Exhibit 10.7
SECURITIES EXCHANGE AGREEMENT
by and among
ONEIDA LTD.
and
THE PURCHASERS
IDENTIFIED HEREIN
Dated as of August 9, 2004
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS...........................................................................................1
1.1 Defined Terms..................................................................................1
ARTICLE II. EXCHANGE OF SECURITIES...............................................................................4
2.1 Exchange of Common Shares......................................................................4
2.2 Consideration for Common Shares................................................................5
ARTICLE III. CLOSING.............................................................................................5
3.1 Closing........................................................................................5
3.2 Deliveries by the Company at the Closing.......................................................5
3.3 Deliveries by the Acquiring Entities at the Closing............................................6
3.4 Registration Rights Agreement..................................................................6
3.5 Form of Documents and Instruments..............................................................6
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE COMPANY........................................................6
4.1 Organization of the Company....................................................................6
4.2 Capitalization of the Company..................................................................7
4.3 Authorization of Issuance......................................................................7
4.4 Due Authorization..............................................................................8
4.5 Governmental and Other Approvals...............................................................8
4.6 Board Recommendations..........................................................................8
4.7 No Brokers.....................................................................................9
4.8 Other Representations and Warranties...........................................................9
ARTICLE V. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF ACQUIRING ENTITIES......................................9
5.1 Purchase for Investment........................................................................9
5.2 Outstanding Indebtedness......................................................................11
5.3 No Brokers....................................................................................11
ARTICLE VI. COVENANTS...........................................................................................11
6.1 Legend........................................................................................11
ARTICLE VII. MISCELLANEOUS......................................................................................11
7.1 Assignment....................................................................................11
7.2 Notices.......................................................................................11
7.3 Choice of Law.................................................................................12
7.4 Counterparts..................................................................................13
7.5 Invalidity....................................................................................13
7.6 Headings......................................................................................13
7.7 Severability..................................................................................13
EXHIBITS
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Exhibit A - Bylaws
Exhibit B - Certificate of Incorporation
Exhibit C - Form of Registration Rights Agreement
Exhibit D - Form of Receipt
Exhibit E - Form of Amendment to Amended and Restated Rights Agreement
SCHEDULES
---------
Schedule 1 - List of Purchasers
Schedule 4.2 - Capitalization of the Company
SECURITIES EXCHANGE AGREEMENT
-----------------------------
This Securities Exchange Agreement dated as of August 9, 2004, is made
by and among Oneida Ltd., a New York corporation (the "Company"), and each of
the entities set forth on Schedule 1 hereto (each, a "Purchaser" and
collectively, the "Purchasers").
RECITALS
--------
WHEREAS, the Company and each Purchaser are parties to that certain
lock-up agreement (the "Lock-Up Agreement") dated as of June 24, 2004 pursuant
to which the Company and the Purchasers agreed to the terms of a financial
restructuring (the "Restructuring"), as more particularly set forth on the term
sheet attached as Exhibit A to the Lock-Up Agreement; and
WHEREAS, in order to implement the Restructuring, the Company agreed
to, among other things, issue to the Acquiring Entities an aggregate of
29,852,907 shares (the "Common Shares") of the Company's common stock (the
"Common Stock"), par value $1.00 per share, in consideration of the partial
Conversion (defined below) of the Outstanding Indebtedness (defined below) held
by each Purchaser, as more particularly set forth in Section 2.2 of this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Defined Terms. As used herein, the terms below shall have the
following meanings:
"Acquiring Entity" means any Purchaser and its nominee (which is a
signatory to this Agreement), as applicable.
"Affiliate" shall mean with respect to any Person, any other Person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition, a Person
shall be deemed to be "controlled by" another Person if such latter Person
possesses, directly or indirectly, power either to direct or cause the direction
of management or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise.
"Agreement" means this Securities Exchange Agreement, together with all
schedules and exhibits attached hereto.
"Applicable Law" shall mean all applicable provisions of statutes,
rules, regulations and orders of the United States, any state thereof or
municipality therein or of any foreign governmental body or of any regulatory
agency applicable to the Person in question, and all orders and decrees of all
courts and arbitrators in proceedings or actions in which the Person in question
is a party.
"Board of Directors" means the Board of Directors of the Company as of
the date of this Agreement.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which banks are required or permitted to close in the State of New
York.
"Bylaws" means the Amended and Restated Bylaws of the Company as in
effect on the date hereof, in the form attached hereto as Exhibit A.
