EXHIBIT 1.1
Rayovac Corporation,
ROV Holding, Inc.
and
Rovcal, Inc.
$700,000,000
7 3/8% Senior Subordinated Notes due 2015
PURCHASE AGREEMENT
dated January 21, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
Citigroup Global Markets Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
ABN AMRO Incorporated
Table of Contents
SECTION 1. Representations and Warranties.........................................................2
(a) No Registration Required....................................................................3
(b) No Integration of Offerings or General Solicitation.........................................3
(c) Eligibility for Resale under Rule 144A......................................................3
(d) The Offering Memorandum.....................................................................3
(e) Incorporated Documents......................................................................3
(f) The Purchase Agreement......................................................................4
(g) The Registration Rights Agreement...........................................................4
(h) The DTC Agreement...........................................................................4
(i) Authorization of the Securities and the Exchange Securities.................................4
(j) Authorization of the Indenture..............................................................5
(k) Description of the Securities, Exchange Securities and the Indenture........................5
(l) No Material Adverse Change..................................................................5
(m) Independent Accountants.....................................................................5
(n) Preparation of the Financial Statements.....................................................6
(o) Incorporation and Good Standing of the Company and its Subsidiaries.........................6
(p) Capitalization and Other Capital Stock Matters..............................................6
(q) Non-Contravention of Existing Instruments; No Further Authorizations
or Approvals Required.......................................................................7
(r) No Material Actions or Proceedings..........................................................7
(s) Intellectual Property Rights................................................................7
(t) All Necessary Permits, etc..................................................................8
(u) Title to Properties.........................................................................8
(v) Tax Law Compliance..........................................................................8
(w) Company Not an "Investment Company".........................................................8
(x) Insurance...................................................................................8
(y) No Price Stabilization or Manipulation......................................................9
(z) Solvency....................................................................................9
(aa) No Unlawful Contributions or Other Payments.................................................9
(bb) Company's Accounting System.................................................................9
(cc) Compliance with Environmental Laws..........................................................9
(dd) Periodic Review of Costs of Environmental Compliance.......................................10
(ee) ERISA Compliance...........................................................................10
(ff) No Default in Senior Indebtedness..........................................................10
(gg) New Senior Credit Agreement................................................................10
(hh) Regulation S...............................................................................11
SECTION 2. Purchase, Sale and Delivery of the Securities.........................................11
(a) The Securities.............................................................................11
(b) The Closing Date...........................................................................11
(c) Delivery of the Securities.................................................................11
(d) Delivery of Offering Memorandum to the Initial Purchasers..................................12
(e) Initial Purchasers as Qualified Institutional Buyers.......................................12
SECTION 3. Additional Covenants..................................................................12
(a) Initial Purchasers' Review of Proposed Amendments and Supplements..........................12
(b) Amendments and Supplements to the Offering Memorandum and Other
Securities Act Matters.....................................................................12
(c) Copies of the Offering Memorandum..........................................................13
(d) Blue Sky Compliance........................................................................13
(e) Use of Proceeds............................................................................13
(f) The Depositary.............................................................................13
(g) Additional Issuer Information..............................................................13
(h) Agreement Not to Offer or Sell Additional Securities.......................................13
(i) Future Reports to the Initial Purchasers...................................................13
(j) No Integration.............................................................................14
(k) Legended Securities........................................................................14
(l) PORTAL.....................................................................................14
SECTION 4. Payment of Expenses...................................................................14
SECTION 5. Conditions of the Obligations of the Initial Purchasers...............................15
(a) Accountants' Comfort Letter................................................................15
(b) No Material Adverse Change or Ratings Agency Change........................................15
(c) Opinion of Counsel for the Company and the Guarantors......................................15
(d) Opinion of Counsel for the Initial Purchasers..............................................15
(e) Opinions of Counsel for Certain of the Guarantors..........................................15
(f) Officers' Certificate......................................................................15
(g) Bring-down Comfort Letter..................................................................16
(h) PORTAL Listing.............................................................................16
(i) Registration Rights Agreement..............................................................16
(j) Concurrent Transactions....................................................................16
(k) Notice of Redemption.......................................................................16
(l) Notice of Termination......................................................................16
(m) Additional Documents.......................................................................16
SECTION 6. Reimbursement of Initial Purchasers' Expenses.........................................17
SECTION 7. Offer, Sale and Resale Procedures.....................................................17
SECTION 8. Indemnification.......................................................................18
(a) Indemnification of the Initial Purchasers..................................................18
(b) Indemnification of the Company, the Guarantors, their Directors and Officers...............19
(c) Notifications and Other Indemnification Procedures.........................................19
(d) Settlements................................................................................20
SECTION 9. Contribution..........................................................................20
SECTION 10. Termination of this Agreement.........................................................21
SECTION 11. Representations and Indemnities to Survive Delivery...................................22
SECTION 12. Notices...............................................................................22
SECTION 13. Successors............................................................................23
SECTION 14. Partial Unenforceability..............................................................23
SECTION 15. Governing Law Provisions..............................................................23
SECTION 16. Default of One or More of the Several Initial Purchasers..............................23
SECTION 17. General Provisions....................................................................24
SCHEDULES, EXHIBITS AND ANNEX
SCHEDULE A - Initial Purchasers
SCHEDULE B - Subsidiaries
EXHIBIT A-1 - Form of Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
EXHIBIT A-2 - Form of Tax Opinion of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
EXHIBIT A-3 - Form of Opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇
EXHIBIT A-4 - Form of Opinion of Counsel For Certain of The Guarantors
ANNEX I - Resale Procedures
Purchase Agreement
January 21, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
ABN AMRO INCORPORATED
As Initial Purchasers
c/o BANC OF AMERICA SECURITIES LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Introductory. Rayovac Corporation, a Wisconsin corporation
(the "Company"), proposes to issue and sell to the several Initial Purchasers
named in Schedule A (the "Initial Purchasers"), acting severally and not
jointly, the respective amounts set forth in such Schedule A of $700,000,000
aggregate principal amount of the Company's 7 3/8% Senior Subordinated Notes
due 2015 (the "Notes"). Banc of America Securities LLC, Citigroup Global Markets
Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ABN AMRO
Incorporated have agreed to act as the several Initial Purchasers in
connection with the offering and sale of the Notes.
The Notes will be issued pursuant to an indenture, to be
dated as of February 7, 2005 (the "Indenture"), among the Company, the
guarantors named in the Indenture (each a "Guarantor") and together the
"Guarantors", including without limitation, ROV Holding, Inc. and Rovcal, Inc.
(the "Rayovac Guarantors"), and U.S. Bank Trust National Association, as
trustee (the "Trustee"). Notes issued in book-entry form will be issued in the
name of Cede & Co., as nominee of The Depository Trust Company (the
"Depositary") pursuant to a DTC Agreement, to be dated as of the Closing Date
(as defined in Section 2) (the "DTC Agreement"), among the Company, the
Trustee and the Depositary.
The holders of the Notes will be entitled to the benefits of
a registration rights agreement, to be dated as of February 7, 2005 (the
"Registration Rights Agreement"), among the Company, the Guarantors and the
Initial Purchasers, pursuant to which each of the Company and the Guarantors
will agree to file, within 120 days of the Closing Date, a registration
statement with the Commission registering the Exchange Securities (as defined
below) under the Securities Act (as defined below).
The payment of principal, of premium and Liquidated Damages
(as defined in the Indenture), if any, and interest on the Notes and the
Exchange Notes (as defined below) will be fully and unconditionally guaranteed
on a senior subordinated basis, jointly and severally by (i) the Guarantors
and (ii) any subsidiary of the Company formed or acquired after the Closing
Date that executes an additional guarantee in accordance with the terms of the
Indenture, and their respective successors and assigns, pursuant to their
guarantees (the "Guarantees"). The Notes and the Guarantees attached thereto
are herein collectively referred to as the "Securities"; and the Exchange
Notes and the Guarantees attached thereto are herein collectively referred to
as the "Exchange Securities".
The Notes are being issued as part of the financing of the
Company's acquisition (the "Acquisition") of all of the outstanding equity
interests of United Industries Corporation, a Delaware corporation ("United").
In connection with the Acquisition, the Company: (i) will retire the
indebtedness under the credit agreement of United dated as of January 20,
1999, as amended (the "United Credit Agreement") and the credit agreement of
the Company dated October 1, 2002, as amended (the "Rayovac Credit
Agreement"), and will enter into a new senior credit agreement (the "New
Senior Credit Agreement") consisting of a total of $1.03 billion in senior
secured credit facilities, made up of aggregate term loan facilities of $730
million and a revolving credit facility of $300 million and (ii) has commenced
a tender offer (the "Tender Offer") to acquire United's existing 9 7/8% Series
D Senior Subordinated Notes due 2009 (the "Series D Notes"). The Acquisition,
the entering into of the New Senior Credit Agreement and the retirement of the
United Credit Agreement and the Rayovac Credit Agreement, and the consummation
of the Tender Offer are hereinafter collectively referred to as the
"Concurrent Transactions." References in this Agreement to subsidiaries of the
Company shall be deemed to include United and each of its subsidiaries.
