officer, agent, representative or employee
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company and the
Guarantors will not be liable (i) in any such case to the extent that any such
loss, claim, damage, or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Memorandum or any amendment or supplement thereto, or any Application, in
reliance upon and in conformity with written information furnished to the
Company by the Initial Purchaser specifically for use therein or (ii) with
respect to the Preliminary Memorandum, to the extent that any such loss, claim,
damage or liability arises solely from the fact that the Initial Purchaser sold
Securities to a person to whom there was not sent or given a copy of the Final
Memorandum (as amended or supplemented) at or prior to the written confirmation
of such sale if the Company shall have previously furnished copies thereof to
the Initial Purchaser in accordance with Section 5(d) hereof and the Final
Memorandum (as amended or supplemented) would have corrected any such untrue
statement or omission. This indemnity agreement will be in addition to any
liability that the Company and the Guarantors may otherwise have to the
indemnified parties. The Company and the Guarantors shall not be liable under
this subsection (a) for any settlement of any claim or action effected without
its consent, which consent shall not be unreasonably withheld or delayed.
The Initial Purchaser shall not, without the prior written
consent of the Company and the Guarantors, effect any settlement or compromise
of any pending or threatened proceeding in respect of which the Company and the
Guarantors are or could have been a party, or indemnity could have been sought
hereunder by the Company and the Guarantors, unless such settlement (A) includes
an unconditional written release of the Company and the Guarantors, in form and
substance reasonably satisfactory to the Company and the Guaran-
-39-
tors, from all liability on claims that are the subject matter of such
proceeding and (B) does not include any statement as to an admission of fault,
culpability or failure to act by or on behalf of the Company or the Guarantors.
(b) The Initial Purchaser agrees to indemnify and hold
harmless the Company and the Guarantors, its respective affiliates, directors,
officers, agents, representatives and employees and each other person, if any,
who controls the Company and the Guarantors within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Company or any Guarantor or any such affiliate,
director, officer, agent, representative, employee or controlling person may
become subject under the Act, 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 (i) any untrue statement or alleged untrue statement of any
material fact contained in any Memorandum or any amendments or supplement
thereto, or any Application or (ii) the omission or the alleged omission to
state therein a material fact required to be stated in any Memorandum or any
amendment or supplement thereto, or any Application, or necessary to make the
statements therein 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 concerning the Initial Purchaser furnished to the Company by the
Initial Purchaser specifically for use therein; and, subject to the limitation
set forth immediately preceding this clause, will reimburse, as incurred, any
legal or other expenses reasonably incurred by the Company or any Guarantor or
any such affiliate, director, officer, agent, representative, employee or
controlling person in connection with investigating or defending against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action in respect thereof. This indemnity agreement will be
in addition to any liability that the Initial Purchaser may otherwise have to
the indemnified parties. The Initial Purchaser shall not be liable under this
Section 9 for any settlement of any claim or action effected without its
consent, which consent shall not be unreasonably withheld or delayed.
The Company and the Guarantors shall not, without the prior
written consent of the Initial Purchaser, effect any settlement or compromise of
any pending or threatened proceeding in respect of which the Initial Purchaser
is or could have been a party, or indemnity could have been sought hereunder by
the Initial Purchaser, unless such settlement (A) includes an unconditional
written release of the Initial Purchaser, in form and substance reasonably
satisfactory to the Initial Purchaser, from all liability on claims that are the
subject matter of such proceeding and (B) does not include any statement as to
an admission of fault, culpability or failure to act by or on behalf of the
Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such indemnified
party is entitled to in-
-40-
demnification under this Section 9, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this Section
9, notify the indemnifying party of the commencement thereof in writing; but the
omission to so notify the indemnifying party (i) will not relieve it from any
liability under subsection (a) or (b) above or (d) below unless and to the
extent 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 subsections (a) and (b) above or (d)
below. 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; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (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 receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 9 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Initial Purchaser in the case
subsection (a) of this Section 9 or the Company in the case of subsection (b) of
this Section 9, representing the indemnified parties under such subsection (a)
or subsection (b), as the case may be, who are parties to such action or
actions) or (ii) the indemnifying party has authorized in writing the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by
-41-
such indemnified party without the prior written consent of the indemnifying
party (which consent shall not be unreasonably withheld), unless such
indemnified party waived in writing its rights under this Section 9, in which
case the indemnified party may effect such a settlement without such consent.
(d) In circumstances in which the indemnity agreement
provided for in the preceding subsections of this Section 9 is unavailable to,
or insufficient to hold harmless, an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Company and
the Guarantors on the one hand and the Initial Purchaser on the other shall be
deemed to be in the same proportion as the total proceeds from the offering
(before deducting expenses) received by the Company bear to the total discounts
and commissions received by the Initial Purchaser. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
and the Guarantors on the one hand, or the Initial Purchaser on the other, the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission or alleged statement or omission,
and any other equitable considerations appropriate in the circumstances. The
Company, the Guarantors and the Initial Purchaser agree that it would not be
just and equitable if the amount of such contribution were determined by pro
rata or per capita allocation or by any other method of allocation that does not
take into account the equitable considerations referred to in the first sentence
of this subsection (d). Notwithstanding any other provision of this subsection
(d), the Initial Purchaser shall not be obligated to make contributions
hereunder that in the aggregate exceed the total discounts, commissions and
other compensation received by the Initial Purchaser under this Agreement, less
the aggregate amount of any damages that the Initial Purchaser has otherwise
been required to pay by reason of the untrue or alleged untrue statements or the
omissions or alleged omissions to state a material fact, and 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 subsection (d), each
affiliate, director, officer, agent, representative and employee of the Initial
Purchaser and each person, if
-42-
any, who controls the Initial Purchaser within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as the Initial Purchaser, and each affiliate, director, officer, agent,
representative and employee of the Company and the Guarantors and each person,
if any, who controls the Company or an Guarantor within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company and the Guarantors.
10. Survival Clause. The respective representations,
warranties, agreements, covenants, indemnities and other statements of the
Company, the Guarantors, its officers and the Initial Purchaser set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company, the Guarantors, any of its
officers or directors, the Initial Purchaser or any controlling person referred
to in Section 9 hereof and (ii) delivery of and payment for the Securities. The
respective agreements, covenants, indemnities and other statements set forth in
Sections 6, 9 and 15 hereof shall remain in full force and effect, regardless of
any termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated in the
sole discretion of the Initial Purchaser by notice to the Company given prior to
the Closing Date in the event that the Company shall have failed, refused or
been unable to perform, in all material respects, all obligations and satisfy,
in all material respects, all conditions on its part to be performed or
satisfied hereunder at or prior thereto or, if at or prior to the Closing Date:
(i) except in each case as described in the Final Memorandum
(exclusive of any amendment or supplement thereto), either (x) the
Company or any Guarantor or ATC or any ATC Subsidiary shall have
sustained any loss or interference with respect to its businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any strike, labor dispute,
slow down or work stoppage or any legal or governmental proceeding,
which loss or interference, in the sole judgment of the Initial
Purchaser, has had or has a Material Adverse Effect or ATC Material
Adverse Effect, or (y) there shall have been, in the sole judgment of
the Initial Purchaser, any event or development that, individually or
in the aggregate, has or could be reasonably likely to have a Material
Adverse Effect (including without limitation a change in control of the
Company) or ATC Material Adverse Effect (including without limitation a
change in control of ATC other than pursuant to the Offer to Purchase);
(ii) trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or the NASDAQ National Market shall have
been suspended or maximum or minimum prices shall have been established
on any such exchange or market;
-43-
(iii) a banking moratorium shall have been declared by New York or
United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international
calamity or emergency or (C) any material change in the financial
markets of the United States that, in the case of (A), (B) or (C) above
and in the sole judgment of the Initial Purchaser, makes it
impracticable or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Final Memorandum;
(v) any securities of the Company or ATC shall have been downgraded
or placed on any "watch list" for possible downgrading by any
nationally recognized statistical rating organization;
(vi) the Company shall have withdrawn or modified the offer to
purchase made pursuant to the Offer to Purchase without the consent of
the Initial Purchaser; or
(vii) any party to the Merger Agreement shall have terminated, or
taken steps to terminate, such Merger Agreement or its obligations
thereunder.