"Certificate of Incorporation" means the Restated Certificate of
Incorporation of the Company as amended or restated and as in effect on the date
hereof, in the form attached hereto as Exhibit B.
"Closing" has the meaning set forth in Section 3.1 of this Agreement.
"Closing Date" has the meaning set forth in Section 3.1 of this
Agreement.
"Common Shares" has the meaning set forth in the Recitals.
"Common Stock" has the meaning set forth in the Recitals.
"Company" has the meaning set forth in the Introductory Paragraph.
"Conversion" has the meaning set forth in Section 2.2 of this
Agreement.
"Conversion Amount" has the meaning set forth in Section 2.2 of this
Agreement.
"Credit Agreement" means the Amended and Restated Credit Agreement
dated as of April 27, 2001 by and among the Company, the lending institutions
from time to time parties thereto, and JPMorgan Chase Bank, as administrative
agent, as amended, together with all schedules and exhibits referenced therein
and all notes executed on account thereof (other than the Second Amended Credit
Agreement).
"Encumbrance" means any claim, lien, pledge, option, charge, easement,
security interest, right-of-way, encumbrance or other rights of third parties,
and, with respect to any securities, any agreements, understandings or
restrictions affecting the voting rights or other incidents of record or
beneficial ownership pertaining to such securities.
"Governmental Authority" shall mean any federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, or any court, in each case whether of the United States or any
foreign jurisdiction.
"Lock-Up Agreement" has the meaning set forth in the Recitals.
"Material Adverse Effect" shall mean any event or condition that (i)
has had, or could reasonably be expected to have, a material adverse change or
effect on the business, assets, properties, performance, operations, condition
(financial or otherwise) or prospects of the Company, and its Subsidiaries,
taken as a whole, or (ii) materially impairs the ability of the Company to
perform any of its obligations under this Agreement or the Transaction
Documents; provided, however, that any event or condition will be deemed to have
a "Material Adverse Effect" if such event or condition when taken together with
all other events and conditions occurring or in existence at such time
(including all other events and conditions which, but for the fact that a
representation, warranty or covenant is subject to a "Material Adverse Effect"
exception, would cause such representation or warranty contained herein to be
untrue or such covenant to be breached) would result in a "Material Adverse
Effect," even though, individually, such event or condition would not do so.
"Note Purchase Agreement" means that certain 2001 Amended and Restated
Note Purchase Agreement dated as of May 1, 2001, as amended, together with all
schedules and exhibits referenced therein and all notes executed on account
thereof (other than the Second Amended Credit Agreement).
"NYBCL" means the New York Business Corporation Law, as amended from
time to time.
"Options" means outstanding options, warrants or rights to purchase
Common Stock to be issued under one or more equity compensation plans approved
by the Company's shareholders.
"Outstanding Indebtedness" means (i) with respect to each Purchaser
party to the Credit Agreement, the aggregate amount owed to such Purchaser
(together with accrued but unpaid interest) pursuant to the Credit Agreement,
and (ii) with respect to each Purchaser party to the Note Purchase Agreement,
the aggregate amount owed to such Purchaser (together with accrued but unpaid
interest) pursuant to the Note Purchase Agreement and, in each case of (i) and
(ii) above, as more particularly set forth opposite such Purchaser's name on
Schedule 1 hereto under the title "Pre-Conversion Outstanding Indebtedness".
"Permits" means all licenses, permits, orders, consents, approvals,
registrations, authorizations, qualifications and filings required by any
federal, state, local or foreign laws or governmental or regulatory bodies and
all industry or other non-governmental self-regulatory organizations.
"Person" shall mean any natural person, corporation, division of a
corporation, partnership, limited liability partnership, limited liability
company, trust, joint venture, association, company, estate, unincorporated
organization or government or any agency or political subdivision thereof.
"Private Placement Legend" has the meaning set forth in Section 6.1 of
this Agreement.
"Purchaser" or "Purchasers" has the meaning set forth in the
Introductory Paragraph.
"Registration Rights Agreement" means the Registration Rights Agreement
by and among the Company and the Acquiring Entities in the form attached hereto
as Exhibit C.
"Restructuring" has the meaning set forth in the Recitals.
"Restructuring Documents" means the Transactions Documents together
with the Fundamental Documents (as defined in the Second Amended Credit
Agreement).
"Second Amended Credit Agreement" means that certain Second Amended and
Restated Credit Agreement, dated as of even date herewith by and among the
Company, JPMorgan Chase Bank, as administrative agent and the banks and
financial institutions identified therein as Lenders.