The Company understands that the Initial Purchasers propose
to make an offering of the Securities on the terms and in the manner set forth
herein and in the Offering Memorandum (as defined below) and agrees that the
Initial Purchasers may resell, subject to the conditions set forth herein, all
or a portion of the Securities to purchasers (the "Subsequent Purchasers") at
any time after the date of this Agreement. The Securities are to be offered
and sold to or through the Initial Purchasers without being registered with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933 (as amended, the "Securities Act," which term, as used herein,
includes the rules and regulations of the Commission promulgated thereunder),
in reliance upon exemptions therefrom. The terms of the Securities and the
Indenture will require that investors that acquire Securities expressly agree
that Securities may only be resold or otherwise transferred, after the date
hereof, if such Securities are registered for sale under the Securities Act or
if an exemption from the registration requirements of the Securities Act is
available (including the exemptions afforded by Rule 144A under the Securities
Act ("Rule 144A") or Regulation S under the Securities Act ("Regulation S")
thereunder).
The Company has prepared and delivered to each Initial
Purchaser copies of a Preliminary Offering Memorandum, dated January 14, 2005
(the "Preliminary Offering Memorandum"), and has prepared and will deliver to
each Initial Purchaser, copies of the Offering Memorandum, dated January 21,
2005 describing the terms of the Securities, each for use by such Initial
Purchaser in connection with its solicitation of offers to purchase the
Securities. As used herein, the "Offering Memorandum" shall mean, with respect
to any date or time referred to in this Agreement, the Company's Offering
Memorandum, dated January 21, 2005, including amendments or supplements
thereto and any exhibits thereto, and the Incorporated Documents (as defined
by Section 1 below) in the most recent form that has been prepared and
delivered by the Company to the Initial Purchasers in connection with their
solicitation of offers to purchase Securities. Further, any reference to the
Preliminary Offering Memorandum or the Offering Memorandum shall be deemed to
refer to and include any Additional Issuer Information (as defined in Section
3) furnished by the Company prior to the completion of the distribution of the
Securities.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated"
in the Offering Memorandum (or other references of like import) shall be
deemed to mean and include all such financial statements and schedules and
other information which are incorporated by reference in the Offering
Memorandum; and all references in this Agreement to amendments or supplements
to the Offering Memorandum shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (as amended, the
"Exchange Act," which term, as used herein, includes the rules and regulations
of the Commission promulgated thereunder) which is incorporated or deemed to
be incorporated by reference in the Offering Memorandum.
Each of the Company and the Rayovac Guarantors hereby
confirms its agreements with the Initial Purchasers as follows:
SECTION 1. Representations and Warranties. Each of the Company and the Rayovac
Guarantors, jointly and severally, hereby represents, warrants and covenants,
to each Initial Purchaser as follows:
(a) No Registration Required. Assuming the accuracy of the
representations and warranties of the Initial Purchasers set forth
in Section 2 hereof and compliance by the Initial Purchasers with
the procedures set forth in Section 7 hereof, it is not necessary in
connection with the offer, sale and delivery of the Securities to
the Initial Purchasers and to each Subsequent Purchaser in the
manner contemplated by this Agreement and the Offering Memorandum to
register the Securities under the Securities Act or, until such time
as the Exchange Securities are issued pursuant to an effective
registration statement, to qualify the Indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act," which
term, as used herein, includes the rules and regulations of the
Commission promulgated thereunder).
(b) No Integration of Offerings or General Solicitation. The Company
and the Guarantors have not, directly or indirectly, solicited any
offer to buy or offered to sell, and will not, directly or
indirectly, solicit any offer to buy or offer to sell, in the United
States or to any United States citizen or resident, any security
which is or would be integrated with the sale of the Securities in a
manner that would require the Securities to be registered under the
Securities Act. None of the Company, the Guarantors, its respective
affiliates (as such term is defined in Rule 501 under the Securities
Act) (each, an "Affiliate"), or any person acting on its or any of
their behalf (other than the Initial Purchasers, as to whom the
Company and the Rayovac Guarantors make no representation or
warranty) has engaged or will engage, in connection with the
offering of the Securities, in any form of general solicitation or
general advertising within the meaning of Rule 502 under the
Securities Act. With respect to those Securities sold in reliance
upon Regulation S: (i) none of the Company, the Guarantors, its
Affiliates, or any person acting on its or their behalf (other than
the Initial Purchasers, as to whom the Company and the Rayovac
Guarantors make no representation or warranty) has engaged or will
engage in any directed selling efforts within the meaning of
Regulation S; and (ii) each of the Company, the Guarantors, and its
Affiliates and any person acting on its or their behalf (other than
the Initial Purchasers, as to whom the Company and the Rayovac
Guarantors makes no representation or warranty) has complied and
will comply with the offering restrictions set forth in Regulation
S.
(c) Eligibility for Resale under Rule 144A. The Securities are
eligible for resale pursuant and subject to Rule 144A and will not
be, at the Closing Date, of the same class as securities listed on a
national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated interdealer quotation
system.
(d) The Offering Memorandum. The Offering Memorandum as of the date
hereof does not, and at the Closing Date will not, include 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;
provided that this representation, warranty and agreement shall not
apply to any statements in or omissions from the Offering Memorandum
made in reliance upon and in conformity with information furnished
to the Company in writing by any Initial Purchaser through Banc of
America Securities LLC expressly for use in the Offering Memorandum.
Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, contains all the information specified
in, and meets the requirements of, Rule 144A. Neither the Company
nor any Guarantor has distributed or will distribute, prior to the
later of the Closing Date and the completion of the Initial
Purchasers' distribution of the Securities, any offering material in
connection with the offering and sale of the Securities other than
the Preliminary Offering Memorandum or the Offering Memorandum.
(e) Incorporated Documents. The Offering Memorandum as delivered
from time to time shall incorporate by reference the most recent
Annual Report of the Company on Form 10-K filed with the Commission
and each Quarterly Report of the Company on Form 10-Q, and each
Current Report of the Company on Form 8-K, filed with the Commission
since the end of the fiscal year to which such Annual Report
relates. The documents incorporated or deemed to be incorporated by
reference in the Offering Memorandum at the time they were or
hereafter are filed with the Commission (collectively, the
"Incorporated Documents") complied, or by subsequent amendment
complied, and will comply in all material respects with the
requirements of the Exchange Act. It is understood that certain
unaudited financial statements of Nu-Gro Corporation included in the
Offering Memorandum have not been subject to an independent
accountants review in accordance with the Statement on Auditing
Standards No. 100, Interim Financial Information.
(f) The Purchase Agreement. This Agreement has been duly authorized,
executed and delivered by each of the Company and the Rayovac
Guarantors.
(g) The Registration Rights Agreement. At the Closing Date, the
Registration Rights Agreement will be duly authorized, executed and
delivered by, and will be a valid and binding agreement of, each of
the Company and the Guarantors, enforceable in accordance with its
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors
or by general equitable principles (regardless of whether
enforceability is considered in a proceeding at law or in equity)
and except as rights to indemnification under the Registration
Rights Agreement may be limited by applicable law. Pursuant to the
Registration Rights Agreement, the Company will agree to file with
the Commission, under the circumstances set forth therein, (i) a
registration statement under the Securities Act relating to another
series of debt securities of the Company with terms substantially
identical to the Notes (the "Exchange Notes") to be offered in
exchange for the Notes (the "Exchange Offer"); and (ii) to the
extent required by the Registration Rights Agreement, a shelf
registration statement pursuant to Rule 415 of the Securities Act
relating to the resale by certain holders of the Notes, and in each
case, to use its commercially reasonable efforts to cause such
registration statements to be declared effective.
(h) The DTC Agreement. On the Closing Date, the DTC Agreement will
be duly authorized, executed and delivered by, and will be a valid
and binding agreement of, the Company, enforceable in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors
or by general equitable principles (regardless of whether
enforceability is considered in a proceeding at law or in equity).
(i) Authorization of the Securities and the Exchange Securities. On
the Closing Date, the Notes to be purchased by the Initial
Purchasers from the Company will be in the form contemplated by the
Indenture, will have been duly authorized for issuance and sale
pursuant to this Agreement and the Indenture and will have been duly
executed by the Company and, when authenticated in the manner
provided for in the Indenture and delivered against payment of the
purchase price therefor, will constitute valid and binding
agreements of the Company, enforceable in accordance with their
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors
or by general equitable principles (regardless of whether
enforceability is considered in a proceeding at law or in equity)
and will be entitled to the benefits of the Indenture. The Exchange
Notes have been duly and validly authorized for issuance by the
Company, and when issued and authenticated in accordance with the
terms of the Indenture, the Registration Rights Agreement and the
Exchange Offer, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, or similar laws
relating to or affecting enforcement of the rights and remedies of
creditors or by general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity)
and will be entitled to the benefits of the Indenture. On the
Closing Date, the Guarantees of the Notes and the Guarantees of the
Exchange Notes will be in the respective forms contemplated by the
Indenture and will have been duly authorized pursuant to this
Agreement and the Indenture. At the Closing Date, the Guarantees of
the Notes will have been duly executed by each of the Guarantors
and, when the Notes have been authenticated in the manner provided
for in the Indenture and delivered against payment of the purchase
price therefor, the Guarantees of the Notes will constitute valid
and binding agreements of the Guarantors, enforceable in accordance
with their terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of
creditors or by general equitable principles (regardless of whether
enforceability is considered in a proceeding at law or in equity)
and will be entitled to the benefits of the Indenture. At the
closing date of the Exchange Offer, the Guarantees of the Exchange
Notes will have been duly executed by each of the Guarantors and,
when the Exchange Notes have been authenticated in the manner
provided for in the Indenture and delivered against receipt of the
Notes surrendered in exchange therefor, the Guarantees of the
Exchange Notes will constitute valid and binding agreements of the
Guarantors, enforceable in accordance with their terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general
equitable principles (regardless of whether enforceability is
considered in a proceeding at law or in equity) and will be entitled
to the benefits of the Indenture.