(b) Termination of this Agreement pursuant to this Section 11 shall
be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by the Initial Purchaser. The
statements set forth in the last paragraph of the cover page and the third,
fifth, sixth and seventh paragraphs of the section entitled "Private Placement"
constitute the only information furnished by the Initial Purchaser to the
Company for the purposes of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing
and, if sent to the Initial Purchaser, shall be mailed or delivered or
telecopied and confirmed in writing to BT Alex. ▇▇▇▇▇ Incorporated, One Bankers
Trust Plaza, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Finance Department, and if sent to the Company or the Guarantors, shall be
mailed, delivered or telecopied and confirmed in writing to the Company at:
Acquisition Corp., c/▇ ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, L.L.C., ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: President.
14. Successors. This Agreement shall inure to the benefit of
and be binding upon the Initial Purchaser, the Company, the Guarantors and their
respective successors, assigns and legal representatives, and nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or
-44-
claim under or in respect of this Agreement, or any provisions herein contained;
this Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the Initial Purchaser, the Company,
the Guarantors and their respective successors, assigns and legal
representatives and for the benefit of no other person except that (i) the
indemnities of the Company and the Guarantors contained in Section 9 of this
Agreement shall also be for the benefit of the affiliates, directors, officers,
agents, representatives and employees of the Initial Purchaser and any person or
persons who control the Initial Purchaser within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act and (ii) the indemnities of the
Initial Purchaser contained in Section 9 of this Agreement shall also be for the
benefit of the affiliates, directors, officers, agents, representatives and
employees of the Company and the Guarantors and any person or persons who
control the Company or any Guarantor within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act. No purchaser of any of the Securities from
the Initial Purchaser will be deemed a successor because of such purchase.
15. Guarantor Execution. The Company shall cause each of the
Guarantors to execute and deliver this Agreement, the Registration Rights
Agreement, the Supplemental Indenture and the Guarantees concurrently with the
Effective Time and the Guarantors shall execute each of the foregoing in
consideration of, among other things, consummation of the Offering and Merger;
provided, however, that all obligations of the Guarantors arising under this
Agreement (including indemnity obligations) shall be as of the date first
written above and all representations and warranties of the Guarantors herein
shall be as of the date first written above and the Closing Date. In the event
of a breach by the Company of its obligations under this Section 15, the Company
agrees that monetary damages would not be adequate compensation for any loss or
damage incurred by such breach and hereby further agrees that, in the event of
an action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
16. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW.
17. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-45-
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement among the
Company, the Guarantors and the Initial Purchaser.
Very truly yours,
THE COMPANY:
ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: President
THE GUARANTORS:
ATC ▇▇▇▇▇▇▇▇ INC., a South
Dakota corporation, as
Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
ATC CONSTRUCTION SERVICES INC.,
a Massachusetts corporation,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
-46-
ATC ENVIRONMENTAL INC., a
Delaware corporation, as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
ATC INSYS TECHNOLOGY INC., a
Delaware corporation, as
Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
ATC MANAGEMENT INC., a South
Dakota corporation, as
Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
ATC NEW ENGLAND CORP., a
Delaware corporation, as
Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
BING YEN & ASSOCIATES, INC., a
California corporation, as
Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
-47-
ENVIRONMENTAL WARRANTY, INC., a
Connecticut corporation, as
Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
HYGEIA LABORATORIES INC., a
Delaware corporation, as
Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
BT ALEX. ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
Exhibit A
CONFORMED AS EXECUTED
----------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
Dated as of January 29, 1998
Among
ACQUISITION CORP.
and
THE GUARANTORS NAMED HEREIN
as Issuers
and
BT ALEX. ▇▇▇▇▇ INCORPORATED
as Initial Purchaser
12% Senior Subordinated Notes due 2008
-------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated
as of January 29, 1998, among ACQUISITION CORP., a Delaware corporation (the
"Company"), as issuer, ATC ▇▇▇▇▇▇▇▇ INC., a South Dakota corporation, ATC
CONSTRUCTION SERVICES INC., a Massachusetts corporation, ATC ENVIRONMENTAL INC.,
a Delaware corporation, ATC INSYS TECHNOLOGY INC., a Delaware corporation, ATC
MANAGEMENT INC., a South Dakota corporation, ATC NEW ENGLAND CORP., a Delaware
corporation, BING YEN & ASSOCIATES, INC., a California corporation,
ENVIRONMENTAL WARRANTY INC., a Connecticut corporation, and HYGEIA LABORATORIES
INC., a Delaware corporation, as guarantors (the "Guarantors," and together with
the Company, the "Issuers"), and BT ALEX.
▇▇▇▇▇ INCORPORATED, as initial purchaser (the "Initial Purchaser").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of January 22, 1998, among the Issuers and the Initial
Purchaser (the "Purchase Agreement"), which provides for the sale by the Company
to the Initial Purchaser of $100,000,000 aggregate principal amount of the
Company's 12% Senior Subordinated Notes due 2008 (the "Notes"), guaranteed by
the Guarantors (the "Guarantees"). In order to induce the Initial Purchaser to
enter into the Purchase Agreement, the Issuers have agreed to provide the
registration rights set forth in this Agreement for the benefit of the Initial
Purchaser and any subsequent holder or holders of the Notes. The execution and
delivery of this Agreement is a condition to the Initial Purchaser's obligation
to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4 hereof.
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2 hereof.
Effectiveness Date: The 130th day after the Issue Date
Effectiveness Period: See Section 3(a) hereof.
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Event Date: See Section 4(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2 hereof.
Exchange Offer: See Section 2 hereof.
Exchange Offer Registration Statement: See Section 2 hereof.
Filing Date: (A) If no Exchange Offer Registration Statement
has been filed by the Issuers pursuant to this Agreement, the 60th day after the
Issue Date; provided, however, that if a Shelf Notice is given within 10 days of
the Filing Date, then the Filing Date with respect to the Initial Shelf
Registration shall be the 30th calendar day after the date of the giving of such
Shelf Notice; and (B) in each other case (which may be applicable
notwithstanding the consummation of the Exchange Offer), the 30th day after the
delivery of a Shelf Notice.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Indenture: The Indenture, dated as of January 29, 1998, by and
among the Issuers and State Street Bank and Trust Company, as Trustee, pursuant
to which the Notes and the Guarantees are being issued, as the same may be
amended or supplemented from time to time in accordance with the terms thereof.
Initial Purchaser: See the introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 5(n) hereof.
Issue Date: January 29, 1998, the date of original issuance of
the Notes.
Issuers: See the introductory paragraphs hereto.
NASD: See Section 5(r) hereof.
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Offering Memorandum: The final offering memorandum of the
Company dated January 22, 1998, in respect of the offering of the Notes.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, trustee, corporation, partnership,
joint stock company, trust, unincorporated association, union, business
association, firm or other legal entity.
Private Exchange: See Section 2(b) hereof.
Private Exchange Notes: See Section 2(b) hereof.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act and any term sheet filed pursuant
to Rule 434 under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereof.
Records: See Section 5(m) hereof.
Registrable Notes: Each Note upon its original issuance and at
all times subsequent thereto, each Exchange Note as to which Section 2(c)(iv)
hereof is applicable upon original issuance and at all times subsequent thereto
and each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, until (i) a Registration Statement (other than, with respect
to any Exchange Note as to which Section 2(c)(iv) hereof is applicable, the
Exchange Offer Registration Statement) covering such Note, Exchange Note or
Private Exchange Note has been declared effective by the SEC and such Note,
Exchange Note or such Private Exchange Note, as the case may be, has been
disposed of in accordance with such effective Registration Statement, (ii) such
Note has been exchanged pursuant to the Exchange Offer for an Exchange Note or
Exchange Notes that may be resold without restriction other than prospectus
delivery requirements for Participating Broker/Dealers under state and federal
securities laws, (iii) such Note, Exchange Note or Private Exchange Note, as the
case may be, ceases to be outstanding for purposes of the Indenture or (iv) such
Note, Exchange Note or Private Exchange Note, as the case may be, may be resold
without restriction pursuant to Rule 144 under the Securities Act.
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Registration Statement: Any registration statement of the
Company and/or the Guarantors that covers any of the Notes, the Exchange Notes
or the Private Exchange Notes (and the related Guarantees) filed with the SEC
under the Securities Act, including the Prospectus, amendments and supplements
to such registration statement, including post-effective amendments, all
exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of the issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration: See Section 3(b) hereof.
Subsequent Shelf Registration: See Section 3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and the trustee (if
any) under any indenture governing the Exchange Notes and Private Exchange
Notes.
Underwritten registration or underwritten offering: A
registration in which securities of one or more of the Issuers are sold to an
underwriter for reoffering to the public.