"Securities Act" shall mean the Securities Act of 1933, as amended,
including the rules and regulations promulgated thereunder.
"Series A Preferred Stock" has the meaning set forth in Section 4.2 of
this Agreement.
"6% Cumulative Preferred Stock" has the meaning set forth in Section
4.2 of this Agreement.
"Subsidiary" shall mean with respect to any Person, any corporation,
association, joint venture, partnership or other business entity (whether now
existing or hereafter organized) of which at least a majority of the voting
stock or other ownership interests having ordinary voting power for the election
of directors (or the equivalent) is, at the time as of which any determination
is being made, owned or controlled by such Person or one or more subsidiaries of
such Person or by such Person and one or more subsidiaries of such Person.
"Transaction" means, taken together, the transactions contemplated
under this Agreement.
"Transaction Documents" means, collectively, this Agreement and the
Registration Rights Agreement.
"Transfer Agent" means the American Stock Transfer & Trust Company.
ARTICLE II
EXCHANGE OF SECURITIES
2.1 Exchange of Common Shares. Upon the terms and subject to the
conditions contained herein, on the Closing Date, the Company will issue to each
Purchaser that number of Common Shares set forth opposite such Purchaser's name
on Schedule 1 hereto under the title
"Common Shares to be Acquired", except that (a) Bank of America, N.A. hereby
requests, and the Company agrees, that (i) 387, 277 shares of Common Stock
convertible for $2,999,113.13 of its Pre-Conversion Outstanding Indebtedness to
be issued to it pursuant to this Section 2.1 be issued to General Electric
Capital Corporation and (ii) 1,156,992 shares of Common Stock convertible for
$8,498,829.01 of its Pre-Conversion Outstanding Indebtedness to be issued to it
pursuant to this Section 2.1 be issued to Anchorage Capital Master Offshore,
Ltd, (b) ▇▇▇▇▇▇▇ Capital Management, ▇▇ ▇▇ hereby requests, and the Company
agrees, that 387,391 shares of Common Stock convertible for $3,000,000.000 of
its Pre-Conversion Outstanding Indebtedness to be issued to it pursuant to this
Section 2.1 be issued to Bank of America, N.A., (c) ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank hereby
requests, and the Company agrees, that all of the shares of Common Stock to be
issued to it pursuant to this Section 2.1 be issued to Chart Holding Corp and
(d) SPS High Yield Loan Trading. hereby requests that all of the shares of
Common Stock to be issued to it pursuant to this Section 2.1 be issued to Chart
Holding Corp. Each Acquiring Entity shall be a beneficiary of this Section 2.1.
2.2 Consideration for Common Shares. Upon the terms and subject to the
conditions contained herein, as consideration for the issuance of the Common
Shares set forth opposite each Purchaser's name, such Purchaser shall convert
(the "Conversion") that amount (the "Conversion Amount") of Outstanding
Indebtedness held by such Purchaser set forth opposite such Purchaser's name on
Schedule 1 hereto under the title "Conversion Amount". The Conversion Amount of
each Purchaser which is a Lender (as defined in the Credit Agreement) shall
consist entirely of Revolving Loans (as defined in the Credit Agreement) and no
Bullet Loans (as defined in the Credit Agreement) or Swingline Loans (as defined
in the Credit Agreement) shall be deemed to have been converted hereunder. Upon
the Conversion of the Conversion Amount and the issuance of the Common Shares,
the Conversion Amount shall be deemed paid in full by the Company and shall no
longer be deemed Outstanding Indebtedness and the Outstanding Indebtedness held
by such Purchaser immediately following the Conversion shall be the amount set
forth opposite such Purchaser's name on Schedule 1 hereto under the title
"Post-Conversion Outstanding Indebtedness".
ARTICLE III
CLOSING
3.1 Closing. The closing of the transactions contemplated herein (the
"Closing") shall occur concurrently with the execution of this Agreement (the
date on which the Closing occurs is referred to herein as the "Closing Date") at
the offices of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, unless the parties hereto otherwise agree.