(j) Authorization of the Indenture. At the Closing Date, the
Indenture will have been duly authorized by each of the Company and
the Guarantors, and will have been duly executed and delivered by
each of the Company and the Guarantors, and when executed and
delivered by the Trustee, will constitute a valid and binding
agreement of each of the Company and the Guarantors, enforceable
against each of the Company and the Guarantors in accordance with
its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors
or by general equitable principles (regardless of whether
enforceability is considered in a proceeding at law or in equity).
(k) Description of the Securities, Exchange Securities and the
Indenture. On the Closing Date, the Securities and the Indenture
will conform in all material respects to the respective statements
relating thereto contained in the Offering Memorandum.
(l) No Material Adverse Change. Except as otherwise disclosed in the
Offering Memorandum, subsequent to the respective dates as of which
information is given in the Offering Memorandum: (i) there has been
no material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations, whether or
not arising from transactions in the ordinary course of business, of
the Company and its subsidiaries, considered as one entity (any such
change is called a "Material Adverse Change"); (ii) the Company and
its subsidiaries, considered as one entity, have not incurred any
material liability or obligation, indirect, direct or contingent,
not in the ordinary course of business nor entered into any material
transaction or agreement not in the ordinary course of business; and
(iii) there has been no dividend or distribution of any kind
declared, paid or made by the Company or, except for dividends paid
to the Company or other subsidiaries, any of its subsidiaries on any
class of capital stock or repurchase or redemption by the Company or
any of its subsidiaries of any class of capital stock.
(m) Independent Accountants. Each of (i) KPMG LLP, who has expressed
its opinion with respect to the financial statements of the Company
(the "Company Financial Statements"), (ii) PricewaterhouseCoopers
LLP, who has expressed its opinion with respect to the financial
statements of each of United (the "United Financial Statements") and
United Pet Group Inc. (the "UPG Financial Statements"), (iii)
PricewaterhouseCoopers, Auditores Independentes, who has expressed
its opinion with respect to the financial statements of Microlite
S.A. (the "Microlite Financial Statements"), and (iii) Ernst & Young
LLP who has expressed its opinion with respect to the financial
statements of Nu-Gro Corporation (the "Nu-Gro Financial
Statements"), (which references to financial statements as used in
this Agreement include the related notes thereto), and which
financial statements and supporting schedules included in the
Offering Memorandum, and in the case of the Company Financial
Statements and the United Financial Statements filed with the
Commission, are independent public or certified public accountants
within the meaning of Regulation S-X under the Securities Act.
(n) Preparation of the Financial Statements. The (i) Company
Financial Statements, (ii) United Financial Statements, (iii) UPG
Financial Statements, (iv) Microlite Financial Statements and (v)
Nu-Gro Financial Statements, in each case included in the Offering
Memorandum present fairly the consolidated financial position of (i)
the Company and its subsidiaries (excluding United and its
subsidiaries), (ii) United and its subsidiaries, (iii) United Pet
Group Inc., (iv) Microlite S.A., and (v) Nu-Gro Corporation,
respectively, as of and at the dates indicated and the results of
their operations and cash flows for the periods specified. The (i)
Company Financial Statements, (ii) United Financial Statements,
(iii) UPG Financial Statements, (iv) Microlite Financial Statements,
and (v) Nu-Gro Financial Statements have been prepared in conformity
with generally accepted accounting principles as applied in the
United States, applied on a consistent basis throughout the periods
involved, except as may be expressly stated in the related notes
thereto. The financial data set forth in the Offering Memorandum
under the captions "Summary--Summary Financial Data--Rayovac,"
"Summary--Summary Financial Data--United," "Selected Historical
Financial Data--Rayovac" and "Selected Historical Financial
Data--United" fairly present the information set forth therein on a
basis consistent with that of the audited financial statements
contained in the Offering Memorandum. The unaudited pro forma
condensed consolidated financial data of (i) the Company and its
subsidiaries and the related notes thereto included under the
caption "Summary--Summary Unaudited Pro Forma Condensed Consolidated
Financial Data," "Unaudited Pro Forma Condensed Consolidated
Financial Data" and elsewhere in the Offering Memorandum and (ii)
United and its subsidiaries and the related notes thereto included
under the caption "Summary Financial Data - United" and elsewhere in
the Offering Memorandum, present fairly the information contained
therein, have been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma financial statements
and have been properly presented on the bases described therein, and
the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein, except that
certain per share financial information has not been provided.
(o) Incorporation and Good Standing of the Company and its
Subsidiaries. Each of the Company and its subsidiaries has been duly
incorporated or otherwise formed and is validly existing as a
corporation, limited liability company, partnership or other legal
entity in good standing under the laws of the jurisdiction of its
incorporation or formation and has power and authority to own, lease
and operate its properties and to conduct its business as described
in the Offering Memorandum. Each of the Company and each subsidiary
is duly qualified to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the
aggregate, result in a Material Adverse Change. All of the issued
and outstanding capital stock of each subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable and
(except for any directors' qualifying shares and except for Varta
Consumer Batteries GmbH & Co. KgaA, Ningbo Baowang Battery Company,
Ltd., Remington Licensing Corporation, Microlite S.A., and The
Nu-Spec Corporation) is owned or will be owned as of the Closing
Date by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance
or claim. The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than
the subsidiaries listed in Schedule B hereto.
(p) Capitalization and Other Capital Stock Matters. All of the
outstanding shares of the Company's Common Stock have been duly
authorized and validly issued, are fully paid and nonassessable and
have been issued in compliance with federal and state securities
laws. None of the outstanding shares of the Company's Common Stock
were issued in violation of any preemptive rights, rights of first
refusal or other similar rights to subscribe for or purchase
securities of the Company. There are no authorized or outstanding
options, warrants, preemptive rights, rights of first refusal or
other rights to purchase, or equity or debt securities convertible
into or exchangeable or exercisable for, any capital stock of the
Company or any of its subsidiaries other than those accurately
described in the Offering Memorandum.
(q) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor any of
its subsidiaries (i) is in violation of its charter, by-laws or
similar organizational documents or (ii) is in default (or, with the
giving of notice or lapse of time, would be in default) ("Default")
under any indenture, mortgage, loan or credit agreement, note,
contract, franchise, lease or other instrument to which the Company
or any of its subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject (each, an "Existing
Instrument"), except for such Defaults as would not, individually or
in the aggregate, result in a Material Adverse Change. The Company's
and the Rayovac Guarantors' execution, delivery and performance of
this Agreement, and the Company's and the Guarantors' execution,
delivery and performance of the Registration Rights Agreement, the
DTC Agreement and the Indenture, as applicable, and the issuance and
delivery of the Securities or the Exchange Securities, and the
consummation of the transactions contemplated hereby and thereby (i)
will not result in any violation of the provisions of the charter or
by-laws of the Company or any subsidiary, (ii) will not conflict
with or constitute a breach of, or Default or a Debt Repayment
Triggering Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its subsidiaries pursuant to, or
require the consent of any other party to, any Existing Instrument,
except for such conflicts, breaches, Defaults, liens, charges or
encumbrances as would not, individually or in the aggregate, result
in a Material Adverse Change and (iii) will not result in any
violation of any law, administrative regulation or administrative or
court decree applicable to the Company or any subsidiary. No
consent, approval, authorization or other order of, or registration
or filing with, any court or other governmental or regulatory
authority or agency, is required for the Company's and the Rayovac
Guarantors' execution, delivery and performance of this Agreement,
and the Company's and the Guarantors' execution, delivery and
performance of the Registration Rights Agreement, the DTC Agreement,
the Indenture, as applicable, or the issuance and delivery of the
Securities or the Exchange Securities, or consummation of the
transactions contemplated hereby and thereby, except such as have
been obtained or made by the Company or the Guarantors and are in
full force and effect under the Securities Act, applicable state
securities or blue sky laws and except such as may be required by
federal and state securities laws with respect to the Company's and
the Guarantors' obligations under the Registration Rights Agreement.
As used herein, a "Debt Repayment Triggering Event" means any event
or condition which gives, or with the giving of notice or lapse of
time would give, the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any of its
subsidiaries.
(r) No Material Actions or Proceedings. Except as set forth or
contemplated in the Offering Memorandum, there are no legal or
governmental actions, suits or proceedings pending or, to each of
the Company's and the Rayovac Guarantors' knowledge: (i) threatened
against or affecting the Company or any of its subsidiaries; or (ii)
which have as the subject thereof any property owned or leased by,
the Company or any of its subsidiaries, where in any such case there
is a reasonable possibility that such action, suit or proceeding
will be determined adversely to the Company or such subsidiary and
any such action, suit or proceeding, if so determined adversely,
would reasonably be expected to result in a Material Adverse Change
or adversely affect the consummation of the transactions
contemplated by this Agreement. No material labor dispute with the
employees of the Company or any of its subsidiaries or to each of
the Company's and the Rayovac Guarantor's knowledge, with the
employees of any principal supplier of the Company or any of its
subsidiaries, exists or, to each of the Company's and the Rayovac
Guarantors' knowledge, is threatened or imminent.