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2. Exchange Offer
(a) The Issuers shall file with the SEC, no later than the
Filing Date, a Registration Statement (the "Exchange Offer Registration
Statement") on an appropriate registration form with respect to a
registered offer (the "Exchange Offer") to exchange any and all of the
Registrable Notes for a like aggregate principal amount of notes of the
Company, guaranteed by the Guarantors, that are identical in all
material respects to the Notes, except that the Exchange Notes shall
contain no restrictive legend thereon (the "Exchange Notes"), and which
are entitled to the benefits of the Indenture or a trust indenture
which is identical in all material respects to the Indenture (other
than such changes to the Indenture or any such identical trust
indenture as are necessary to comply with the TIA) and which, in either
case, has been qualified under the TIA. The Exchange Offer shall comply
with all applicable tender offer rules and regulations under the
Exchange Act and other applicable law. The Issuers shall use their
commercially reasonable best efforts to (x) cause the Exchange Offer
Registration Statement to be declared effective under the Securities
Act on or before the Effectiveness Date; (y) keep the Exchange Offer
open for at least 20 days (or longer if required by applicable law)
after the date that notice of the Exchange Offer is mailed to Holders;
and (z) consummate the Exchange Offer on or prior to the 45th day
following the date on which the Exchange Offer Registration Statement
is declared effective by the SEC. If, after the Exchange Offer
Registration Statement is initially declared effective by the SEC, the
Exchange Offer or the issuance of the Exchange Notes thereunder is
interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, the
Exchange Offer Registration Statement shall be deemed not to have
become effective for purposes of this Agreement.
Each Holder that participates in the Exchange Offer will be
required, as a condition to its participation in the Exchange Offer, to
represent to the Company in writing (which may be contained in the
applicable letter of transmittal) that any Exchange Notes to be
received by it will be acquired in the ordinary course of its business,
that at the time of the consummation of the Exchange Offer such Holder
will have no arrangement or understanding with any Person to
participate in the distribution of the Exchange Notes in violation of
the provisions of the Securities Act, and that such Holder is not an
affiliate of the Company within the meaning of the Securities Act.
Upon consummation of the Exchange Offer in accordance with
this Section 2, the provisions of this Agreement shall continue to
apply, mutatis mutandis, solely with respect to Registrable Notes that
are Private Exchange Notes, Exchange Notes as to which Section 2(c)(iv)
is applicable and Exchange Notes held by Participating Broker-Dealers
(as defined), and the Issuers shall have no further obligation to
register
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Registrable Notes (other than Private Exchange Notes and other than in
respect of any Exchange Notes as to which clause 2(c)(iv) hereof
applies) pursuant to Section 3 hereof. No securities other than the
Exchange Notes and Guarantees shall be included in the Exchange Offer
Registration Statement.
(b) The Issuers shall include within the Prospectus contained
in the Exchange Offer Registration Statement a section entitled "Plan
of Distribution," reasonably acceptable to the Initial Purchaser, which
shall contain a summary statement of the positions taken or policies
made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner
(as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes
received by such broker-dealer in the Exchange Offer (a "Participating
Broker-Dealer"), whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or policies
represent the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit, to the extent
permitted by applicable policies and regulations of the SEC, the use of
the Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including, to the extent permitted
by applicable policies and regulations of the SEC, all Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Notes in
compliance with the Securities Act.
The Issuers shall use their commercially reasonable best
efforts to keep the Exchange Offer Registration Statement effective and
to amend and supplement the Prospectus contained therein in order to
permit such Prospectus to be lawfully delivered by all Persons subject
to the prospectus delivery requirements of the Securities Act for such
period of time as is necessary to comply with applicable law in
connection with any resale of the Exchange Notes covered thereby;
provided, however, that such period shall not exceed 45 days after such
Exchange Offer Registration Statement is declared effective (or such
longer period if extended pursuant to the last paragraph of Section 5
hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, any Holder
holds any Notes acquired by it that have, or that are reasonably likely
to be determined to have, the status of an unsold allotment in an
initial distribution, or any Holder is not entitled by law to
participate in the Exchange Offer, the Company upon the request of any
such Holder shall simultaneously with the delivery of the Exchange
Notes in the Exchange Offer, issue and deliver to any such Holder, in
exchange (the "Private Exchange") for such Notes held by any such
Holder, a like principal amount of notes (the "Private Exchange Notes")
of the Company, guaranteed by the Guarantors, if applicable, that are
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identical in all material respects to the Exchange Notes except for the
placement of a restrictive legend on such Private Exchange Notes. The
Private Exchange Notes shall be issued pursuant to the same indenture
as the Exchange Notes and bear the same CUSIP number as the Exchange
Notes.
In connection with the Exchange Offer, the Issuers shall:
(i) mail, or cause to be mailed, to each Holder of record
entitled to participate in the Exchange Offer a copy of the
Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal
and related documents;
(ii) use their commercially reasonable best efforts to keep
the Exchange Offer open for not less than 20 days after the
date that notice of the Exchange Offer is mailed to Holders
(or longer if required by applicable law);
(iii) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of
New York;
(iv) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last
business day on which the Exchange Offer shall remain open;
and
(v) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
and the Private Exchange, if any, the Issuers shall:
(x) accept for exchange all Registrable Notes validly
tendered and not validly withdrawn pursuant to the Exchange
Offer and the Private Exchange, if any;
(y) deliver to the Trustee for cancellation all Registrable
Notes so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly
to each Holder of Notes, Exchange Notes or Private Exchange
Notes, as the case may be, equal in principal amount to the
Notes of such Holder so accepted for exchange.
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The Exchange Offer and the Private Exchange shall not be
subject to any conditions, other than that (i) the Exchange Offer or
Private Exchange, as the case may be, does not violate applicable law
or any applicable interpretation of the staff of the SEC, (ii) no
action or proceeding shall have been instituted or threatened in any
court or by any governmental agency which might materially impair the
ability of the Issuers to proceed with the Exchange Offer or the
Private Exchange, and no material adverse development shall have
occurred in any existing action or proceeding with respect to the
ability of the Issuers to so proceed and (iii) all governmental
approvals shall have been obtained, which approvals the Issuers deem
necessary for the consummation of the Exchange Offer or Private
Exchange.
The Exchange Notes and the Private Exchange Notes shall be
issued under (i) the Indenture or (ii) an indenture identical in all
material respects to the Indenture and which, in either case, has been
qualified under the TIA or is exempt from such qualification and shall
provide that the Exchange Notes shall not be subject to the transfer
restrictions set forth in the Indenture. The Indenture or such
indenture shall provide that the Exchange Notes, the Private Exchange
Notes and the Notes shall vote and consent together on all matters as
one class and that none of the Exchange Notes, the Private Exchange
Notes or the Notes will have the right to vote or consent as a separate
class on any matter.
(c) If, (i) because of any change in law or in currently
prevailing interpretations of the staff of the SEC, the Issuers are not
permitted to effect the Exchange Offer, (ii) the Exchange Offer is not
consummated within 175 days of the Issue Date, (iii) any holder of
Private Exchange Notes so requests in writing to the Company within 60
days after the consummation of the Exchange Offer, or (iv) in the case
of any Holder that participates in the Exchange Offer, such Holder does
not receive Exchange Notes on the date of the exchange that may be sold
without restriction under state and federal securities laws (other than
due solely to the status of such Holder as an affiliate of the Company
within the meaning of the Securities Act and other than prospectus
delivery requirements for Participating Broker/Dealers), then in the
case of each of clauses (i) to and including (iv) of this sentence, the
Company shall promptly deliver to the Holders and the Trustee written
notice thereof (the "Shelf Notice") and shall file a Shelf Registration
pursuant to Section 3 hereof.
3. Shelf Registration
If at any time a Shelf Notice is delivered as contemplated by
Section 2(c) hereof, then:
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(a) Shelf Registration. The Issuers shall file with the SEC a
Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Notes not
exchanged in the Exchange Offer, Private Exchange Notes and Exchange
Notes as to which Section 2(c)(iv) is applicable (the "Initial Shelf
Registration"). The Issuers shall use their commercially reasonable
best efforts to file with the SEC the Initial Shelf Registration on or
before the applicable Filing Date. The Initial Shelf Registration shall
be on Form S-1 or another appropriate form permitting registration of
such Registrable Notes for resale by Holders in the manner or manners
designated by them (including, without limitation, one or more
underwritten offerings). The Issuers shall not permit any securities
other than the Registrable Notes to be included in the Initial Shelf
Registration or any Subsequent Shelf Registration (as defined below).