3.2 Deliveries by the Company at the Closing. At the Closing, the
Company shall issue and deliver to the Purchasers:
(a) certificates evidencing the Common Shares in the name of the
Purchasers (subject to Section 2.1) in the respective amounts set forth on
Schedule 1 hereto, provided that, if
a certificate is not delivered to any Purchaser at the Closing, the Company will
deliver to such Purchaser evidence of a written direction to the Transfer Agent
instructing the Transfer Agent to deliver such certificate to such Purchaser
within five (5) Business Days of the Closing Date and such written direction
shall satisfy the Company's obligation under this Section 3.2(a) with respect to
such Purchaser;
(b) the Amendment of the Amended and Restated Rights Agreement, dated
as of even date herewith, between the Company and Transfer Agent, duly executed
and delivered by the parties thereto in substantially the form attached hereto
as Exhibit E;
(c) an opinion of (i) ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Counsel of the
Company and (ii) Shearman & Sterling LLP, counsel to the Company; and
(d) all such other documents and instruments as contemplated by this
Agreement as the Purchasers or their counsel shall reasonably request to
consummate or evidence the Transaction.
3.3 Deliveries by the Acquiring Entities at the Closing. At the
Closing, each Acquiring Entity shall deliver to the Company:
(a) a duly executed receipt, in the form attached hereto as Exhibit D,
confirming the Conversion of the Conversion Amount as provided in Section 2.2 of
this Agreement and the amount of Outstanding Indebtedness held by such Purchaser
immediately following the Conversion; and
(b) all such other documents and instruments as contemplated by this
Agreement as the Company or its counsel shall reasonably request to consummate
or evidence the Transaction.
3.4 Registration Rights Agreement. At the Closing, the Company and each
Acquiring Entity shall execute and deliver the Registration Rights Agreement.
3.5 Form of Documents and Instruments. All of the documents and
instruments delivered at the Closing shall be in form and substance, and shall
be executed and delivered, in a manner reasonably satisfactory to the parties'
respective counsel.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Acquiring Entities as
follows:
4.1 Organization of the Company. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York and is qualified to do business and is in good standing in all
jurisdictions where either (i) the nature of its properties or business so
requires or (ii) the failure to be in good standing could reasonably be expected
to have a Material Adverse Effect. The Company has the corporate power and
authority to (i) own, lease, and operate its properties and to carry on its
business as presently being, or as now intended to be, or as now intended to be,
conducted and (ii) to execute, deliver and perform its obligations under this
Agreement and any other documents contemplated hereby to which it is or will be
a party.
4.2 Capitalization of the Company.
(a) As of the date hereof, the authorized capital stock of the Company
consists solely of (i) 48,000,000 shares of Common Stock, with a par value of
$1.00 per share, (ii) 95,660 shares designated as 6% Cumulative Preferred Stock,
with a par value of $25 per share (the "6% Cumulative Preferred Stock"), (iii)
Series Preferred Stock (blank check), and (iv) 1,000,000 shares of Series A
Preferred Stock, with par value of $1.00 per share (the "Series A Preferred
Stock"). As of the date hereof, (i) 16,779,017 shares of Common Stock are issued
and outstanding, (ii) 86,036 shares of 6% Cumulative Preferred Stock are issued
and outstanding, (iii) 0 shares of Series Preferred Stock are issued and
outstanding, and (iv) 1,368,074 shares of Common Stock are reserved for issuance
upon exercise of Options (whether vested or unvested as of the date hereof).
Schedule 4.2 contains the aggregate number of outstanding Options to purchase
shares of Common Stock, the weighted average exercise price with respect to such
Options and the plan or other arrangements pursuant to which such Options were
issued. All outstanding shares of each of the Common Stock and the 6% Cumulative
Preferred Stock have been duly authorized and validly issued and are fully paid
and nonassessable and issued in compliance with the Securities Act and all
applicable state securities laws, and no shares of capital stock of the Company
are subject to, nor have any been issued in violation of, any preemptive or
similar rights.
(b) Except as set forth above in paragraph (a) of this Section 4.2, as
contemplated by this Agreement, there are outstanding (i) no shares of capital
stock or other voting securities of the Company; (ii) no securities of the
Company convertible into or exchangeable for shares of capital stock or other
voting securities of the Company; (iii) no subscriptions, options, warrants,
calls, commitments, preemptive rights or other rights of any kind to acquire
from the Company, and no obligation of the Company to issue or sell any shares
of capital stock or other voting securities of the Company or any securities of
the Company convertible into or exchangeable for such capital stock or voting
securities; and (iv) other than employee compensation plans based on the
Company's earnings and executive officer employment agreements, no equity
equivalents, interests in the ownership or earnings or other similar rights of
or with respect to the Company. Except as set forth on Schedule 4.2, there are
no outstanding contractual obligations of the Company to repurchase, redeem or
otherwise acquire any shares of Common Stock or any other securities of the type
described in clauses (i)-(iv) of the preceding sentence. There are no
restrictions upon the voting or transfer of any share of the capital stock or
other voting securities of the Company pursuant to the Certificate of
Incorporation, the Bylaws or other governing documents or any agreement or other
instrument to which the Company is a party or by which the Company is bound.