(s) Intellectual Property Rights. Except as otherwise disclosed in
the Offering Memorandum, the Company and its subsidiaries own or
possess sufficient trademarks, trade names, patent rights,
copyrights, licenses, approvals, trade secrets and other similar
rights (collectively, "Intellectual Property Rights") reasonably
necessary to conduct their businesses as now conducted; and the
expected expiration of any of such Intellectual Property Rights is
not reasonably expected to result in a Material Adverse Change.
Neither the Company nor any of its subsidiaries has received any
notice of infringement or conflict with asserted Intellectual
Property Rights of others, which infringement or conflict, if the
subject of an unfavorable decision, would result in a Material
Adverse Change.
(t) All Necessary Permits, etc. The Company and each subsidiary
possess such valid and current certificates, authorizations or
permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct their respective
businesses, and neither the Company nor any subsidiary has received
any written notice of proceedings relating to the revocation or
modification of, or non-compliance with, any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result
in a Material Adverse Change.
(u) Title to Properties. The Company and each of its subsidiaries
has good and marketable title to all the properties and assets
reflected as owned in the financial statements referred to in
paragraph (m) above, in each case free and clear of any security
interests, mortgages, liens, encumbrances, equities, claims and
other defects, except such as do not materially and adversely affect
the value of such property and do not materially interfere with the
use made or proposed to be made of such property by the Company or
such subsidiary. The real property, improvements, equipment and
personal property held under lease by the Company or any subsidiary
are held under valid and enforceable leases, with such exceptions as
are not material and do not materially interfere with the use made
or proposed to be made of such real property, improvements,
equipment or personal property by the Company or such subsidiary.
(v) Tax Law Compliance. The Company and its subsidiaries have filed
all necessary federal, state and foreign income and franchise tax
returns or have properly requested extensions thereof, and have paid
all taxes required to be paid by any of them and, if due and
payable, any related or similar assessment, fine or penalty levied
against any of them except as may be being contested in good faith
and by appropriate proceedings, except where the failure to file
such tax returns or pay such taxes, assessments, fines and penalties
individually or in the aggregate would not reasonably be expected to
result in a Material Adverse Change. The Company has made adequate
charges, accruals and reserves in the applicable financial
statements referred to in paragraph (m) above in respect of all
federal, state and foreign income and franchise taxes for all
periods as to which the tax liability of the Company or any of its
subsidiaries has not been finally determined.
(w) Company Not an "Investment Company". The Company has been
advised of the rules and requirements under the Investment Company
Act of 1940, as amended (the "Investment Company Act"). The Company
is not, and after receipt of payment for the Securities and
consummation of the Concurrent Transactions will not be, an
"investment company" within the meaning of Investment Company Act.
(x) Insurance. Each of the Company and its subsidiaries are insured
by recognized, financially sound institutions with policies in such
amounts and with such deductibles and covering such risks as are
generally deemed reasonably adequate for their businesses. The
Company has no reason to believe that it or any subsidiary will not
be able (i) to renew its existing insurance coverage as and when
such policies expire or (ii) to obtain comparable coverage from
similar institutions as may be necessary or appropriate to conduct
its business as now conducted and at a cost that would not result in
a Material Adverse Change. Neither of the Company nor any subsidiary
has been denied any insurance coverage which it has sought or for
which it has applied.
(y) No Price Stabilization or Manipulation. Each of the Company and
the Guarantors has not taken and will not 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 any security of the Company to facilitate the sale or
resale of the Securities.
(z) Solvency. Each of the Company and the Guarantors is, and
immediately after the Closing Date will be, Solvent. As used herein,
the term "Solvent" means, with respect to each of the Company and
the Guarantors on a particular date, that on such date: (i) the fair
market value of its assets is greater than the total amount of its
liabilities (including contingent liabilities); (ii) the present
fair salable value of its assets is greater than the amount that
will be required to pay the probable liabilities on its debts as
they become absolute and matured; (iii) it is able to realize upon
its assets and pay its debts and other liabilities, including
contingent obligations, as they mature; and (iv) it does not have
unreasonably small capital.
(aa) No Unlawful Contributions or Other Payments. Neither the
Company nor any of its subsidiaries nor, to the best of the
Company's or any Rayovac Guarantor's knowledge, any employee,
director or agent of the Company or any subsidiary, has made any
contribution or other payment to any official of, or candidate for,
any federal, state or foreign office in violation of any law or of
the character necessary to be disclosed in the Offering Memorandum
in order to make the statements therein not misleading.
(bb) Company's Accounting System. Each of the Company and, to the
Company's knowledge, United maintains a system of accounting
controls sufficient to provide reasonable assurances that: (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with
generally accepted accounting principles as applied in the United
States and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(cc) Compliance with Environmental Laws. Except as disclosed in the
Offering Memorandum or as would not, individually or in the
aggregate, result in a Material Adverse Change: (i) neither the
Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign law or regulation relating to pollution or
protection of human health or the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including without limitation, laws
and regulations relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum and petroleum
products (collectively, "Materials of Environmental Concern"), or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern (collectively, "Environmental
Laws"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company or its
subsidiaries under applicable Environmental Laws, or noncompliance
with the terms and conditions thereof, nor has the Company or any of
its subsidiaries received any written communication, whether from a
governmental authority, citizens group, employee or otherwise, that
alleges that the Company or any of its subsidiaries is in violation
of any Environmental Law; (ii) there is no claim, action or cause of
action filed with a court or governmental authority, no
investigation with respect to which the Company or any of its
subsidiaries has received written notice, and no written notice by
any person or entity alleging potential liability for investigatory
costs, cleanup costs, governmental responses costs, natural
resources damages, property damages, personal injuries, attorneys'
fees or penalties arising out of, based on or resulting from the
presence, or release into the environment, of any Material of
Environmental Concern at any location owned, leased or operated by
the Company or any of its subsidiaries, now or in the past
(collectively, "Environmental Claims"), pending or, to each of the
Company's and the Rayovac Guarantors' knowledge, threatened against
the Company or any of its subsidiaries or any person or entity whose
liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by
operation of law; and (iii) to each of the Company's and the Rayovac
Guarantors' knowledge, there are no past or present actions,
activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge,
presence or disposal of any Material of Environmental Concern, that
would reasonably be expected to result in a violation of any
Environmental Law or form the basis of a potential Environmental
Claim against the Company or any of its subsidiaries or against any
person or entity whose liability for any Environmental Claim the
Company or any of its subsidiaries has retained or assumed either
contractually or by operation of law.
(dd) Periodic Review of Costs of Environmental Compliance. In the
ordinary course of its business, the Company conducts a periodic
review of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in
the course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review
and the amount of its established reserves, the Company has
reasonably concluded that such associated costs and liabilities
would not, individually or in the aggregate, result in a Material
Adverse Change.
(ee) ERISA Compliance. The Company and its subsidiaries and any
"employee benefit plan" (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (collectively, "ERISA"))
established or maintained by the Company, its subsidiaries or their
"ERISA Affiliates" (as defined below) are in compliance in all
material respects with ERISA. "ERISA Affiliate" means, with respect
to the Company or a subsidiary, any member of any group of
organizations described in Section 414 of the Internal Revenue Code
of 1986, as amended, and the regulations and published
interpretations thereunder (the "Code") of which the Company or such
subsidiary is a member. No "reportable event" (as defined under
ERISA) has occurred or is reasonably expected to occur with respect
to any "employee benefit plan" established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates. No
"employee benefit plan" established or maintained by the Company,
its subsidiaries or any of their ERISA Affiliates, if such "employee
benefit plan" were terminated, would have any "amount of unfunded
benefit liabilities" (as defined under ERISA), except with regard to
the Rayovac Madison Hourly Retirement Plan No. 23, the Rayovac
Madison Hourly Retirement Plan No. 24, the Rayovac Portage Hourly
Retirement Plan No. 28 and the Rayovac Corporation ▇▇▇▇▇▇▇▇▇ Hourly
Retirement Plan No. 34, which together, as of June 30, 2004, had
aggregate unfunded benefit liabilities not in excess of $6,500,000,
and as of the date hereof, would not have additional unfunded
benefit liabilities in an amount which would result in a Material
Adverse Change. Neither the Company, its subsidiaries nor any of
their ERISA Affiliates has incurred or reasonably expects to incur
any material liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "employee benefit plan"; or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each "employee
benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates that is intended to be
qualified under Section 401 of the Code has received a determination
letter from the Internal Revenue Service stating that it is so
qualified, and nothing has occurred, whether by action or failure to
act, which would cause the loss of such qualification.
(ff) No Default in Senior Indebtedness. No event of default exists
under any contract, indenture, mortgage, loan agreement, note, lease
or other agreement or instrument constituting Senior Indebtedness
(as defined in the Indenture).