Subject to the last sentence of Section 5(j) the Issuers shall
use their commercially reasonable best efforts to cause the Initial
Shelf Registration to be declared effective under the Securities Act on
or prior to the Effectiveness Date and to keep the Initial Shelf
Registration continuously effective under the Securities Act until the
date which is two years from the Issue Date (the "Effectiveness
Period"), or such shorter period ending when (i) all Registrable Notes
covered by the Initial Shelf Registration have been sold in the manner
set forth and as contemplated in the Initial Shelf Registration or (ii)
a Subsequent Shelf Registration covering all of the Registrable Notes
covered by and not sold under the Initial Shelf Registration or an
earlier Subsequent Shelf Registration has been declared effective under
the Securities Act; provided, however, that the Effectiveness Period in
respect of the Initial Shelf Registration shall be extended to the
extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the Securities Act
and as otherwise provided herein.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be
effective for any reason at any time during the Effectiveness Period
(other than because of the sale of all of the securities registered
thereunder), the Issuers shall use their commercially reasonable best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 30 days of such
cessation of effectiveness amend the Initial Shelf Registration in a
manner to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration
Statement pursuant to Rule 415 covering all of the Registrable Notes
covered by and not sold under the Initial Shelf Registration or an
earlier Subsequent Shelf Registration (each, a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the
Issuers shall use their commercially reasonable best efforts to cause
the Subsequent Shelf Registration
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to be declared effective under the Securities Act as soon as
practicable after such filing and to keep such subsequent Shelf
Registration continuously effective in the Effectiveness Period. As
used herein the term "Shelf Registration" means the Initial Shelf
Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuers shall promptly
supplement and amend any Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used
for such Shelf Registration, if required by the Securities Act, or if
reasonably requested by the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Registration
Statement or by any underwriter of such Registrable Notes.
4. Additional Interest
(a) The Issuers and the Initial Purchaser agree that the
Holders will suffer damages if the Issuers fail to fulfill their
obligations under Section 2 or Section 3 hereof and that it would not
be feasible to ascertain the extent of such damages with precision.
Accordingly, the Company agrees to pay, as liquidated damages,
additional interest on the Notes ("Additional Interest") under the
circumstances and to the extent set forth below (each of which shall be
given independent effect):
(i) if (A) neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration has been filed on
or prior to the applicable Filing Date or (B) notwithstanding
that the Issuers have consummated or will consummate the
Exchange Offer, the Issuers are required to file a Shelf
Registration and such Shelf Registration is not filed on or
prior to the Filing Date applicable thereto, then, commencing
on the day after any such Filing Date, Additional Interest
shall accrue on the principal amount of the Notes at a rate of
0.50% per annum for the first 90 days immediately following
each such Filing Date, and such Additional Interest rate shall
increase by an additional 0.50% per annum at the beginning of
each subsequent 90-day period; or
(ii) if (A) neither the Exchange Offer Registration
Statement nor the Initial Shelf Registration is declared
effective by the SEC on or prior to the relevant Effectiveness
Date or (B) notwithstanding that the Issuers have consummated
or will consummate the Exchange Offer, the Issuers are
required to file a Shelf Registration and such Shelf
Registration is not declared effective by the SEC on or prior
to the date which is 100 days from the date such Shelf
Registration was filed, then, commencing on the day after such
required effective date, Additional Interest shall accrue on
the principal amount of the Notes at a rate of 0.50% per annum
for the first 90 days immediately following such
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date, and such Additional Interest rate shall increase by an
additional 0.50% per annum at the beginning of each subsequent
90-day period; or
(iii) if (A) the Issuers have not exchanged
Exchange Notes for all Notes validly tendered in accordance
with the terms of the Exchange Offer on or prior to the 45th
day after the date on which the Exchange Offer Registration
Statement relating thereto was declared effective or (B) if
applicable, a Shelf Registration has been declared effective
and such Shelf Registration ceases to be effective at any time
it is required to be kept effective during the Effectiveness
Period, then Additional Interest shall accrue on the principal
amount of the Notes at a rate of 0.50% per annum for the first
90 days commencing on the (x) 46th day after such effective
date, in the case of (A) above, or (y) the day such Shelf
Registration ceases to be effective in the case of (B) above,
and such Additional Interest rate shall increase by an
additional 0.50% per annum at the beginning of each such
subsequent 90-day period;
provided, however, that the Additional Interest rate on the Notes may
not exceed at any one time in the aggregate 1.0% per annum; provided,
further, however, that (1) upon the filing of the applicable Exchange
Offer Registration Statement or the applicable Shelf Registration as
required hereunder (in the case of clause (i) above of this Section 4),
(2) upon the effectiveness of the Exchange Offer Registration Statement
or the applicable Shelf Registration Statement as required hereunder
(in the case of clause (ii) of this Section 4), or (3) upon the
exchange of the applicable Exchange Notes for all Notes tendered (in
the case of clause (iii)(A) of this Section 4), or upon the
effectiveness of the applicable Shelf Registration Statement which had
ceased to remain effective (in the case of (iii)(B) of this Section 4),
Additional Interest on the Notes in respect of which such events relate
as a result of such clause (or the relevant subclause thereof), as the
case may be, shall cease to accrue.
(b) The Company shall notify the Trustee within three
business days after each and every date on which an event occurs in
respect of which Additional Interest is required to be paid (an "Event
Date"). Any amounts of Additional Interest due pursuant to (a)(i),
(a)(ii) or (a)(iii) of this Section 4 will be payable in cash
semiannually on each July 15 and January 15 (to the holders of record
on the July 1 and January 1 immediately preceding such dates),
commencing with the first such date occurring after any such Additional
Interest commences to accrue. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate by
the principal amount of the Registrable Notes, multiplied by a
fraction, the numerator of which is the number of days such Additional
Interest rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months
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and, in the case of a partial month, the actual number of days
elapsed), and the denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Issuers shall effect such registrations
to permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Issuers hereunder each
of the Issuers shall:
(a) Prepare and file with the SEC prior to the applicable
Filing Date, a Registration Statement or Registration Statements as
prescribed by Sections 2 or 3 hereof, and use its commercially
reasonable best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided,
however, that, if (1) such filing is pursuant to Section 3 hereof, or
(2) a Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period relating thereto, before
filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Issuers shall furnish to and afford the
Holders of the Registrable Notes included in such Registration
Statement or each such Participating Broker-Dealer who has provided
written notice to the Company that it will be a Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all
such documents (including, to the extent requested by any such Holder,
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed (in each case at least five days
prior to such filing, or such later date as is reasonable under the
circumstances). The Issuers shall not file any Registration Statement
or Prospectus or any amendments or supplements thereto if the Holders
of a majority in aggregate principal amount of the Registrable Notes
included in such Registration Statement, or any such Participating
Broker-Dealer, as the case may be, their counsel, or the managing
underwriters, if any, shall reasonably object on a timely basis.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement or
Exchange Offer Registration Statement, as the case may be, as may be
necessary to keep such Registration Statement continuously effective
for the Effectiveness Period or the Applicable Period, as the case may
be; during the Effectiveness Period or Applicable Period, as the case
may be, cause the related Prospectus to be supplemented by any
Prospectus supplement required by applicable law, and as so
supplemented to be filed pursuant to Rule 424 (or
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any similar provisions then in force) promulgated under the Securities
Act; and during the Effectiveness Period and Applicable Period, as the
case may be, comply with the provisions of the Securities Act and the
Exchange Act applicable to each of them with respect to the disposition
of all securities covered by such Registration Statement as so amended
or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating
Broker-Dealer covered by any such Prospectus. The Issuers shall be
deemed not to have used their commercially reasonable best efforts to
keep a Registration Statement effective during the Effectiveness Period
or the Applicable Period, as the case may be, relating thereto if any
Issuer voluntarily takes any action that would result in selling
Holders of the Registrable Notes covered thereby or Participating
Broker-Dealers seeking to sell Exchange Notes not being able to sell
such Registrable Notes or such Exchange Notes during that period unless
such action is required by applicable law or permitted by this
Agreement.