4.3 Authorization of Issuance. At the Closing, the shares of Common
Stock to be acquired by the Acquiring Entities from the Company will be duly
authorized and validly issued, fully paid and nonassessable and not subject to,
or issued in violation of, any preemptive or similar rights. At the Closing, no
further approval or authority of the Board of Directors or the holders of
capital stock of the Company under the NYBCL, or the consent of any other party,
will be required for the issuance of the shares of Common Stock to be issued
pursuant to this Agreement.
4.4 Due Authorization. The Company has the requisite corporate power
and authority to execute and deliver each of the Transaction Documents, perform
its obligations thereunder, and to consummate the Transaction. The execution,
delivery and performance by the Company of each of the Transaction Documents,
and the consummation by the Company of the transactions contemplated thereby,
(i) have been duly authorized by all necessary corporate action of the Company,
(ii) will not constitute a violation of any provision of Applicable Law or any
order of any Governmental Authority applicable to the Company or any of its
properties or assets, (iii) will not violate any provision of the Certificate of
Incorporation or ByLaws or, in any material respect, any provision of any
Permit, or Material Agreement (as defined in the Second Amended Credit
Agreement) to which the Company is a party or by which the Company or any of its
material properties or assets are bound, (iv) will not be in conflict with,
result in a breach of, or constitute (with due notice or lapse of time or both)
a default under, or create any right to terminate, any such Permit, or Material
Agreement except as would not reasonably be expected to result in a Material
Adverse Effect and (v) will not result in the creation or imposition of (or the
obligation to create or impose) any Encumbrance or charge of any nature
whatsoever upon any of the properties or assets of the Company; except in each
case of clauses (i), (ii), (iv) and (v), as did not result or would not
reasonably be expected to result in a Material Adverse Effect. This Agreement
has been duly executed and delivered by the Company and constitutes, and each of
the other Transaction Documents, when executed by the Company at the Closing as
provided herein, will constitute, a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium, and similar laws affecting creditors' rights
generally and (ii) general principles of equity, whether such enforceability is
considered in a proceeding in equity or at law.
4.5 Governmental and Other Approvals. All authorizations, approvals,
orders, consents, licenses, registrations or filings from or with any
Governmental Authority required for the execution, delivery and performance by
the Company of this Agreement and the other Transaction Documents to which it is
a party have been duly obtained or made, and are in full force and effect, and
if any further authorizations, approvals, orders, consents, licenses,
registrations or filings should hereafter become necessary, the Company shall
obtain or make all such authorizations, approvals, orders, consents, licenses,
registrations or filings.
4.6 Board Recommendations. By a vote of the directors present at a
meeting of the Board of Directors (which meeting was duly called and held and at
which a quorum was present at all times), the Board of Directors has approved
and adopted the terms of this Agreement, the consummation of the Transaction,
and the issuance of the shares of Common Stock to be issued to the Acquiring
Entities at the Closing, and such approval is sufficient to render inapplicable
to the transactions contemplated by this Agreement (including, without
limitation, the issuance of each of the Common Shares) the provisions of Section
912 et seq. of the NYBCL, Article Eighth of the Certificate of Incorporation.
4.7 No Brokers. The Company has not employed, and is not subject to the
valid claim of, any broker, finder, consultant or other intermediary in
connection with the Transactions who might be entitled to a fee or commission
from the Company in connection with the Transactions.
4.8 Other Representations and Warranties. All representations and
warranties of the Company contained in Section 3.3(b) through (e) and Section
3.4 through Section 3.30 of the Second Amended Credit Agreement are true and
correct on and as of the date hereof.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF ACQUIRING ENTITIES
Each Acquiring Entity, severally and not jointly, hereby represents and
warrants, solely as to such Acquiring Entity and not as to any other Acquiring
Entity, to the Company as follows:
5.1 Purchase for Investment.
(a) Such Acquiring Entity is acquiring the Common Shares solely by and
for its own account, for investment purposes only and not for the purpose of
resale or distribution; and such Acquiring Entity has no contract, undertaking,
agreement or arrangement with any Person to sell, transfer, distribute,
fractionalize, pledge, or otherwise dispose of to such Person or anyone else any
Common Shares; and such Acquiring Entity has no present plans or intentions to
enter into any such contract, undertaking or arrangement.