(gg) New Senior Credit Agreement. At the Closing Date, the New
Senior Credit Agreement will have been duly and validly authorized
by the Company and Varta Consumer Batteries GmbH & Co. KGaA
("Varta"), and when duly executed and delivered by the Company and
Varta, will be the valid and legally binding obligation of the
Company and Varta, enforceable in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general
equitable principles (regardless of whether enforceability is
considered in a proceeding at law or in equity).
(hh) Regulation S. The Company and its Affiliates, the Guarantors
and their respective affiliates and all persons acting on their
behalf (other than the Initial Purchasers, as to whom the Company
and the Guarantors make no representation) have complied with and
will comply with the offering restrictions requirements of
Regulation S in connection with the offering of the Securities
outside the United States and, in connection therewith, the Offering
Memorandum will contain the disclosure required by Rule 902 under
the Securities Act. The Securities sold in reliance on Regulation S
will be represented upon issuance by a temporary global security
that may not be exchanged for definitive securities until the
expiration of the 40-day restricted period referred to in Rule 903
of the Securities Act and only upon certification of beneficial
ownership of such Securities by non-U.S. persons or U.S. persons who
purchased such Securities in transactions that were exempt from the
registration requirements of the Securities Act in accordance with
Section 7.
Any certificate signed by an officer of the Company or any
Guarantor and delivered to the Initial Purchasers or to counsel for
the Initial Purchasers shall be deemed to be a representation and
warranty by each of the Company or the Guarantors to each Initial
Purchaser as to the matters set forth therein.
SECTION 2. Purchase, Sale and Delivery of the Securities.
(a) The Securities. The Company agrees to issue and sell to the
several Initial Purchasers, severally and not jointly, all of the
Securities upon the terms herein set forth. On the basis of the
representations, warranties and agreements herein contained, and
upon the terms but subject to the conditions herein set forth, the
Initial Purchasers agree, severally and not jointly, to purchase
from the Company the aggregate principal amount of Securities set
forth opposite their names on Schedule A, at a purchase price of
98.375% of the principal amount thereof payable on the Closing Date.
The Company's obligation set forth in the first sentence of this
paragraph is subject to the completion of the Acquisition pursuant
to the Merger Agreement by and among Rayovac Corporation, Lindbergh
Corporation and United, dated as of January 3, 2005 (the "Merger
Agreement").
(b) The Closing Date. Delivery of certificates for the Securities in
definitive form to be purchased by the Initial Purchasers and
payment therefor shall be made at the offices of Shearman & Sterling
LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇ (or such
other place as may be agreed to by the Company and the Initial
Purchasers) at 9:00 a.m. New York City time, on February 7, 2005 or
such other time and date as the Initial Purchasers shall designate
by notice to the Company (the time and date of such closing are
called the "Closing Date"). The Company hereby acknowledges that
circumstances under which the Initial Purchasers may provide notice
to postpone the Closing Date as originally scheduled include, but
are in no way limited to, any determination by the Company or the
Initial Purchasers to recirculate to investors copies of an amended
or supplemented Offering Memorandum or a delay as contemplated by
the provisions of Section 16 hereof.
(c) Delivery of the Securities. The Company shall deliver, or cause
to be delivered, to Banc of America Securities LLC for the accounts
of the several Initial Purchasers certificates for the Securities at
the Closing Date against the irrevocable release of a wire transfer
of immediately available funds for the amount of the purchase price
therefor. The certificates for the Securities shall be in such
denominations and registered in the name of Cede & Co., as nominee
of the Depository, pursuant to the DTC Agreement, and shall be made
available for inspection on the business day preceding the Closing
Date at a location in New York City, as the Initial Purchasers may
designate. Time shall be of the essence, and delivery at the time
and place specified in this Agreement is a further condition to the
obligations of the Initial Purchasers.
(d) Delivery of Offering Memorandum to the Initial Purchasers. Not
later than 12:00 p.m. on the second business day following the date
of this Agreement, the Company shall deliver or cause to be
delivered copies of the Offering Memorandum in such quantities and
at such places as the Initial Purchasers shall reasonably request.
(e) Initial Purchasers as Qualified Institutional Buyers. Each
Initial Purchaser severally and not jointly represents and warrants
to, and agrees with, the Company that it is a "qualified
institutional buyer" within the meaning of Rule 144A (a "Qualified
Institutional Buyer") and an "accredited investor" within the
meaning of Rule 501 under the Securities Act (an "Accredited
Investor").
SECTION 3. Additional Covenants. Each of the Company and the Rayovac
Guarantors, jointly and severally, further covenants and agrees with each
Initial Purchaser as follows:
(a) Initial Purchasers' Review of Proposed Amendments and
Supplements. Prior to amending or supplementing the Offering
Memorandum (including any amendment or supplement through
incorporation by reference of any report filed under the Exchange
Act), the Company shall furnish to the Initial Purchasers for review
a copy of each such proposed amendment or supplement, and the
Company shall not use any such proposed amendment or supplement to
which the Initial Purchasers reasonably object.
(b) Amendments and Supplements to the Offering Memorandum and Other
Securities Act Matters. If, prior to the completion of the placement
of the Securities by the Initial Purchasers with the Subsequent
Purchasers, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Offering Memorandum
in order to make the statements therein, in the light of the
circumstances when the Offering Memorandum is delivered to a
purchaser, not misleading, or if in the opinion of the Initial
Purchasers or counsel for the Initial Purchasers it is otherwise
necessary to amend or supplement the Offering Memorandum to comply
with law, the Company agrees to promptly prepare (subject to Section
3 hereof), and furnish at its own expense to the Initial Purchasers,
amendments or supplements to the Offering Memorandum so that the
statements in the Offering Memorandum as so amended or supplemented
will not, in the light of the circumstances when the Offering
Memorandum is delivered to a purchaser, be misleading or so that the
Offering Memorandum, as amended or supplemented, will comply with
law.
Following the consummation of the Exchange Offer or the
effectiveness of an applicable shelf registration statement and for
so long as the Securities are outstanding if, in the reasonable
judgment of the Initial Purchasers, the Initial Purchasers or any of
their affiliates (as such term is defined in the rules and
regulations under the Securities Act) are required to deliver a
prospectus in connection with sales of, or market-making activities
with respect to, such securities, to periodically amend the
applicable registration statement so that the information contained
therein complies with the requirements of Section 10 of the
Securities Act, to amend the applicable registration statement or
supplement the related prospectus or the documents incorporated
therein when necessary to reflect any material changes in the
information provided therein so that the registration statement and
the prospectus will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances existing as
of the date the prospectus is so delivered, not misleading and to
provide the Initial Purchasers with copies of each amendment or
supplement filed and such other documents as the Initial Purchasers
may reasonably request.
Each of the Company and the Rayovac Guarantors hereby
expressly acknowledges that the indemnification and contribution
provisions of Sections 8 and 9 hereof are specifically applicable and
relate to each offering memorandum, registration statement,
prospectus, amendment or supplement referred to in this Section 3.
(c) Copies of the Offering Memorandum. The Company agrees to furnish
the Initial Purchasers, without charge, as many copies of the
Offering Memorandum and any amendments and supplements thereto as
they shall have reasonably requested.
(d) Blue Sky Compliance. The Company shall, and shall cause the
Guarantors to, cooperate with the Initial Purchasers and counsel for
the Initial Purchasers to qualify or register the Securities for
sale under (or obtain exemptions from the application of) the Blue
Sky or state securities laws of those jurisdictions designated by
the Initial Purchasers, shall comply with such laws and shall
continue such qualifications, registrations and exemptions in effect
so long as required for the distribution of the Securities. The
Company and the Guarantors shall not be required to qualify as a
foreign corporation or to take any action that would subject it to
general service of process in any such jurisdiction where it is not
presently qualified or where it would be subject to taxation as a
foreign corporation. The Company will advise the Initial Purchasers
promptly of the suspension of the qualification or registration of
(or any such exemption relating to) the Securities for offering,
sale or trading in any jurisdiction or any initiation or threat of
any proceeding for any such purpose, and in the event of the
issuance of any order suspending such qualification, registration or
exemption, the Company shall use its commercially reasonable efforts
to obtain the withdrawal thereof at the earliest possible moment.
(e) Use of Proceeds. The Company shall apply the net proceeds from
the sale of the Securities sold by it in the manner described under
the caption "Use of Proceeds" in the Offering Memorandum.
(f) The Depositary. The Company will cooperate with the Initial
Purchasers and use its commercially reasonable efforts to permit the
Securities to be eligible for clearance and settlement through the
facilities of the Depositary.
(g) Additional Issuer Information. Prior to the completion of the
placement of the Securities by the Initial Purchasers with the
Subsequent Purchasers, the Company shall file, on a timely basis,
with the Commission and the New York Stock Exchange all reports and
documents required to be filed under Section 13 or 15 of the
Exchange Act. Additionally, at any time when the Company is not
subject to Section 13 or 15 of the Exchange Act, for the benefit of
holders and beneficial owners from time to time of Securities, the
Company shall furnish, at its expense, upon request, to holders and
beneficial owners of Securities and prospective purchasers of
Securities information ("Additional Issuer Information") satisfying
the requirements of subsection (d) of Rule 144A.