(c) If (1) a Shelf Registration is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period relating thereto from whom the Company has received written
notice that it will be a Participating Broker-Dealer in the Exchange
Offer, notify the selling Holders of Registrable Notes (during the
Effectiveness Period), or each such Participating Broker-Dealer (during
the Applicable Period), as the case may be, their counsel and the
managing underwriters, if any, promptly (but in any event within one
day), and confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any such Holder may,
upon request, obtain, at the sole expense of the Issuers, one conformed
copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or
deemed to be incorporated by reference and exhibits), (ii) of the
issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus or the initiation of any proceedings for
that purpose, (iii) if at any time when it has been notified by such
Holder that a prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Notes or resales
of Exchange Notes by Participating Broker-Dealers the representations
and warranties of the Issuers contained in any agreement (including any
underwriting agreement) contemplated by Section 5(l) hereof cease to be
true and correct in all material respects, (iv) of the receipt by any
Issuer of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration
State-
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ment or any of the Registrable Notes or the Exchange Notes to be sold
by any Participating Broker-Dealer for offer or sale in any
jurisdiction, or the initiation or threatening of any proceeding for
such purpose, (v) of the happening of any event, the existence of any
condition or any information becoming known that makes any statement
made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any
changes in or amendments or supplements to such Registration Statement,
Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in
the case of the Prospectus, it will not contain any untrue statement of
a material fact or omit 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, and (vi)
of the Issuers' determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period and has provided written notice to the Company that it will be a
Participating Broker-Dealer, use its commercially reasonable best
efforts during the Effectiveness Period or Applicable Period, as the
case may be, to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Registrable Notes or the
Exchange Notes to be sold by any Participating Broker-Dealer, for sale
in any jurisdiction, and, if any such order is issued, to use its
commercially reasonable best efforts to obtain the withdrawal of any
such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3
and if requested by the managing underwriter or underwriters (if any),
the Holders of a majority in aggregate principal amount of the
Registrable Notes being sold in connection with an underwritten
offering or any Participating Broker-Dealer, (i) as promptly as
practicable, to the extent required by law, incorporate in a prospectus
supplement or post-effective amendment such information as the managing
underwriter or underwriters (if any), such Holders, any Participating
Broker-Dealer or counsel for any of them reasonably request to be
included therein, (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as practicable
after an Issuer has
-15-
received notification of such matters to be incorporated in such
prospectus supplement or post-effective amendment.
(f) If (1) a Shelf Registration is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, furnish to each selling Holder of Registrable Notes and to each
such Participating Broker-Dealer who so requests and to their
respective counsel and each managing underwriter, if any, at the sole
expense of the Issuers, one conformed copy of the Registration
Statement or Registration Statements and each post-effective amendment
thereto, including financial statements and schedules, and, if
requested, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, deliver to each selling Holder of Registrable Notes, or each
such Participating Broker-Dealer who so requests, as the case may be,
their respective counsel, and the underwriters, if any, at the sole
expense of the Issuers, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and each
amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject
to the last paragraph of this Section 5, the Issuers hereby consent to
the use of such Prospectus and each amendment or supplement thereto by
each of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the underwriters
or agents, if any, and dealers (if any), in connection with the
offering and sale of the Registrable Notes covered by, or the sale by
Participating Broker-Dealers of the Exchange Notes pursuant to, such
Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, and has provided written notice to
the Company that it will be a Participating Broker-Dealer use its
commercially reasonable best efforts to register or qualify, and to
cooperate with the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Notes for offer
and sale under the securities or Blue Sky laws of such jurisdictions
within the United States
-16-
as any selling Holder, such Participating Broker-Dealer, or the
managing underwriter or underwriters reasonably request in writing;
provided, however, that where Exchange Notes held by such Participating
Broker-Dealers or Registrable Notes are offered other than through an
underwritten offering, the Issuers agree to cause their counsel to
perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h), keep
each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to
be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions
of the Exchange Notes held by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration Statement;
provided, however, that no Issuer shall be required to (A) qualify
generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general service
of process in any such jurisdiction where it is not then so subject or
(C) subject itself to taxation in excess of a nominal dollar amount in
any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with The Depository Trust
Company; and enable such Registrable Notes to be in such denominations
and registered in such names as the managing underwriter or
underwriters, if any, or Holders may request.
(j) If (1) a Shelf Registration is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period and has provided written notice to the Company that it will be a
Participating Broker-Dealer, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as
practicable prepare and (subject to Section 5(a) hereof) file with the
SEC, at the sole expense of the Issuers, a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Notes being
sold thereunder or to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by such a Participating Broker-Dealer, any
such Prospectus will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements
-17-
therein, in light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the Issuers shall not be
required to amend or supplement a Registration Statement, any related
Prospectus or any document incorporated therein by reference, in the
event that, and for a period not to exceed an aggregate of 60 days in
any calendar year if, (i) an event occurs and is continuing as a result
of which the Shelf Registration would, in the Company's good faith
judgment, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and (ii) (a) the Company determines in its good faith
judgment that the disclosure of such event at such time would have a
material adverse effect on the business, operations or prospects of the
Company or (b) the disclosure otherwise relates to a pending material
business transaction that has not yet been publicly disclosed.
(k) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP
number for the Registrable Notes.
(l) In connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of
debt securities similar to the Notes in form and substance reasonably
satisfactory to the Company and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in
order to expedite or facilitate the registration or the disposition of
such Registrable Notes and, in such connection, (i) make such
representations and warranties to, and covenants with, the underwriters
with respect to the business of the Company and the subsidiaries of the
Company (including any acquired business, properties or entity, if
applicable) and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference therein,
in each case, as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Notes but in
no event more onerous than those contained in the Purchase Agreement,
and confirm the same in writing if and when requested in form and
substance reasonably satisfactory to the Company; (ii) obtain the
written opinions of counsel to the Company and written updates thereof
in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters covering the
matters customarily covered in opinions reasonably requested in
underwritten offerings and such other matters as may be reasonably
requested by the managing underwriter or underwriters; (iii) use its
best efforts to obtain "cold comfort" letters and updates thereof in
form, scope and substance reasonably satisfactory to the managing
-18-
underwriter or underwriters from the independent public accountants of
the Company (and, if necessary, any other independent public
accountants of the Company, any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included or incorporated by
reference in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings of debt securities similar to the Notes and
such other matters as reasonably requested by the managing underwriter
or underwriters as permitted by the Statement on Auditing Standards No.
72; and (iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures no less
favorable to the sellers and underwriters, if any, than those set forth
in Section 7 hereof (or such other provisions and procedures acceptable
to Holders of a majority in aggregate principal amount of Registrable
Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents, if any). The above shall be done
at each closing under such underwriting agreement, or as and to the
extent required thereunder.
(m) If (1) a Shelf Registration is filed pursuant to Section
3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, make available for inspection by any selling Holder of such
Registrable Notes being sold, or each such Participating Broker-Dealer,
as the case may be, any underwriter participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant
or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept,
during reasonable business hours and upon reasonable notice to the
Company, all financial and other records, pertinent corporate documents
and instruments of the Company and subsidiaries of the Company
(collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Company and any
of its subsidiaries to supply all information reasonably requested by
any such Inspector in connection with such Registration Statement and
Prospectus. Each Inspector shall agree in writing that it will keep the
Records confidential and that it will not disclose any of the Records
that the Company determines, in good faith, to be confidential and
notifies the Inspectors in writing are confidential unless (i) the
disclosure of such Records is necessary to avoid or correct a material
misstatement or material omission in such Registration Statement or
Prospectus, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, or
(iii) the information in such Records has been made generally available
-19-
to the public; provided, however, that prior notice shall be provided
as soon as practicable to the Company of the potential disclosure of
any information by such Inspector pursuant to clauses (i) or (ii) of
this sentence to permit the Company to obtain a protective order (or
waive the provisions of this paragraph (m)) and that such Inspector
shall take such actions as are reasonably necessary to protect the
confidentiality of such information (if practicable) to the extent such
action is otherwise not inconsistent with, an impairment of or in
derogation of the rights and interests of the Holder or any Inspector.
(n) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or the
trust indenture provided for in Section 2(a) hereof, as the case may
be, to be qualified under the TIA not later than the effective date of
the first Registration Statement relating to the Registrable Notes; and
in connection therewith, cooperate with the trustee under any such
indenture and the Holders of the Registrable Notes, to effect such
changes to such indenture as may be required for such indenture to be
so qualified in accordance with the terms of the TIA; and execute, and
use its commercially reasonable best efforts to cause such trustee to
execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the SEC to
enable such indenture to be so qualified in a timely manner.
(o) Comply in all material respects with all applicable rules
and regulations of the SEC and make generally available to its
securityholders with regard to any applicable Registration Statement, a
consolidated earnings statement satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 60 days after
the end of any fiscal quarter (or 120 days after the end of any
12-month period if such period is a fiscal year) (i) commencing at the
end of any fiscal quarter in which Registrable Notes are sold to
underwriters in a firm commitment or best efforts underwritten offering
and (ii) if not sold to underwriters in such an offering, commencing on
the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which statements shall
cover said 12-month periods.
(p) Upon consummation of the Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Company, in a form
customary for underwritten transactions, addressed to the Trustee for
the benefit of all Holders of Registrable Notes participating in the
Exchange Offer or the Private Exchange, as the case may be, that the
Exchange Notes or Private Exchange Notes, as the case may be, the
related Guarantees and the related indenture constitute legal, valid
and binding obligations of the Issuers, enforceable against them in
accordance with their respective terms, subject to customary exceptions
and qualifications.
-20-
(q) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Company (or to such other Person as directed by the Issuer) in exchange
for the Exchange Notes or the Private Exchange Notes, as the case may
be, the Company shall ▇▇▇▇, or cause to be marked, on such Registrable
Notes that such Registrable Notes are being canceled in exchange for
the Exchange Notes or the Private Exchange Notes, as the case may be;
in no event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(r) Cooperate with each seller of Registrable Notes covered
by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Notes and their
respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. (the "NASD").
(s) Use its commercially reasonable best efforts to take all
other steps reasonably necessary to effect the registration of the
Exchange Notes and/or Registrable Notes covered by a Registration
Statement contemplated hereby.
The Company may require each seller of Registrable Notes as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable Notes
as the Company may, from time to time, reasonably request. The Company may
exclude from such registration the Registrable Notes of any seller so long as
such seller fails to furnish such information within a reasonable time after
receiving such request. Each seller as to which any Shelf Registration is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in order to make the information previously furnished to the
Company by such seller not materially misleading.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Company, then such
Holder shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such Holder, to the effect that
the holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company, or (ii) in
the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by its acquisition of such Registrable Notes or Exchange
Notes to be sold by such Participat-
-21-
ing Broker-Dealer, as the case may be, that, upon actual receipt of any notice
from the Company of the happening of any event of the kind described in Section
5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such Holder will forthwith
discontinue disposition of such Registrable Notes covered by such Registration
Statement or Prospectus or Exchange Notes to be sold by such Holder or
Participating Broker-Dealer, as the case may be, until such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(j) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event that the Company shall give any such notice,
the Applicable Period shall be extended by the number of days during such
periods from and including the date of the giving of such notice to and
including the date when each seller of Registrable Notes covered by such
Registration Statement or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(j) hereof or (y)
the Advice.
6. Registration Expenses
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers (other than any underwriting
discounts or commissions) shall be borne by the Company whether or not the
Exchange Offer Registration Statement or any Shelf Registration is filed or
becomes effective or the Exchange Offer is consummated, including, without
limitation, (i) all registration and filing fees (including, without limitation,
(A) fees with respect to filings required to be made with the NASD in connection
with an underwritten offering and (B) reasonable fees and expenses of compliance
with state securities or Blue Sky laws (including, without limitation, fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in the
case of Registrable Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The Depository Trust Company
and of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement or in respect of Registrable Notes or Exchange Notes to be sold by any
Participating Broker-Dealer during the Applicable Period, as the case may be,
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company and reasonable fees and disbursements of one special
counsel for all of the sellers of Registrable Notes (exclusive of any counsel
retained pursuant to Section 7 hereof), (v) fees and disbursements of all
independent certi-
-22-
fied public accountants referred to in Section 5(l)(iii) hereof
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (vi) Securities
Act liability insurance, if the Company desires such insurance, (vii) fees and
expenses of all other Persons retained by the Issuer, (viii) internal expenses
of the Company (including, without limitation, all salaries and expenses of
officers and employees of the Company performing legal or accounting duties),
(ix) the expense of any annual audit of the Company, (x) any fees and expenses
incurred in connection with the listing of the securities to be registered on
any securities exchange, and the obtaining of a rating of the securities, in
each case, if applicable, and (xi) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, indentures and any other documents necessary in order to comply with
this Agreement.
7. Indemnification
(a) Each of the Issuers, jointly and severally, agrees to
indemnify and hold harmless each Holder of Registrable Notes and each
Participating Broker-Dealer selling Exchange Notes during the
Applicable Period, the affiliates, officers, directors,
representatives, employees and agents of each such Person, and each
Person, if any, who controls any such Person within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange
Act (each, a "Participant"), from and against any and all losses,
claims, damages, judgments, liabilities and expenses (including,
without limitation, the reasonable legal fees and other expenses
actually incurred in connection with any suit, action or proceeding or
any claim asserted) caused by, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in
any Registration Statement (or any amendment thereto) or Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or
caused by, arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the case of the
Prospectus in light of the circumstances under which they were made,
not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity
with information relating to any Participant furnished to the Company
in writing by such Participant expressly for use therein and with
respect to any preliminary Prospectus, to the extent that any such
loss, claim, damage or liability arises solely from the fact that any
Participant sold Notes to a person to whom there was not sent or given
a copy of the Prospectus (as amended or supplemented) at or prior to
the written confirmation of such sale if the Company shall have
previously furnished copies thereof to the Participant in accordance
herewith and the Prospectus
-23-
(as amended or supplemented) would have corrected any such untrue
statement or omission.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Issuers, their respective affiliates,
officers, directors, representatives, employees and agents of each
Issuer and each Person who controls each Issuer within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent (but on a several, and not joint, basis) as the
foregoing indemnity from the Issuers to each Participant, but only with
reference to information relating to such Participant furnished to the
Company in writing by such Participant expressly for use in any
Registration Statement or Prospectus, any amendment or supplement
thereto, or any preliminary prospectus. The liability of any
Participant under this paragraph shall in no event exceed the proceeds
received by such Participant from sales of Registrable Notes or
Exchange Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be
brought or asserted against any Person in respect of which indemnity
may be sought pursuant to either of the two preceding paragraphs, such
Person (the "Indemnified Person") shall promptly notify the Persons
against whom such indemnity may be sought (the "Indemnifying Persons")
in writing, and the Indemnifying Persons, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others
the Indemnifying Persons may reasonably designate in such proceeding
and shall pay the fees and expenses actually incurred by such counsel
related to such proceeding; provided, however, that the failure to so
notify the Indemnifying Persons (i) will not relieve it from any
liability under paragraph (a) or (b) above unless and to the extent
such failure results in the forfeiture by the Indemnifying Person of
substantial rights and defenses and (ii) will not, in any event,
relieve the Indemnifying Person from any obligations to any Indemnified
Person other than the indemnification obligation provided in paragraphs
(a) and (b) above. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless
(i) the Indemnifying Persons and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Persons shall
have failed within a reasonable period of time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named
parties in any such proceeding (including any impleaded parties)
include both any Indemnifying Person and the Indemnified Person or any
affiliate thereof and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Persons
shall not, in connection with such proceeding or separate but
-24-
substantially similar related proceeding in the same jurisdiction
arising out of the same general allegations, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed promptly as they are incurred. Any such
separate firm for the Participants and such control Persons of
Participants shall be designated in writing by Participants who sold a
majority in interest of Registrable Notes and Exchange Notes sold by
all such Participants and shall be reasonably acceptable to the
Company, and any such separate firm for the Issuers, their affiliates,
officers, directors, representatives, employees and agents and such
control Persons of such Issuer shall be designated in writing by the
Company and shall be reasonably acceptable to the Holders.
The Indemnifying Persons shall not be liable for any
settlement of any proceeding effected without its prior written consent
(which consent shall not be unreasonably withheld or delayed), but if
settled with such consent or if there be a final non-appealable
judgment for the plaintiff for which the Indemnified Person is entitled
to indemnification pursuant to this Agreement, each of the Indemnifying
Persons agrees to indemnify and hold harmless each Indemnified Person
from and against any loss or liability by reason of such settlement or
judgment. No Indemnifying Person shall, without the prior written
consent of the Indemnified Persons (which consent shall not be
unreasonably withheld or delayed), effect any settlement or compromise
of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party, or indemnity could
have been sought hereunder by such Indemnified Person, unless such
settlement (A) includes an unconditional written release of such
Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the
subject matter of such proceeding and (B) does not include any
statement as to an admission of fault, culpability or failure to act by
or on behalf of such Indemnified Person.