(b) Such Acquiring Entity has all necessary power and authority to
acquire the Common Shares and such acquisition will not contravene any law, rule
or regulation binding on it or any investment guideline or restriction
applicable to it.
(c) Except for filings required under the Securities Exchange Act of
1934, as amended, or applicable banking laws and regulations, no consent,
approval, order or authorization of, or declaration, filing or registration
with, any Government Authority or third party is required to be obtained or made
by such Acquiring Entity in connection with the
execution and delivery by such Acquiring Entity of this Agreement and each of
the other Transaction Documents to which it is a party, or the consummation of
the transactions contemplated hereby and thereby (including, without limitation
such Acquiring Entity's acquisition of Common Shares).
(d) Such Acquiring Entity acknowledges that (i) it is an institutional
"accredited investor" as defined in Rule 501(a)(1), (3) or (8) of Regulation D
promulgated under the Securities Act; (ii) it has such knowledge and experience
in financial and business matters in general that it has the capacity to
evaluate the merits and risks of an investment in the Common Shares and to
protect its own interest in connection with an investment in the Common Shares;
(iii) it is able to bear the economic risk of its investment in the Common
Shares for the applicable time periods specified in this Agreement; (iv) the
Company has made available to it the opportunity to evaluate the merits and
risks of its investment in the Company; (v) it has been afforded access to
information about the Company and the opportunity to ask questions of, and to
receive answers from, officers and directors of the Company concerning the
Company, its business and financial condition and any other matters relating to
the operation of the Company and the offering of the Common Shares; (vi) it has
not purchased the Common Stock as a result of any general solicitation or
advertising (as those terms are used in Regulation D of the Securities Act),
including advertisements, articles, notices or other communications published in
any newspaper, magazine or similar media or broadcast over radio or television,
or seminar or meeting who's attendees have been invited by general solicitation
or general advertising and (vii) it is not relying on any communication (written
or oral) of the Company, other than those written representations in this
Agreement, as investment advice or as a recommendation to purchase the Common
Shares.
(e) Such Acquiring Entity understands that the Common Shares have not
been registered under the Securities Act or the securities laws of any State.
Such Acquiring Entity agrees and represents that it will not voluntarily sell,
assign, pledge or otherwise dispose of any Common Shares or any portion thereof
unless, there is delivered to the Company evidence, satisfactory to the Company,
which may include an opinion of counsel reasonably acceptable to the Company, to
confirm that such Common Shares may be legally sold or disposed of without
registration or qualification under the applicable state or federal statutes, or
the Common Shares shall have been so registered or qualified and an appropriate
registration statement shall then be in effect; the Acquiring Entity understands
that the certificates representing the Common Shares will bear a Private
Placement Legend (as defined below) containing the foregoing restriction.
(f) Such Acquiring Entity is fully aware that the Common Shares are
being issued and sold to the Acquiring Entity in reliance upon the exemption
provided for in Section 4(2) of the Act and Rule 506 promulgated thereunder and
similar exemptions provided under state securities laws on the grounds that no
public offering is involved and that the representations, warranties and
agreements set forth in this Agreement are essential to the claiming of such
exemptions.
(g) Nothing in this Section 5 shall limit or modify the representations
and warranties of the Company in Section 4 of this Agreement or the right of the
Acquiring Entities to rely thereon.
5.2 Outstanding Indebtedness. Such Purchaser is the sole legal and
beneficial owner of and has good title to the Outstanding Indebtedness set forth
opposite such Purchaser's name on Schedule 1 hereto, subject to the footnotes
thereto, under the title "Pre-Conversion Outstanding Indebtedness", free and
clear of any Encumbrance, and such Outstanding Indebtedness is not subject to
any prior sale, transfer, assignment or participation by Seller or any agreement
to assign, convey, transfer or participate, in whole or in part.
5.3 No Brokers. Such Acquiring Entity has not employed, and is not
subject to the valid claim of, any broker, finder, consultant or other
intermediary in connection with the Transactions who is entitled to a fee or
commission in connection with the Transactions.
ARTICLE VI
COVENANTS
6.1 Legend. Each Acquiring Entity agrees to the placement on
certificates representing Common Shares of a legend (the "Private Placement
Legend") substantially as set forth below:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW, AND MAY
NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS.