(h) Agreement Not to Offer or Sell Additional Securities. During the
period of 90 days following the date of the Offering Memorandum, the
Company will not, without the prior written consent of Banc of
America Securities LLC (which consent may be withheld at the sole
discretion of Banc of America Securities LLC), directly or
indirectly, sell, offer, contract or grant any option to sell,
pledge, transfer or establish an open "put equivalent position"
within the meaning of Rule 16a-1 under the Exchange Act, or
otherwise dispose of or transfer, or announce the offering of, or
file any registration statement under the Securities Act in respect
of, any debt securities of the Company or securities exchangeable
for or convertible into debt securities of the Company (other than
as contemplated by this Agreement and to register the Exchange
Securities).
(i) Future Reports to the Initial Purchasers. For so long as any
Securities or Exchange Securities remain outstanding, the Company
will furnish to Banc of America Securities LLC: (i) as soon as
practicable after the end of each fiscal year, copies of the Annual
Report of the Company containing the balance sheet of the Company as
of the close of such fiscal year and statements of income,
stockholders' equity and cash flows for the year then ended and the
opinion thereon of the Company's independent public or certified
public accountants; (ii) as soon as practicable after the filing
thereof, copies of each proxy statement, Annual Report on Form 10-K,
Quarterly Report on Form 10-Q, Current Report on Form 8-K or other
report filed by the Company with the Commission, the National
Association of Securities Dealers, Inc. ("NASD") or any securities
exchange; and (iii) as soon as available, copies of any report or
communication of the Company mailed generally to holders of its
capital stock or debt securities (including the holders of the
Securities).
(j) No Integration. The Company agrees that it will not and will
cause its Affiliates not to make any offer or sale of securities of
the Company of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the Securities Act, such
offer or sale would render invalid (for the purpose of (i) the sale
of the Securities by the Company to the Initial Purchasers, (ii) the
resale of the Securities by the Initial Purchasers to Subsequent
Purchasers or (iii) the resale of the Securities by such Subsequent
Purchasers to others) the exemption from the registration
requirements of the Securities Act provided by Section 4 thereof or
by Rule 144A or by Regulation S thereunder or otherwise.
(k) Legended Securities. Each certificate for a Note will bear the
legend contained in "Transfer Restrictions" in the Offering
Memorandum for the time period and upon the other terms stated in
the Offering Memorandum.
(l) PORTAL. The Company will use its commercially reasonable efforts
to cause the Notes to be eligible for the National Association of
Securities Dealers, Inc. PORTAL(TM) market (the "PORTAL
market").
Banc of America Securities LLC, on behalf of the several
Initial Purchasers, may, in its sole discretion, waive in writing the
performance by the Company or any Guarantor of any one or more of the
foregoing covenants or extend the time for their performance.
SECTION 4. Payment of Expenses. Each of the Company and the Rayovac
Guarantors, jointly and severally, agrees to pay all costs, fees and expenses
incurred in connection with the performance of its obligations hereunder and
in connection with the transactions contemplated hereby, including without
limitation, (i) all expenses incident to the issuance and delivery of the
Securities (including all printing and engraving costs), (ii) all necessary
issue, transfer and other stamp taxes in connection with the issuance and sale
of the Securities to the Initial Purchasers, (iii) all fees and expenses of
the Company's and the Guarantors' counsel, independent public or certified
public accountants and other advisors, (iv) all costs and expenses incurred in
connection with the preparation, printing, filing, shipping and distribution
of each Preliminary Offering Memorandum and the Offering Memorandum (including
financial statements and exhibits and any Canadian wrap thereto), and all
amendments and supplements thereto, this Agreement, the Registration Rights
Agreement, the Indenture, the DTC Agreement, and the Notes and the Guarantees,
(v) all filing fees, attorneys' fees and expenses incurred by the Company, the
Guarantors or the Initial Purchasers in connection with qualifying or
registering (or obtaining exemptions from the qualification or registration
of) all or any part of the Securities for offer and sale under the Blue Sky
laws or Canadian securities laws, and, if requested by the Initial Purchasers,
preparing and printing a "Blue Sky Survey" or memorandum, and any supplements
thereto, advising the Initial Purchasers of such qualifications, registrations
and exemptions, (vi) the fees and expenses of the Trustee, including the fees
and disbursements of counsel for the Trustee in connection with the Indenture,
the Securities and the Exchange Securities, (vii) any fees payable in
connection with the rating of the Securities or the Exchange Securities with
the ratings agencies and the listing of the Securities with the PORTAL market,
(viii) any filing fees incident to, and any reasonable fees and disbursements
of counsel to the Initial Purchasers in connection with the review by the
NASD, if any, of the terms of the sale of the Securities or the Exchange
Securities, (ix) all fees and expenses (including reasonable fees and expenses
of counsel) of the Company and the Guarantors in connection with approval of
the Securities by DTC for "book-entry" transfer, and (x) the performance by
the Company and the Guarantors of their respective other obligations under
this Agreement. Except as provided in this Section 4, Section 6, Section 8 and
Section 9 hereof, the Initial Purchasers shall pay their own expenses,
including the fees and disbursements of their counsel.
SECTION 5. Conditions of the Obligations of the Initial Purchasers. The
obligations of the several Initial Purchasers to purchase and pay for the
Securities as provided herein on the Closing Date shall be subject to the
accuracy of the representations and warranties on the part of each of the
Company and the Rayovac Guarantors set forth in Section 1 hereof as of the
date hereof and as of the Closing Date as though then made and to the timely
performance by each of the Company and the Rayovac Guarantors of its covenants
and other obligations hereunder, and to each of the following additional
conditions:
(a) Accountants' Comfort Letter. On the date hereof, the Initial
Purchasers shall have received from each of (i) KPMG LLP,
independent public or certified public accountants for the Company,
(ii) PricewaterhouseCoopers LLP, independent public or certified
public accountants for United and United Pet Group, Inc., (iii)
PricewaterhouseCoopers, Auditores Independentes, independent public
or certified public accountants for Microlite S.A. and (iv) Ernst &
Young LLP, independent public or certified public accountants for
Nu-Gro Corporation, a letter dated the date hereof addressed to the
Initial Purchasers, in form and substance satisfactory to the
Initial Purchasers, containing statements and information of the
type ordinarily included in accountant's "comfort letters" to
Initial Purchasers, delivered according to Statement of Auditing
Standards Nos. 72, 76 and 100 (or any successor bulletins), with
respect to the audited and unaudited financial statements and
certain financial information contained in the Offering Memorandum.
(b) No Material Adverse Change or Ratings Agency Change. For the
period from and after the date of this Agreement and prior to the
Closing Date:
(i) in the judgment of the Initial Purchasers there shall not
have occurred any Material Adverse Change; and
(ii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any
securities of the Company or any of its subsidiaries by any
"nationally recognized statistical rating organization" as such term
is defined for purposes of Rule 436 under the Securities Act.
(c) Opinion of Counsel for the Company and the Guarantors. On the
Closing Date the Initial Purchasers shall have received the opinion
of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and ▇▇▇▇▇ ▇. ▇▇▇▇▇,
counsel for the Company and the Guarantors, dated as of the Closing
Date, in substantially the forms of Exhibits ▇-▇, ▇-▇ and A-3.
(d) Opinion of Counsel for the Initial Purchasers. On the Closing
Date the Initial Purchasers shall have received the favorable
opinion of Shearman & Sterling LLP, counsel for the Initial
Purchasers, dated as of the Closing Date, with respect to such
matters as may be reasonably requested by the Initial Purchasers.
(e) Opinions of Counsel for Certain of the Guarantors. On the
Closing Date the Initial Purchasers shall have received the
favorable opinion of counsel to each Guarantor not incorporated in
the State of Delaware or the State of California, of standing
reasonably satisfactory to the Initial Purchasers, dated as of the
Closing Date, in substantially the form of Exhibit A-4.
(f) Officers' Certificate. On the Closing Date the Initial
Purchasers shall have received a written certificate executed by the
Chairman of the Board, Chief Executive Officer or President and the
Chief Financial Officer or Chief Accounting Officer of each of the
Company and the Guarantors, dated as of the Closing Date, to the
effect set forth in subsection (b)(ii) of this Section 5, and
further to the effect that:
(i) for the period from and after the date of this Agreement
and prior to the Closing Date there has not occurred any Material
Adverse Change;
(ii) the representations, warranties and covenants of the
Company and the Rayovac Guarantors set forth in Section 1 of this
Agreement are true and correct with the same force and effect as
though expressly made on and as of the Closing Date; and
(iii) the Company and the Rayovac Guarantors have each complied
with all the agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the Closing Date.
(g) Bring-down Comfort Letter. On the Closing Date, the Initial
Purchasers shall have received from each of KPMG LLP,
PricewaterhouseCoopers LLP, PricewaterhouseCoopers, Auditores
Independentes and Ernst & Young LLP, a letter dated such date, in
form and substance satisfactory to the Initial Purchasers, to the
effect that they reaffirm the statements made in the letters
furnished by them pursuant to subsection (a) of this Section 5,
except that the specified date referred to therein for the carrying
out of procedures shall be no more than three business days prior to
the Closing Date.
(h) PORTAL Listing. At the Closing Date, the Notes shall have been
designated for trading on the PORTAL market.
(i) Registration Rights Agreement. The Company and each of the
Guarantors shall have entered into the Registration Rights Agreement
and the Initial Purchasers shall have received executed counterparts
thereof.
(j) Concurrent Transactions. The Concurrent Transactions shall have
been consummated on terms and conditions acceptable to the Initial
Purchasers.
(k) Notice of Redemption. At the Closing Date, United shall have
mailed or caused to be mailed, by first class mail, their
irrevocable notice of redemption to each Holder of Series D Notes
who has not tendered such Notes in accordance with the provisions of
Article III of the Indenture dated March 27, 2003, among United
Industries Corporation, the Guarantors (as defined therein) and U.S.
Bank National Association, as Trustee, and shall state that the
redemption date for the Series D Notes not purchased in the Tender
Offer, which redemption date shall be not earlier than April 1,
2005.
(l) Notice of Termination. At the Closing Date, United shall have
delivered to the lenders under the United Credit Agreement its
irrevocable notice of termination of the United Credit Agreement and
the Company shall have delivered to the lenders under the Rayovac
Credit Agreement its irrevocable notice of termination of the
Rayovac Credit Agreement.
(m) Additional Documents. On or before the Closing Date, the Initial
Purchasers and counsel for the Initial Purchasers shall have
received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon
the issuance and sale of the Securities as contemplated herein, or
in order to evidence the accuracy of any of the representations and
warranties, or the satisfaction of any of the conditions or
agreements, herein contained.
If any condition specified in this Section 5 is not
satisfied when and as required to be satisfied, this Agreement may be
terminated by the Initial Purchasers by notice to the Company at any time on
or prior to the Closing Date, which termination shall be without liability on
the part of any party to any other party, except that Section 4, Section 6,
Section 8 and Section 9 shall at all times be effective and shall survive such
termination.
SECTION 6. Reimbursement of Initial Purchasers' Expenses. If this Agreement is
terminated by the Initial Purchasers pursuant to Section 5 hereof, or if the
sale to the Initial Purchasers of the Securities on the Closing Date is not
consummated because of any refusal, inability or failure on the part of the
Company or any Guarantor to perform any agreement herein or to comply with any
provision hereof, each of the Company and the Rayovac Guarantors, jointly and
severally, agrees to reimburse the Initial Purchasers (or such Initial
Purchasers as have terminated this Agreement with respect to themselves),
severally, upon demand for all out-of-pocket expenses that shall have been
reasonably incurred by the Initial Purchasers in connection with the proposed
purchase and the offering and sale of the Securities, including but not
limited to reasonable fees and disbursements of counsel, printing expenses,
travel expenses, postage, facsimile and telephone charges.
SECTION 7. Offer, Sale and Resale Procedures. Each of the Initial Purchasers,
on the one hand, and the Company and each of the Guarantors, on the other
hand, hereby establish and agree to observe the following procedures in
connection with the offer and sale of the Securities:
(A) Offers and sales of the Securities will be
made only by the Initial Purchasers or Affiliates thereof qualified
to do so in the jurisdictions in which such offers or sales are
made. Each such offer or sale shall only be made to (i) persons whom
the offeror or seller reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Securities
Act), or (ii) non-U.S. persons outside the United States to whom the
offeror or seller reasonably believes offers and sales of the
Securities may be made in reliance upon Regulation S under the
Securities Act, upon the terms and conditions set forth in Annex I
hereto, which Annex I is hereby expressly made a part hereof.
(B) The Securities will be offered by approaching
prospective Subsequent Purchasers on an individual basis. No general
solicitation or general advertising (within the meaning of Rule 502
under the Securities Act) will be used in the United States in
connection with the offering of the Securities.
(C) Upon original issuance by the Company, and
until such time as the same is no longer required under the
applicable requirements of the Securities Act, the Securities (and
all securities issued in exchange therefor or in substitution
thereof, other than the Exchange Securities) shall bear the
following legend:
"THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
FOREIGN SECURITIES LAWS. NEITHER THIS NOTE NOR THE
GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE
HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF
THE COMPANY WAS THE OWNER OF THIS NOTE AND THE GUARANTEES
ENDORSED HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE
GUARANTEES ENDORSED HEREON) (THE "RESALE RESTRICTION
TERMINATION DATE") ONLY (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") , TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) PRIOR TO THE
END OF THE 40 DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR
PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER
IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE."
Following the sale of the Securities by the Initial
Purchasers to Subsequent Purchasers pursuant to the terms
hereof, the Initial Purchasers shall not be liable or
responsible to the Company for any losses, damages or
liabilities suffered or incurred by the Company, including
any losses, damages or liabilities under the Securities Act,
arising from or relating to any resale or transfer of any
Security by such Subsequent Purchaser.
SECTION 8. Indemnification.
(a) Indemnification of the Initial Purchasers. Each of the Company
and the Guarantors, jointly and severally, agrees to indemnify and
hold harmless each Initial Purchaser, its directors, officers and
employees, and each person, if any, who controls any Initial
Purchaser within the meaning of the Securities Act and the Exchange
Act against any loss, claim, damage, liability or expense, as
incurred, to which such Initial Purchaser or such controlling person
may become subject, under the Securities Act, the Exchange Act or
other federal or state statutory law or regulation, or at common law
or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company),
insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of or
is based upon any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Offering Memorandum or
the Offering Memorandum (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of 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 to
reimburse each Initial Purchaser and each such controlling person
for any and all expenses (including the fees and disbursements of
counsel chosen by Banc of America Securities LLC) to which such
Initial Purchaser or controlling person is entitled under this
Section 8 and subject to the limitations set forth in this Section
8, as such expenses are reasonably incurred by such Initial
Purchaser or such controlling person in connection with
investigating, defending, settling, compromising or paying any such
loss, claim, damage, liability, expense or action; provided,
however, that the foregoing indemnity agreement shall not apply to
any loss, claim, damage, liability or expense to the extent, but
only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with written
information furnished to the Company by the Initial Purchasers
expressly for use in any Preliminary Offering Memorandum or the
Offering Memorandum (or any amendment or supplement thereto). The
indemnity agreement set forth in this Section 8 shall be in addition
to any liabilities that the Company and the Guarantors may otherwise
have.
(b) Indemnification of the Company, the Guarantors, their Directors
and Officers. Each Initial Purchaser agrees, severally and not
jointly, to indemnify and hold harmless the Company, the Guarantors
and each of their directors, officers and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act, against any loss, claim, damage, liability or expense,
as incurred, to which the Company, the Guarantors or any such
director, officer or controlling person may become subject, under
the Securities Act, the Exchange Act, or other federal or state
statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is
effected with the written consent of such Initial Purchaser),
insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of or
is based upon any untrue or alleged untrue statement of a material
fact contained in any Preliminary Offering Memorandum or the
Offering Memorandum (or any amendment or supplement thereto), or
arises out of or is based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Offering Memorandum or the
Offering Memorandum (or any amendment or supplement thereto), in
reliance upon and in conformity with written information furnished
to the Company and the Guarantors by the Initial Purchasers
expressly for use therein; and to reimburse the Company, the
Guarantors or any such director, officer or controlling person for
any legal and other expenses to which the Company, a Guarantor or
such controlling person is entitled under this Section 8 and subject
to the limitations set forth in this Section 8, reasonably incurred
by the Company, the Guarantors or any such director, officer or
controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage,
liability, expense or action (including the fees and disbursements
of counsel chosen by such person). The Company and the Guarantors
hereby acknowledges that the only information that the Initial
Purchasers have furnished to the Company and the Guarantors
expressly for use in any Preliminary Offering Memorandum or the
Offering Memorandum (or any amendment or supplement thereto) are the
statements set forth in the third and fourth sentences of the
seventh paragraph and ninth paragraph under the caption "Plan of
Distribution" in the Offering Memorandum; and the Initial Purchasers
confirm that such statements are correct. The indemnity agreement
set forth in this Section 8 shall be in addition to any liabilities
that each Initial Purchaser may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly
after receipt by an indemnified party under this Section 8 of notice
of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party in writing of
the commencement thereof, but the omission so to notify the
indemnifying party will not relieve it from any liability which it
may have to any indemnified party for contribution or otherwise than
under the indemnity agreement contained in this Section 8 or to the
extent it is not prejudiced as a proximate result of such failure.
In case any such action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to
participate in and, to the extent that it shall elect, jointly with
all other indemnifying parties similarly notified, by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified
party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that a
conflict may arise between the positions of the indemnifying party
and the indemnified party in conducting the defense of any such
action or that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of such indemnifying party's election so to assume the defense
of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses 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 next
preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than
one separate counsel (together with local counsel), approved by the
indemnifying party (Banc of America Securities LLC in the case of
Section 8 and Section 9 hereof), representing the indemnified
parties who are parties to such action) or (ii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action, in each
of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall
not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be
a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by Section 8 hereof, the indemnifying party agrees that
it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into
more than 45 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect
any settlement, compromise or consent to the entry of judgment in
any pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such
indemnified party, unless such settlement, compromise or consent (i)
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit
or proceeding and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on
behalf of the indemnified party.
SECTION 9. Contribution. If the indemnification provided for in Section 8
hereof is for any reason held to be unavailable to or otherwise insufficient
to hold harmless an indemnified party in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then (i) each
indemnifying party shall contribute to the aggregate amount paid or payable by
such indemnified party, as incurred, as a result of any losses, claims,
damages, liabilities or expenses referred to therein in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
from the offering of the Securities pursuant to this Agreement; or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Guarantors, on the one hand, and the Initial Purchasers, on the other
hand, in connection with the statements or omissions or inaccuracies in the
representations and warranties herein which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, in
connection with the offering of the Securities pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the Securities pursuant to this Agreement
(before deducting expenses) received by the Company and the Guarantors, and
the total discount received by the Initial Purchasers bear to the aggregate
initial offering price of the Securities. The relative fault of the Company
and the Guarantors, on the one hand, and the Initial Purchasers, on the other
hand, shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact or any such inaccurate or alleged
inaccurate representation or warranty relates to information supplied by the
Company and the Guarantors, on the one hand, or the Initial Purchasers, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 8 hereof,
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim. The provisions
set forth in Section 8 hereof with respect to notice of commencement of any
action shall apply if a claim for contribution is to be made under this
Section 9; provided, however, that no additional notice shall be required with
respect to any action for which notice has been given under Section 8 hereof
for purposes of indemnification.
The Company, the Guarantors and the Initial Purchasers agree
that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation (even if the Initial
Purchasers were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Initial
Purchaser shall be required to contribute any amount in excess of the discount
received by such Initial Purchaser in connection with the Securities
distributed by it. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11 of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations to contribute pursuant
to this Section 9 are several, and not joint, in proportion to their
respective commitments as set forth opposite their names in Schedule A. For
purposes of this Section 9, each director, officer and employee of an Initial
Purchaser and each person, if any, who controls an Initial Purchaser within
the meaning of the Securities Act and the Exchange Act shall have the same
rights to contribution as such Initial Purchaser, and each director of the
Company and each person, if any, who controls the Company within the meaning
of the Securities Act and the Exchange Act shall have the same rights to
contribution as the Company.
SECTION 10. Termination of this Agreement. Prior to the Closing Date, this
Agreement may be terminated (A) by the Initial Purchasers by notice given to
the Company if at any time: (i) trading or quotation in any of the Company's
securities shall have been suspended or limited by the commission or by the
New York Stock Exchange, or trading in securities generally on either the
Nasdaq Stock Market or the New York Stock Exchange shall have been suspended
or limited, or minimum or maximum prices shall have been generally established
on any of such stock exchanges by the Commission or the NASD; (ii) a general
banking moratorium shall have been declared by any federal or New York
authorities; (iii) there shall have occurred any outbreak or escalation of
national or international hostilities or any crisis or calamity, or any change
in the United States or international financial markets, or any substantial
change or development involving a prospective substantial change in United
States' or international political, financial or economic conditions, as in
the judgment of the Initial Purchasers is material and adverse and makes it
impracticable to market the Securities in the manner and on the terms
described in the Offering Memorandum or to enforce contracts for the sale of
securities; (iv) in the judgment of the Initial Purchasers there shall have
occurred any Material Adverse Change; or (v) the Company shall have sustained
a material loss by strike, fire, flood, earthquake, accident or other calamity
of such character as in the judgment of the Initial Purchasers may interfere
materially with the conduct of the business and operations of the Company
regardless of whether or not such loss shall have been insured or (B) by the
Initial Purchasers or the Company in the event of a termination or abandonment
of the Merger Agreement pursuant to Section 8.1 thereof. Any termination
pursuant to this Section 10 shall be without liability on the part of (i) the
Company or the Guarantors to any Initial Purchaser, except that the Company
and the Guarantors shall be obligated to reimburse the expenses of the Initial
Purchasers pursuant to Sections 4 and 6 hereof, (ii) any Initial Purchaser to
the Company or any Guarantor, or (iii) any party hereto to any other party
except that the provisions of Section 8 and Section 9 hereof shall at all
times be effective and shall survive such termination.
SECTION 11. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the Guarantors, of their respective officers and
of the several Initial Purchasers set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Initial Purchaser or the Company,
the Guarantors or any of its or their partners, officers or directors or any
controlling person, as the case may be, and will survive delivery of and
payment for the Securities sold hereunder and any termination of this
Agreement.
SECTION 12. Notices. All communications hereunder shall be in writing and
shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Initial Purchasers:
Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: High Yield Capital Markets
with a copy to:
Shearman & Sterling LLP
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
If to the Company or the Guarantors:
Rayovac Corporation
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Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
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Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
SECTION 13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, including any substitute Initial Purchasers
pursuant to Section 16 hereof, and to the benefit of the employees, officers
and directors and controlling persons referred to in Section 8 and Section 9,
and in each case their respective successors, and no other person will have
any right or obligation hereunder. The term "successors" shall not include any
purchaser of the Securities as such from any of the Initial Purchasers merely
by reason of such purchase.
SECTION 14. Partial Unenforceability. The invalidity or unenforceability of
any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision
hereof. If any Section, paragraph or provision of this Agreement is for any
reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to make
it valid and enforceable.
SECTION 15. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
Any legal suit, action or proceeding arising out of or based
upon this Agreement or the transactions contemplated hereby ("Related
Proceedings") may be instituted in the federal courts of the United States of
America located in the City and County of New York or the courts of the State
of New York in each case located in the City and County of New York
(collectively, the "Specified Courts"), and each party irrevocably submits to
the non-exclusive jurisdiction (except for proceedings instituted in regard to
the enforcement of a judgment of any such court (a "Related Judgment"), as to
which such jurisdiction is non-exclusive) of such courts in any such suit,
action or proceeding. Service of any process, summons, notice or document by
mail to such party's address set forth above shall be effective service of
process for any suit, action or other proceeding brought in any such court.
The parties irrevocably and unconditionally waive any objection to the laying
of venue of any suit, action or other proceeding in the Specified Courts and
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such suit, action or other proceeding brought in any such
court has been brought in an inconvenient forum.
SECTION 16. Default of One or More of the Several Initial Purchasers. If any
one or more of the several Initial Purchasers shall fail or refuse to purchase
Securities that it or they have agreed to purchase hereunder on the Closing
Date, and the aggregate number of Securities which such defaulting Initial
Purchaser or Initial Purchasers agreed but failed or refused to purchase does
not exceed 10% of the aggregate number of the Securities to be purchased on
such date, the other Initial Purchasers shall be obligated, severally, in the
proportions that the number of Securities set forth opposite their respective
names on Schedule A bears to the aggregate number of Securities set forth
opposite the names of all such non-defaulting Initial Purchasers, or in such
other proportions as may be specified by the Initial Purchasers with the
consent of the non-defaulting Initial Purchasers, to purchase the Securities
which such defaulting Initial Purchaser or Initial Purchasers agreed but
failed or refused to purchase on such date. If any one or more of the Initial
Purchasers shall fail or refuse to purchase Securities and the aggregate
number of Securities with respect to which such default occurs exceeds 10% of
the aggregate number of Securities to be purchased on the Closing Date, and
arrangements satisfactory to the Initial Purchasers and the Company for the
purchase of such Securities are not made within 48 hours after such default,
this Agreement shall terminate without liability of any party to any other
party except that the provisions of Section 4, Section 6, Section 8 and
Section 9 shall at all times be effective and shall survive such termination.
In any such case either the Initial Purchasers or the Company shall have the
right to postpone the Closing Date, as the case may be, but in no event for
longer than seven days in order that the required changes, if any, to the
Offering Memorandum or any other documents or arrangements may be effected.
As used in this Agreement, the term "Initial Purchaser"
shall be deemed to include any person substituted for a defaulting Initial
Purchaser under this Section 16. Any action taken under this Section 16 shall
not relieve any defaulting Initial Purchaser from liability in respect of any
default of such Initial Purchaser under this Agreement.
SECTION 17. General Provisions. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in
two or more counterparts, each one of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement may not be amended or modified unless in writing by
all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to
benefit. The Table of Contents and the section headings herein are for the
convenience of the parties only and shall not affect the construction or
interpretation of this Agreement.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company the enclosed copies
hereof, whereupon this instrument, along with all counterparts hereof, shall
become a binding agreement in accordance with its terms.
Very truly yours,
RAYOVAC CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
ROV HOLDING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
ROVCAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
The foregoing Purchase Agreement is hereby confirmed and
accepted by the Initial Purchasers as of the date first above written.
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
ABN AMRO INCORPORATED
By: Banc of America Securities LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
Sch-B-2
SCHEDULE A
Initial Purchasers
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
SCHEDULE B
Subsidiaries
[Omitted. A supplemental copy of this schedule will be
furnished to the SEC upon request.]
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FORM OF OPINION OF
SKADDEN, ARPS, SLATE, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
EXHIBIT A-2
FORM OF TAX OPINION OF
SKADDEN, ARPS, SLATE, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
EXHIBIT A-3
FORM OF OPINION OF
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[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
EXHIBIT A-4
FORM OF OPINION OF
COUNSEL FOR CERTAIN OF THE GUARANTORS
[Omitted. A supplemental copy of this exhibit will be
furnished to the SEC upon request.]
ANNEX I
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Resale Pursuant to Regulation S or Rule 144A.
[Omitted. A supplemental copy of this annex will be
furnished to the SEC upon request.]