(d) If the indemnification provided for in the first and
second paragraphs of this Section 7 is for any reason unavailable to,
or insufficient to hold harmless, an Indemnified Person in respect of
any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraphs, in lieu of indemnifying
such Indemnified Person thereunder and in order to provide for just and
equitable contribution, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Person or Persons on the one hand
and the Indemnified Person or Persons on the other in connection with
the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other rele-
-25-
vant equitable considerations. The relative fault of the parties 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 on the one hand or such Participant or such
other Indemnified Person, as the case may be, on the other, the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, and any
other equitable considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Participants were treated as one entity for
such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages, judgments,
liabilities and expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses actually incurred
by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 7, in no event shall a Participant be required to
contribute any amount in excess of the amount by which proceeds
received by such Participant from sales of Registrable Notes or
Exchange Notes, as the case may be, exceeds the amount of any damages
that such Participant has otherwise been required to pay or has paid by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or
contribution under this Section 7 shall be paid by the Indemnifying
Person to the Indemnified Person as such losses, claims, damages,
liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section 7 and the representations and
warranties of the Issuers set forth in this Agreement shall remain
operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Holder or any person who
controls a Holder, the Issuer, its directors, officers, employees or
agents or any person controlling an Issuer, and (ii) any termination of
this Agreement.
(g) The indemnity and contribution agreements contained in
this Section 7 will be in addition to any liability which the
Indemnifying Persons may otherwise have to the Indemnified Persons
referred to above.
-26-
8. Rules 144 and 144A
Each of the Issuers covenants and agrees that it will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder in a timely manner
in accordance with the requirements of the Securities Act and the Exchange Act
and, if at any time such Issuer is not required to file such reports, such
Issuer will, upon the request of any Holder or beneficial owner of Registrable
Notes, make available such information necessary to permit sales pursuant to
Rule 144A under the Securities Act. Each of the Issuers further covenants and
agrees, for so long as any Registrable Notes remain outstanding that it will
take such further action as any Holder of Registrable Notes may reasonably
request, all to the extent required from time to time to enable such holder to
sell Registrable Notes without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144(k) and Rule 144A under the
Securities Act, as such Rules may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the SEC.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes included in such offering and shall be reasonably acceptable
to the Issuer.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. The Issuers have not, as of
the date hereof, and the Issuers shall not, after the date of this
Agreement, enter into any agreement with respect to any of its
securities that is inconsistent with the rights granted to the Holders
of Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not
in any way conflict with and are not inconsistent with the rights
granted to the holders of the Issuers' other issued and outstanding
securities under any such agreements. The Issuers will not enter into
any agreement with respect to any of their securities which will
-27-
grant to any Person piggy-back registration rights with respect to any
Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuers shall
not, directly or indirectly, take any action with respect to the
Registrable Notes as a class that would adversely affect the ability of
the Holders of Registrable Notes to include such Registrable Notes in a
registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, otherwise
than with the prior written consent of (I) the Company and (II)(A) the
Holders of not less than a majority in aggregate principal amount of
the then outstanding Registrable Notes and (B) in circumstances that
would adversely affect the Participating Broker-Dealers, the
Participating Broker-Dealers holding not less than a majority in
aggregate principal amount of the Exchange Notes held by all
Participating Broker-Dealers; provided, however, that Section 7 and
this Section 10(c) may not be amended, modified or supplemented without
the prior written consent of each Holder and each Participating
Broker-Dealer (including any person who was a Holder or Participating
Broker-Dealer of Registrable Notes or Exchange Notes, as the case may
be, disposed of pursuant to any Registration Statement) affected by any
such amendment, modification or supplement. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof
with respect to a matter that relates exclusively to the rights of
Holders of Registrable Notes whose securities are being sold pursuant
to a Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of
Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold pursuant
to such Registration Statement.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee)
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or
facsimile:
(i) if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of
such Holder or Participating Broker-Dealer, as the case may
be, set forth on the records of the registrar under the
Indenture.
-28-
(ii) if to the Issuers, at the address as follows:
▇/▇ ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, ▇.▇.▇.
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if
mailed; one business day after being timely delivered to a next-day air
courier; and when receipt is acknowledged by the addressee, if sent by
facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the
Trustee at the address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties hereto, the Holders and the Participating Broker-Dealers.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
(g) Guarantor Execution. The Company shall cause each of the
Guarantors to execute and deliver this Agreement concurrently with the
Effective Time and the Guarantors shall execute this Agreement in
consideration of, among other things, consummation of the Merger;
provided, however, that all obligations of the Guarantors arising under
this Agreement (including indemnity obligations) shall be as of the
date first written above and all representations and warranties of the
Guarantors herein shall be as of the date first written above. In the
event of a breach by the Company of its obligations under this Section
10(g), the Company agrees that monetary damages would not be adequate
compensation for any loss or damage incurred by such breach and hereby
further agrees that, in the event of an action for specific performance
in respect of such breach, it shall waive the defense that a remedy at
law would be adequate.
-29-
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
(j) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set
forth herein shall remain in full force and effect and shall in no way
be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(k) Securities Held by the Company or Its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the
Company or its affiliates (as such term is defined in Rule 405 under
the Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required
percentage.
(l) Third-Party Beneficiaries. Holders of Registrable Notes
and Participating Broker-Dealers are intended third-party beneficiaries
of this Agreement, and this Agreement may be enforced by such Persons.
(m) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a
final and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and
therein and any and all prior oral or written agreements,
representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the
one hand and the Issuers on the other, or between or among any agents,
representatives, parents, subsidiaries, affili-
-30-
ates, predecessors in interest or successors in interest with respect
to the subject matter hereof and thereof are merged herein and replaced
hereby.
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
THE COMPANY:
ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: President
THE GUARANTORS:
ATC ▇▇▇▇▇▇▇▇ INC., a South
Dakota corporation, as
Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
ATC CONSTRUCTION SERVICES INC.,
a Massachusetts corporation,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ATC ENVIRONMENTAL INC., a
Delaware corporation, as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
-2-
ATC INSYS TECHNOLOGY INC., a
Delaware corporation, as
Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
ATC MANAGEMENT INC., a South
Dakota corporation, as
Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
ATC NEW ENGLAND CORP., a
Delaware corporation, as
Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
BING YEN & ASSOCIATES, INC., a
California corporation, as
Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
ENVIRONMENTAL WARRANTY, INC., a
Connecticut corporation, as
Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
-3-
HYGEIA LABORATORIES INC., a
Delaware corporation, as
Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first
above written.
BT ALEX. ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
Exhibit B
ATC Group Services Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
January 22, 1998
BT Alex. ▇▇▇▇▇ Incorporated
One Bankers Trust Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter agreement (this "Agreement") is being executed and
delivered by ATC Group Services Inc. ("Company") pursuant to the requirements
of, and in order to induce you to enter into and perform, that certain Purchase
Agreement dated as of January 22, 1998 between Acquisition Corp. ("Acquisition")
and BT Alex. ▇▇▇▇▇ Incorporated ("Initial Purchaser"). All terms used herein
which are not otherwise defined herein shall have the meaning provided therefor
in the Purchase Agreement.
1. The Company hereby represents and warrants to and agrees
with the Initial Purchaser that:
(a) the representations and warranties of the Company set
forth in the Merger Agreement are true and correct on the date hereof
and will be true and correct at the Closing Date; provided, that (this
representation (a) shall expire at the Effective Time and provided,
further, that upon the Effective Time, the Initial Purchaser and its
Affiliates waive any cause of action or exercise of right that they may
have had arising from any breach of this representation and
warranty(a).
(b) the representations and warranties of Acquisition (whether
or not made by it on a knowledge basis) set forth in the Purchase
Agreement with respect to the Company and its subsidiaries and related
matters are true and correct on the date hereof and will be true and
correct at the Closing Date (upon the Effective Time, such
representations and warranties shall be deemed to be have been made
without any knowledge basis limitation); and
-2-
(c) neither the Final Memorandum nor any amendment or
supplement thereto as of the date thereof and at all times subsequent
thereto up to the Closing Date contained or contains any untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this clause (c) do not
apply to statements or omissions made in reliance upon and in
conformity with information relating solely to (x) the Initial
Purchaser furnished to Acquisition in writing by the Initial Purchaser
expressly for use in the Final Memorandum or any amendment or
supplement thereto or (y) Acquisition furnished in writing by
Acquisition expressly for use the Final Memorandum or any amendment or
supplement thereto.
(d) The statistical and market-related data included in the
Final Memorandum are based on or derived from sources which the Company
believes to be reliable and accurate.
2. (a) The Company and the Guarantors agree, jointly and
severally, to indemnify and hold harmless the Initial Purchaser and the
affiliates, directors, officers, agents, representatives and employees of the
Initial Purchaser, and each other person, if any, who controls the Initial
Purchaser within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, against any losses, claims, damages or liabilities, joint or
several, to which the Initial Purchaser or any such affiliate, director,
officer, agent, representative, employee or controlling person may become
subject under the Act, the Exchange Act or otherwise, insofar as any such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in (A) any Memorandum or any amendment or
supplement thereto or (B) any application or other document, or any
amendment or supplement thereto, executed by the Company or any
Guarantor or based upon written information furnished by or on behalf
of the Company or any Guarantor filed in any jurisdiction in order to
qualify the Securities under the securities or "Blue Sky" laws thereof
or filed with any securities association or securities exchange (each,
an "Application"); or
-3-
(ii) the omission or alleged omission to state, in any
Memorandum or any amendment or supplement thereto, or any Application,
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; or
(iii) any breach of any representation, warranty or agreement
of the Company or any Guarantor contained in this Agreement,
and will jointly and severally reimburse, as incurred, the Initial Purchaser and
each such affiliate, director, officer, agent, representative and employee and
each such controlling person for any legal or other expenses reasonably incurred
by the Initial Purchaser, such affiliate, director, officer, agent,
representative or employee or such controlling person in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
however, that the Company and the Guarantors will not be liable (i) in any such
case to the extent that any such loss, claim, damage, or liability arises out of
or is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in any Memorandum or any amendment or supplement thereto,
or any Application, in reliance upon and in conformity with written information
furnished to Acquisition by the Initial Purchaser specifically for use therein
or (ii) with respect to the Preliminary Memorandum, to the extent that any such
loss, claim, damage or liability arises solely from the fact that the Initial
Purchaser sold Securities to a person to whom there was not sent or given a copy
of the Final Memorandum (as amended or supplemented) at or prior to the written
confirmation of such sale if Acquisition shall have previously furnished copies
thereof to the Initial Purchaser in accordance with the Purchase Agreement and
the Final Memorandum (as amended or supplemented) would have corrected any such
untrue statement or omission. This indemnity agreement will be in addition to
any liability that the Company and the Guarantors may otherwise have to the
indemnified parties. The Company and the Guarantors shall not be liable under
this subsection (a) for any settlement of any claim or action effected without
their consent, which consent shall not be unreasonably withheld or delayed.
The Initial Purchaser shall not, without the prior written
consent of the Company and the Guarantors, effect any settlement or compromise
of any pending or threatened proceeding in respect of which the Company and the
Guarantors are or
-4-
could have been a party, or indemnity could have been sought hereunder by the
Company and the Guarantors, unless such settlement (A) includes an unconditional
written release of the Company and the Guarantors, in form and substance
reasonably satisfactory to the Company and the Guarantors, from all liability on
claims that are the subject matter of such proceeding and (B) does not include
any statement as to an admission of fault, culpability or failure to act by or
on behalf of the Company or the Guarantors.
(b) The Initial Purchaser agrees to indemnify and hold
harmless the Company and the Guarantors, its respective affiliates, directors,
officers, agents, representatives and employees and each other person, if any,
who controls the Company and the Guarantors within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Company or any Guarantor or any such affiliate,
director, officer, agent, representative, employee or controlling person may
become subject under the Act, 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 (i) any untrue statement or alleged untrue statement of any
material fact contained in any Memorandum or any amendments or supplement
thereto, or any Application or (ii) the omission or the alleged omission to
state therein a material fact required to be stated in any Memorandum or any
amendment or supplement thereto, or any Application, or necessary to make the
statements therein 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 concerning the Initial Purchaser furnished to Acquisition by the
Initial Purchaser specifically for use therein; and, subject to the limitation
set forth immediately preceding this clause, will reimburse, as incurred, any
legal or other expenses reasonably incurred by the Company or any Guarantor or
any such affiliate, director, officer, agent, representative, employee or
controlling person in connection with investigating or defending against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action in respect thereof. This indemnity agreement will be
in addition to any liability that the Initial Purchaser may otherwise have to
the indemnified parties. The Initial Purchaser shall not be liable under this
Section 2 for any settlement of any claim or action effected without its
consent, which consent shall not be unreasonably withheld or delayed.
-5-
The Company and the Guarantors shall not, without the prior
written consent of the Initial Purchaser, effect any settlement or compromise of
any pending or threatened proceeding in respect of which the Initial Purchaser
is or could have been a party, or indemnity could have been sought hereunder by
the Initial Purchaser, unless such settlement (A) includes an unconditional
written release of the Initial Purchaser, in form and substance reasonably
satisfactory to the Initial Purchaser, from all liability on claims that are the
subject matter of such proceeding and (B) does not include any statement as to
an admission of fault, culpability or failure to act by or on behalf of the
Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this
Section 2 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 2, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 2, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under subsection (a) or (b) above unless
and to the extent 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 subsections (a) and (b)
above. 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; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (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 receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
-6-
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 2 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Initial Purchaser in the case
subsection (a) of this Section 2 or the Company in the case of subsection (b) of
this Section 2, representing the indemnified parties under such subsection (a)
or subsection (b), as the case may be, who are parties to such action or
actions) or (ii) the indemnifying party has authorized in writing the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the prior
written consent of the indemnifying party (which consent shall not be
unreasonably withheld), unless such indemnified party waived in writing its
rights under this Section 2, in which case the indemnified party may effect such
a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided
for in the preceding subsections of this Section 2 is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative
-7-
benefits but also the relative fault of the indemnifying party or parties on the
one hand and the indemnified party on the other in connection with the
statements or omissions or alleged statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof). The
relative benefits received by the Company and the Guarantors on the one hand and
the Initial Purchaser on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (before deducting expenses) received by
Acquisition bear to the total discounts and commissions received by the Initial
Purchaser. The relative fault of the parties shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Guarantors on the one
hand, or the Initial Purchaser on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company, the Guarantors and
the Initial Purchaser agree that it would not be just and equitable if the
amount of such contribution were determined by pro rata or per capita allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to in the first sentence of this subsection
(d). Notwithstanding any other provision of this subsection (d), the Initial
Purchaser shall not be obligated to make contributions hereunder that in the
aggregate, together with contributions made by it under the Purchase Agreement,
exceed the total discounts, commissions and other compensation received by the
Initial Purchaser under the Purchase Agreement, less the aggregate amount of any
damages that the Initial Purchaser has otherwise been required to pay by reason
of the untrue or alleged untrue statements or the omissions or alleged omissions
to state a material fact, and 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 subsection (d), each affiliate,
director, officer, agent, representative and employee of the Initial Purchaser
and each person, if any, who controls the Initial Purchaser within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Initial Purchaser, and each affiliate, director,
officer, agent, representative and employee of the Company and the Guarantors
and each person, if any, who controls the Company or a Guarantor within the
meaning of Section 15 of
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the Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company and the Guarantors.
3. The representations, warranties, agreements, covenants,
indemnities and other statements of the Company and the Guarantors and its
officers set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement shall remain in full force and effect
regardless of (i) any investigation made by or on behalf of the Initial
Purchaser or any controlling person of the Initial Purchaser, (ii) delivery of
and payment for the Securities and (iii) any termination or cancellation of the
Purchase Agreement.
4. This Agreement may not be amended, modified or supplemented
except by a writing specifically referring hereto which is signed by both the
Initial Purchaser and the Company.
5. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
6. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
7. All communications hereunder shall be in writing and, if
sent to the Initial Purchaser, shall be mailed or delivered or telecopied and
confirmed in writing to BT Alex. ▇▇▇▇▇ Incorporated, One Bankers Trust Plaza,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Finance
Department, and if sent to the Company or any Guarantor, shall be mailed,
delivered or telecopied and confirmed in writing to the Company or such
Guarantor at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: President.
8. This Agreement shall inure to the benefit of and be binding
upon the Initial Purchaser, the Company, the Guarantors and their respective
successors, assigns and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of the Initial Purchaser, the Company, the Guarantors and their
respective successors, assigns and legal representatives and
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for the benefit of no other person except that (i) the indemnities of the
Company and the Guarantors contained in this Agreement shall also be for the
benefit of the affiliates, directors, officers, agents, representatives and
employees of the Initial Purchaser and any person or persons who control the
Initial Purchaser within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act and (ii) the indemnities of the Initial Purchaser contained in
this Agreement shall also be for the benefit of the affiliates, directors,
officers, agents, representatives and employees of the Company and the Guarantor
and any person or persons who control the Company within the meaning of Section
15 of the Act of Section 20 of the Exchange Act. No purchaser of any of the
Securities from the Initial Purchaser will be deemed a successor because of such
purchase.
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement among the
Company and the Initial Purchaser.
Very truly yours,
THE COMPANY:
ATC GROUP SERVICES INC.,
on behalf of itself and
each of the Guarantors
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Accepted and agreed to
as of the date first
above written.
THE INITIAL PURCHASER:
BT ALEX. ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director