The Private Placement Legend shall be removed from any such certificate if (i)
the securities represented thereby are sold pursuant to an effective
registration statement under the Securities Act, (ii) there is delivered to the
Company such satisfactory evidence, which may include an opinion of counsel, as
reasonably may be requested by the Company, to confirm that neither such legend
nor the restrictions on transfer set forth therein are required to ensure that
transfers of such securities will not violate the registration and prospectus
delivery requirements of the Securities Act, or (iii) the securities represented
thereby may be resold pursuant to Rule 144(k) promulgated under the Securities
Act. No other legends shall be placed on such certificates without the consent
of the Acquiring Entities.
ARTICLE VII
MISCELLANEOUS
7.1 Assignment. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by (i) the Company without the prior
written consent of each of the Acquiring Entities and (ii) any Acquiring Entity
without the prior written consent of the Company and each other Acquiring Entity
(other than to an Affiliate of any such Acquiring Entity). Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their permitted respective successors and assigns, and no
other Person shall have any right, benefit or obligation hereunder.
7.2 Notices. Unless otherwise provided herein, any notice, request,
instruction or other document to be given hereunder by any party to the other
shall be in writing and delivered by hand-delivery, registered first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery, as follows:
If to the Company:
Oneida Ltd.
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Shearman & Sterling LLP
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Purchaser:
At the address set forth below such Purchaser's name on Schedule 1
hereto.
With a copy to:
In the case of a Lender or a Noteholder (as indicated on
Schedule 1 hereto), to:
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other place and with such other copies as either party may designate
as to itself by written notice to the other.
All such notices, requests, instructions or other documents shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; when receipt is acknowledged by addressee, if by telecopier
transmission; and on the next Business Day if timely delivered to a nationally
recognized courier guaranteeing overnight delivery.
7.3 Choice of Law. This Agreement shall be construed, interpreted and
the rights of the parties determined in accordance with the internal laws of the
State of New York. Each of the parties to this Agreement hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of New York and the United States of America located in the County
of New York for any action or proceeding arising out of or relating to this
Agreement (and agrees not to commence any action or proceeding relating thereto
except in such courts), and further agrees that service of any process, summons,
notice or document by U.S. registered mail to its respective address set forth
in Section 7.2 hereof shall be effective service of process for any action or
proceeding brought against it in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any action or proceeding arising out of this Agreement in the courts of
the State of New York or the United States of America located in the County of
New York, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum.
7.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.5 Invalidity. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement or any
other such instrument.
7.6 Headings. The headings of the Articles and Sections herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
7.7 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall not invalidate the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable the remainder of such
provision in any other jurisdiction.
[Signature Pages to Follow]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized.
ONEIDA LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Title: Chief Executive Officer
JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------
Title: Managing Director
ANCHORAGE CAPITAL MASTER
OFFSHORE, LTD., as Lender
By: Anchorage Advisors, L.L.C., its advisor
By: Anchorage Advisors Management, L.L.C., its
managing member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------
Title: Member
BANK OF AMERICA, NA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Title: Assistant Vice President
Signature Pages to Securities Exchange Agreement
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Title: Director
CARGILL FINANCIAL SERVICES INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------
Title: Investment Manager
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Title: Cargill Value Investment
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Title: Vice President
BANK OF AMERICA STRATEGIC
SOLUTIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Title: Vice President
LOEWS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------
Title: Treasurer
Signature Pages to Securities Exchange Agreement
▇▇▇▇▇ EVENT TRADING
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------
Title: President
SPS HIGH YIELD LOAN TRADING
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------
Title: Managing Director
QUADRANGLE MASTER FUNDING LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------
Title: Member
▇▇▇▇▇▇▇ CAPITAL MANAGEMENT,
▇▇ ▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------
Title: President
STRATEGIC VALUE MASTER FUND, LTD.
By: Strategic Value Partners, L.L.C.
Its: Investment Advisor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------
Title: Authorized Signatory
Signature Pages to Securities Exchange Agreement
MAN MAC 3 LIMITED
Strategic Value Partners, L.L.C.
Its: Investment Advisor
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------
Title: Authorized Signatory
LITESPEED MASTER FUND LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------
Title: Managing Member
GENERAL ELECTRIC CAPITAL
CORPORATION*
By: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------
Title: Vice President
*This signatory is signing the Agreement solely for the purpose of making the
representations in Sections 5.1 and 5.3 and the agreements set forth in Section
6.1 hereof and shall not be deemed a Purchaser.
CHART HOLDING CORP.*
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------
Title: President
*This signatory is signing the Agreement solely for the purpose of making the
representations in Sections 5.1 and 5.3 and the agreements set forth in Section
6.1 hereof and shall not be deemed a Purchaser.
Signature Pages to Securities Exchange Agreement
The following identified Exhibits and Schedules to the foregoing Securities
Exchange Agreement are not filed with such Agreement. To the extent that any
such Exhibits and/or Schedules have not been otherwise filed with the Securities
& Exchange Commission, these Exhibits and/or Schedules will be furnished
supplementally to the Securities & Exchange Commission upon request.
Schedules:
----------
Schedule 4.2 - Capitalization of the Company
Exhibits:
---------
Exhibit A - Bylaws
Exhibit B - Certificate of Incorporation
Exhibit C - Form of Registration Rights Agreement
Exhibit E - Form of Amendment to Amended and Restated Rights Agreement
Schedule 1
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Name and Address of Common Shares to Conversion Pre-Conversion Post-Conversion
Financial Institution be Acquired(5) Amount Outstanding Outstanding
Indebtedness Indebtedness
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
Lenders:
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Anchorage Capital Master 2,194,644 $ 2,205,457.79 $ 16,995,565.64 $ 14,790,107.85
Offshore, Ltd.
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▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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(6)Bank of America, NA 2,600,738 $ 2,613,552.26 $ 20,140,398.55 $ 17,526,846.29
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
NC1-001-15-04
Attn: TLC 004
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Banc of America Strategic 1,765,403 $ 1,774,101.51 $ 13,671,473.90 $ 11,897,372.39
Solutions, Inc.
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▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
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Fleet National Bank 2,251,362 $ 2,262,455.04 $ 17,434,794.36 $ 15,172,339.32
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
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Barclays Bank PLC 3,007,994 $ 3,022,815.12 $ 23,294,235.30 $ 20,271,420.18
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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-----------------
(5) Subject to Section 2.1 of the Agreement.
(6) $11,497,942.14 of the Pre-Conversion Outstanding Indebtedness of Bank of
America, N.A. has been transferred as follows: (a) sale of participation in
$2,999,113.13 of the Pre-Conversion Outstanding Indebtedness to General
Electric Capital Corporation; and (b) sale of $8,498,829.01 of the
Pre-Conversion Outstanding Indebtedness to Anchorage Capital Master
Offshore, Ltd.
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Cargill Financial Services 1,549,107 $ 1,556,739.58 $ 11,996,452.51 $ 10,439,712.93
International, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank 4,510,476 $ 4,532,700.26 $ 34,929,620.94 $ 30,396,920.66
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Loews Corporation 645,652 $ 648,833.30 $ 5,000,000.00 $ 4,351,166.70
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
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Quadrangle Master Funding Ltd 3,180,912 $ 3,196,584.87 $ 24,633,329.26 $ 21,436,744.39
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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SPS High Yield Loan Trading 3,921,349 $ 3,940,670.70 $ 30,367,358.51 $ 26,426,687.81
c/o ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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(7)▇▇▇▇▇▇▇ Capital Management, 1,290,922 $ 1,297,282.98 $ 9,997,043.75 $ 8,699,760.77
▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇ Event Trading 645,461 $ 648,641.49 $ 4,998,521.88 $ 4,349,880.38
------------------------------------------------------------------------------------------------------------------------------
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Noteholders:
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
--------------
(7) $3,000,000.00 of the Pre-Conversion Outstanding Indebtedness of
▇▇▇▇▇▇▇ Capital Management, ▇▇ ▇▇ has been transferred sold to Bank of
America, N. A.
------------------------------------------------------------------------------------------------------------------------------
Strategic Value Master Fund Ltd.
c/o Strategic Value Partners LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ 548,804 $551,508.31 $4,250,000 $3,698,491.69
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Man Mac 3 Limited 161,413 $162,208.33 $1,250,000.00 $1,087,791.67
c/o Strategic Value Partners LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Litespeed Master Fund, Ltd. 817,462 $821,490.07 $6,330,517.13 $5,509,027.06
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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SPS High Yield Loan Trading 761,208 $764,958.41 $5,894,876.31 $5,129,917.90
c/o ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Exhibit D
Form of Receipt
---------------
August __, 2004
Reference is made to the Securities Exchange Agreement (the
"Agreement") dated as of August 9, 2004 among Oneida, Ltd. and each of the other
signatories thereof. Capitalized terms used and not defined herein shall have
the meanings assigned thereto in the Agreement.
The undersigned hereby acknowledges receipt of a certificate
representing _______ Common Shares purchased by it pursuant to the Agreement.
[PURCHASER NAME]
By:
----------------------------------
Name:
Title: