Exhibit 10.8
FMC CORPORATION
$355,000,000 10.25% Senior Secured Notes due 2009
PURCHASE AGREEMENT
New York, New York
October 9, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Banc of America Securities LLC
Wachovia Securities, Inc.
ABN AMRO Incorporated
NatCity Investments, Inc.
As Representatives of the several Initial
Purchasers named in Schedule I hereto
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
FMC Corporation (the "Company"), a Delaware corporation, proposes to
issue and sell to the several purchasers named in Schedule I hereto (the
"Initial Purchasers"), for whom you (the "Representatives") are acting as
representatives, $355,000,000 aggregate principal amount of its 10.25% Senior
Secured Notes due 2009 (the "Notes"). The Notes will be issued pursuant to an
indenture to be dated as of October 21, 2002 (the "Indenture"), between the
Company, the Guarantors (as defined herein) and Wachovia Bank, National
Association, as trustee (the "Trustee"). To the extent there are no additional
purchasers named in Schedule I hereto other than you, the term Representatives
as used herein shall mean you as the Initial Purchasers, and the terms
Representatives and Initial Purchasers shall mean either the singular or plural
as the context requires. The use of the neuter in this Agreement shall include
the feminine and masculine wherever appropriate. Certain terms used herein are
defined in Section 18 hereof.
All of our domestic subsidiaries that guarantee our obligations under
our credit facility (the "Guarantors", and collectively with the Company, the
"Issuers") will guarantee the notes on a senior basis (the "Guarantees"). The
Securities will have the benefit of the Security Documents (as defined in the
Indenture), pursuant to which the Issuers will, among other things, grant
second-priority liens on certain property as set forth in the Security
Documents. References herein to the "Securities" refer to the Notes and the
Guarantees.
The sale of the Securities to the Initial Purchasers will be made
without registration of the Securities under the Act in reliance upon exemptions
from the registration requirements of the Act. The net proceeds from the sale of
the Securities will be used as outlined in the section of the Final Memorandum
entitled "Use of Proceeds" and in connection with such outlined uses the Company
will enter into a debt reserve account control agreement and a restricted cash
account control agreement to be dated as of the Closing Date (together, the
"Control Agreements").
In connection with the sale of the Securities, the Issuers have
prepared a preliminary offering memorandum, dated September 25, 2002 (as amended
or supplemented at the Execution Time, including any and all exhibits thereto
and any information incorporated by reference therein, the "Preliminary
Memorandum"), and a final offering memorandum, dated October 9, 2002 (as amended
or supplemented at the Execution Time, in
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cluding any and all exhibits thereto and any information incorporated by
reference therein, the "Final Memorandum"). Each of the Preliminary Memorandum
and the Final Memorandum sets forth certain information concerning the Issuers
and the Securities. The Issuers hereby confirm that they have authorized the use
of the Preliminary Memorandum and the Final Memorandum, and any amendment or
supplement thereto, in connection with the offer and sale of the Securities by
the Initial Purchasers. Unless stated to the contrary, any references herein to
the terms "amend", "amendment" or "supplement" with respect to the Final
Memorandum shall be deemed to refer to and include any information filed under
the Exchange Act subsequent to the Execution Time which is incorporated by
reference therein.
Holders of the Securities (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement to be dated as of the Closing Date (the
"Registration Rights Agreement"), pursuant to which the Issuers will agree to
file one or more registration statements with the Securities and Exchange
Commission (the "Commission") providing for the registration under the Act of
the Securities or the Exchange Securities referred to (and as defined) in the
Registration Rights Agreement.
1. Representations and Warranties. The Issuers, jointly and severally,
represent and warrant to each Initial Purchaser as set forth below in this
Section 1.
(a) The Preliminary Memorandum, at the date thereof, did not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. At the Execution Time and on
the Closing Date, the Final Memorandum did not, and will not (and any
amendment or supplement thereto, at the date thereof and at the Closing
Date, will not), contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Issuers make no representation or warranty as
to the information contained in or omitted from the Preliminary Memorandum
or the Final Memorandum, or any amendment or supplement thereto, in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of the Initial Purchasers through the
Representatives specifically for inclusion therein.
(b) None of the Issuers or any of their respective Affiliates, or any
person acting on behalf of the Issuers or any of their respective
Affiliates, has, directly or indirectly, made offers or sales of any
security, or solicited offers to buy any security, under circumstances that
would require the registration of the Securities under the Act (it being
understood that no representation or warranty is made as to any actions of
the Initial Purchasers).
(c) None of the Issuers or any of their respective Affiliates, or any
person acting on behalf of the Issuers or any of their respective
Affiliates, has, directly or indirectly, engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States
(it being understood that no representation or warranty is made as to any
actions of the Initial Purchasers).
(d) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(e) None of the Issuers or any of their respective Affiliates, or any
person acting on behalf of the Issuers or any of their respective
Affiliates, has, directly or indirectly, engaged in any directed selling
efforts with respect to the Securities, and each of the Issuers and their
respective Affiliates has
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complied with the offering restrictions requirement of Regulation S (it
being understood that no representation or warranty is made as to any
actions of the Initial Purchasers). Terms used in this paragraph have the
meanings given to them by Regulation S.
(f) The Company has been advised by the NASD's Portal Market that the
Securities have been designated Portal-eligible securities in accordance
with the rules and regulations of the NASD.
(g) None of the Issuers is, and after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as
described in the Final Memorandum will be, an "investment company" within
the meaning of the Investment Company Act, without taking account of any
exemption arising out of the number of holders of the Company's securities.
(h) The Company is subject to and in compliance with, in all material
respects, the reporting requirements of Section 13 or Section 15(d) of the
Exchange Act.
(i) None of the Issuers has paid or agreed to pay to any person any
compensation for soliciting another to purchase any debt securities of the
Issuers (except as contemplated by this Agreement).
(j) None of the Issuers has taken, directly or indirectly, any action
designed to cause or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in the
stabilization or manipulation of the price of any security of any of the
Issuers to facilitate the sale or resale of the Securities.
(k) The information to be provided by the Company pursuant to Section
5(h) hereof will not, at the date thereof, contain any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(l) Each of the Company and its subsidiaries has been duly formed and
is validly existing in good standing under the laws of the jurisdiction in
which it is organized with full power and authority to own or lease, as the
case may be, and to operate its properties and conduct its business as
described in the Final Memorandum, and is duly qualified to do business as
a foreign entity and is in good standing under the laws of each
jurisdiction which requires such qualification, except where the failure to
satisfy any of the foregoing representations and warranties in this clause
(l), individually or in the aggregate, would not reasonably be expected to
have a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect").
(m) All the outstanding shares of capital stock or membership
interests of each subsidiary, as the case may be, have been duly and
validly authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth in the Final Memorandum, all outstanding
shares of capital stock or membership interests of the subsidiaries are
owned by the Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest or any other security
interests, claims, liens or encumbrances, except where the failure to have
such ownership would not reasonably be expected to have a Material Adverse
Effect.
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(n) The Company's authorized equity capitalization is as set forth in
the Final Memorandum, and the capital stock of the Company conforms in all
material respects to the description thereof contained in the Final
Memorandum.
(o) The statements set forth or referenced under the headings
"Management's Discussion and Analysis of Financial Condition and Results of
Operations", "Business--Environmental Laws and Regulations",
"Business--Legal Proceedings", "Certain Relationships and Related
Transactions," "Description of Other Indebtedness", "Description of the
Notes" and "Exchange Offer; Registration Rights" in the Final Memorandum
fairly summarize the matters therein described.
(p) This Agreement has been duly authorized, executed and delivered by
each Issuer and, assuming due authorization, execution and delivery thereof
by the Representatives, will constitute the legal, valid and binding
obligation of each Issuer, enforceable against each Issuer in accordance
with its terms (except that (i) the enforcement thereof may be subject to
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect and to
general principles of equity and (ii) any rights to indemnity or
contribution may be limited by applicable federal and state securities laws
and by public policy considerations).
(q) The Indenture has been duly authorized by each Issuer and,
assuming due authorization, execution and delivery thereof by the Trustee,
when executed and delivered by each Issuer, will constitute the legal,
valid and binding obligation of each Issuer, enforceable against each
Issuer in accordance with its terms (except that the enforcement thereof
may be subject to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from time to
time in effect and to general principles of equity). The Notes have been
duly authorized by the Company, and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid
for by the Initial Purchasers, will have been duly executed and delivered
by the Company and will constitute the legal, valid and binding obligations
of the Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms (except that (i) the
enforcement thereof may be subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity and (ii) the enforcement of provisions imposing liquidated damages,
penalties or an increase in interest rate upon the occurrence of certain
events may be limited in certain circumstances).
(r) Each Security Document has been duly authorized by each Issuer
party thereto and, assuming due authorization, execution and delivery
thereof by the other parties thereto, when executed and delivered by each
Issuer party thereto, will constitute the legal, valid and binding
obligation of each such Issuer, enforceable against each such Issuer in
accordance with its terms (except that the enforcement thereof may be
subject to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity).
(s) Each of the Control Agreements has been duly authorized by the
Company and, assuming due authorization, execution and delivery thereof by
the other parties thereto, when executed and delivered by the Company, will
constitute the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms (except that
the enforcement thereof may be subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity).
(t) Each of the Guarantees has been duly authorized by the applicable
Guarantor and when duly executed and delivered to the Trustee by such
Guarantor on the Closing Date will constitute
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the legal, valid and binding obligation of the applicable Guarantor
enforceable against such Guarantor in accordance with its terms (except
that the enforcement thereof may be subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity).
(u) The Registration Rights Agreement has been duly authorized by each
Issuer and, when executed and delivered by each Issuer, will constitute the
legal, valid and binding obligation of each Issuer, enforceable against
each Issuer in accordance with its terms (except that (i) the enforcement
thereof may be subject to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights generally
from time to time in effect and to general principles of equity and (ii)
any rights to indemnity or contribution may be limited by applicable
federal and state securities laws and by public policy considerations).
(v) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated in this Agreement, the Indenture, the Securities,
the Registration Rights Agreement, the Control Agreements or the Security
Documents, except such as will be obtained under the Act and the Trust
Indenture Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Initial Purchasers in the manner contemplated herein and
in the Final Memorandum and the Registration Rights Agreement.
(w) None of the execution and delivery by any Issuer, as the case may
be, of this Agreement, the Indenture, the Securities, the Registration
Rights Agreement, the Control Agreements or the Security Documents, the
issue and sale of the Securities, the consummation of the transactions
contemplated herein or therein or the fulfillment of the terms hereof or
thereof will conflict with, result in a breach or violation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, (i) the charter or by-laws
or other organizational or governing documents of the Company or any of its
subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any
of its subsidiaries is a party or bound or to which any property of the
Company or any of its subsidiaries is subject; or (iii) any statute, law,
rule, regulation, judgment, order or decree applicable to the Company or
any of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of their
respective properties.
(x) The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiaries included in the Final
Memorandum present fairly in all material respects the financial condition,
results of operations and cash flows of the Company as of the dates and for
the periods indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein); the selected
financial data set forth under the caption "Selected Consolidated Financial
Data" in the Final Memorandum fairly present, on the basis stated in the
Final Memorandum, the information included therein; the pro forma financial
data included in the Final Memorandum are based upon assumptions that
provide a reasonable basis for presenting the significant effects directly
attributable to the transactions and events described therein, the related
pro forma adjustments give appropriate effect to those assumptions, and the
pro forma adjustments reflect the proper application of those adjustments
to the historical financial statement amounts in the pro forma financial
data included in the Final Memorandum.
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(y) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or any of their respective property is
pending or threatened that (i) would reasonably be expected to have a
material adverse effect on the performance of this Agreement, the
Indenture, the Securities, the Registration Rights Agreement, the Control
Agreements or the Security Documents or the consummation of any of the
transactions contemplated hereby or thereby; or (ii) would reasonably be
expected to have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Memorandum (exclusive of any amendment or
supplement thereto).
(z) Each of the Company and its subsidiaries owns or leases all such
properties as are necessary to the conduct of its operations as presently
conducted, except where the failure to own or lease such properties would
not reasonably be expected to have a Material Adverse Effect.
(aa) None of the Company or any of its subsidiaries is in violation or
default of (i) any provision of its charter or by-laws or other
organizational or governing documents; (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which it
is a party or bound or to which its property is subject; or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable to it
or any of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over it or any such subsidiaries or any of their respective
properties, except in the case of clauses (i) as it relates to foreign
subsidiaries and clauses (ii) and (iii) as would not reasonably be expected
to have a Material Adverse Effect.
(bb) KPMG LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements and schedules
included in the Final Memorandum, are independent public accountants with
respect to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder.
(cc) There are no stamp or other issuance or transfer taxes or duties
or other similar fees or charges required to be paid in connection with the
execution and delivery of this Agreement or the issuance or sale by the
Issuers of the Securities to the Initial Purchasers.
(dd) Each of the Company and its subsidiaries has filed all foreign,
federal, state and local tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so to
file could not have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business and has paid all taxes
required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is being contested in
good faith or as would not reasonably be expected to have a Material
Adverse Effect, whether or not arising from transactions in the ordinary
course of business.
(ee) No labor problem or dispute with the employees of the Company or
any of its subsidiaries exists or is threatened or imminent, and there is
no existing or imminent labor disturbance by the employees of the Company
or any of its subsidiaries or by the principal suppliers, contractors or
customers of the Company or any of its subsidiaries, in each case, that
would reasonably be expected to have a Material Adverse Effect, whether or
not arising from transactions in the ordinary course of business.
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(ff) Each of the Company and its subsidiaries is insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; all policies of insurance insuring the Company or any of its
subsidiaries or their respective businesses, assets, employees, officers
and directors are in full force and effect; the Company and its
subsidiaries are in compliance with the terms of such policies and
instruments in all material respects; and there are no material claims by
the Company or any of its subsidiaries under any such policy or instrument
as to which any insurance company is denying liability or defending under a
reservation of rights clause; and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not reasonably be expected to have a Material
Adverse Effect, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Final
Memorandum (exclusive of any amendment or supplement thereto).
(gg) Neither any "significant subsidiary" of the Company within the
meaning of Rule 1-02(w) of Regulation S-X under the Exchange Act (a
"Material Subsidiary") nor any Guarantor is prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or
any other subsidiary of the Company, except as may be prescribed by
applicable law or as described in or contemplated by the Final Memorandum
(exclusive of any amendment or supplement thereto).
(hh) The Company and its subsidiaries own or possess adequate licenses
or other rights to use all patents, trademarks, service marks, trade names,
copyrights and know-how that are necessary to conduct their respective
businesses as described in the Final Memorandum. None of the Company or its
subsidiaries has received any notice of infringement of or conflict with
(or knows of any such infringement of or conflict with) asserted rights of
others with respect to any patents, trademarks, service marks, trade names,
copyrights or know-how that, if such assertion of infringement or conflict
were sustained, would reasonably be expected to have a Material Adverse
Effect, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Memorandum
(exclusive of any amendment or supplement thereto).
(ii) Each of the Company and its subsidiaries has good and marketable
title in fee simple to all its real property described as being owned by it
in the Final Memorandum and has valid rights to lease, license or use all
items of owned or leased real property, as applicable, described as being
used by it in the Final Memorandum (including, without limitation, all real
property to be mortgaged pursuant to the Security Documents), and good
title to all personal property described in the Final Memorandum as being
owned by it (including, without limitation, all property in which a
security interest is to be granted pursuant to the Security Documents), in
each case, free and clear of all liens, charges, encumbrances or
restrictions, except, in each case, as would be permitted by the Indenture,
the Control Agreements and the Security Documents or as otherwise described
in the Final Memorandum.
(jj) The Security Documents that constitute mortgages or deeds of
trust on real property, once executed and delivered in connection with the
sale of the Notes and when properly recorded and indexed with the proper
governmental authorities (together with payment of the appropriate filing
or recording fees and any applicable taxes) and the fixture filings when
delivered and filed as required by law to perfect a security interest with
respect to fixtures in the real property subject to each such mortgage or
deed of trust, will create, in favor of the Collateral Trustee (as defined
in the Security Documents) for
7
the benefit of the Secured Parties (as defined in the Security Documents),
including the Trustee on behalf of the holders of the Notes, (i) valid and
enforceable mortgage liens on such real property and (ii) perfected
security interests in such fixtures or other personal property. The
Security Documents, once executed and delivered in connection with the sale
of the Notes, will create a valid and enforceable security interest in the
personal property pursuant to which a security interest is to be granted
under the Security Documents and upon the filing of appropriate Uniform
Commercial Code financing statements and taking the other actions described
in the Security Documents, the security interest in personal property will
be perfected insofar as it may be perfected by filing and delivery of
possession to the Collateral Trustee under the Uniform Commercial Code.
(kk) None of the Company or any of its subsidiaries has any real
property, personal property or other assets that would constitute a
Principal Property (as defined in the Security Documents) that will not as
of the Closing Date constitute collateral under the Security Documents.
(ll) Each of the Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to have a Material Adverse Effect,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Memorandum
(exclusive of any amendment or supplement thereto).
(mm) The Company and each subsidiary maintains a system of internal
accounting controls over financial reporting and over safeguarding of
assets against unauthorized requisition, use or disposition which is
designed to provide reasonable assurance as to the reliability of financial
records and the safeguarding of such assets.
(nn) The Company and its subsidiaries are (i) in compliance with any
and all applicable foreign, federal, state and local laws and regulations,
and codes, orders, decrees, judgments or injunctions issued, promulgated,
approved or entered thereunder, relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"); (ii) have received and
are in compliance with all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective
businesses; (iii) have had no lien, charge, encumbrance or restriction
recorded under any Environmental Law with respect to any assets, facility
or property owned, operated, leased or controlled; and (iv) have not
received notice of any actual or potential liability for the investigation
or remediation of any disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants, except where such non-compliance
with Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Memorandum (exclusive of any
amendment or supplement thereto); except as set forth in the Final
Memorandum, to the best knowledge of the Company, neither the Company nor
any of its subsidiaries has been named as a "potentially responsible party"
under the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended.
(oo) In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including,
without limita-
8
tion, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws, or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties); on the basis of such review, the
Company has reasonably concluded that such associated costs and liabilities
would not, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Final Memorandum (exclusive of any amendment or supplement thereto).
(pp) Each of the Company and its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and the regulations and published interpretations
thereunder with respect to each "plan" (as defined in Section 3(3) of ERISA
and such regulations and published interpretations) in which employees of
the Company and its subsidiaries are eligible to participate and each such
plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations; the Company and its subsidiaries have not incurred any
unpaid liability to the Pension Benefit Guaranty Corporation (other than
for the payment of premiums in the ordinary course) or to any such plan
under Title IV of ERISA.
(qq) The statistical and market-related data included in the Final
Memorandum are based on or derived from sources which the Issuers believe
to be reliable and accurate.
(rr) None of the Issuers or any agent acting on their behalf has taken
or will take any action that might cause this Agreement or the sale of the
Securities to violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System, in each case as in effect, or as the same may
hereafter be in effect, on the Closing Date.
Any certificate signed by any officer of any Issuer and delivered to
the Representatives or counsel for the Initial Purchasers in connection with the
offering of the Securities shall be deemed a representation and warranty by such
Issuer, as to matters covered thereby, to each Initial Purchaser.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Initial Purchaser, and each Initial Purchaser agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
96.772% of the principal amount of the Notes thereof plus accrued interest, if
any, from October 21, 2002 to the Closing Date, the principal amount of Notes
set forth opposite such Initial Purchaser's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at 10:00 A.M., New York City time, on October 21, 2002, or at such
time on such later date (not later than October 28, 2002) as the Representatives
shall designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Initial Purchasers against payment by
the several Initial Purchasers through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer payable in same-day
funds to the account specified by the Company. Delivery of the Securities shall
be made through the facilities of The Depository Trust Company of New York, or
their designated custodian, unless the Representatives shall otherwise instruct.
4. Offering by Initial Purchasers. Each Initial Purchaser, severally
and not jointly, represents and warrants to and agrees with the Issuers that:
9
(a) It has not offered or sold, and will not offer or sell, any
Securities except (i) to those it reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Act) and that, in
connection with each such sale, it has taken or will take reasonable steps
to ensure that the purchaser of such Securities is aware that such sale is
being made in reliance on Rule 144A or (ii) in accordance with the
restrictions set forth in Exhibit A hereto.
(b) Neither it nor any person acting on its behalf has made or will
make offers or sales of the Securities in the United States by means of any
form of general solicitation or general advertising (within the meaning of
Regulation D) in the United States.
(c) It has (i) not offered or sold, and, prior to the expiry of six
months from the closing of the offering of the Securities will not offer or
sell, any Securities to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding, managing or
disposing of investments, whether as principal or agent, for purposes of
their businesses or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulation 1995, (ii) complied
and will comply with all applicable provisions of the Financial Services
and Markets ▇▇▇ ▇▇▇▇ (the "FSMA") and the Public Offers of Securities
Regulations 1995 with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom and (iii)
only communicated or caused to be communicated and will only communicate or
cause be communicated any invitation or inducement to engage in investment
activity (within the meaning of the FSMA) received by it in connection with
the issue or sale of any Securities in circumstances in which section 21(1)
of the FSMA does not apply to the Issuers.
5. Agreements. The Issuers, jointly and severally, agree with each
Initial Purchaser that:
(a) The Company will furnish to each Initial Purchaser and to counsel
for the Initial Purchasers, without charge, during the period referred to
in paragraph (c) below, as many copies of the Final Memorandum and any
amendments and supplements thereto as they may reasonably request.
(b) The Company will not amend or supplement the Final Memorandum,
other than by filing documents under the Exchange Act that are incorporated
by reference therein, without the prior written consent of the
Representatives; provided, however, that, prior to the completion of the
distribution of the Securities by the Initial Purchasers (as determined by
the Representatives), the Company will not file any document under the
Exchange Act that is incorporated by reference in the Final Memorandum
unless, prior to such proposed filing, the Company has furnished the
Representatives with a copy of such document for their review and the
Representatives have not reasonably objected to the filing of such
document. The Company will promptly advise the Representatives when any
document filed under the Exchange Act that is incorporated by reference in
the Final Memorandum shall have been filed with the Commission.
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers (as determined by the
Representatives), any event occurs as a result of which the Final
Memorandum, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it should be necessary to amend
or supplement the Final Memorandum to comply with applicable law, the
Company promptly (i) will notify the Representatives of any such event;
(ii) subject to the requirements of paragraph (b) of this Section 5, will
prepare an amendment or supplement that will correct such statement or
omission or effect such compliance; and
10
(iii) will supply any supplemented or amended Final Memorandum to the
several Initial Purchasers and counsel for the Initial Purchasers without
charge in such quantities as they may reasonably request.
(d) The Company will arrange, if necessary, for the qualification of
the Securities for sale by the Initial Purchasers under the laws of such
jurisdictions as the Initial Purchasers may designate and will maintain
such qualifications in effect so long as required for the sale of the
Securities; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject. The Company will promptly
advise the Representatives of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose.
(e) The Issuers will not, and will not permit any of their respective
Affiliates to, resell any Securities that have been acquired by any of
them.
(f) None of the Issuers nor any of their respective Affiliates, nor
any person acting on its or their behalf will, directly or indirectly, make
offers or sales of any security, or solicit offers to buy any security,
under circumstances that would require the registration of the Securities
under the Act.
(g) None of the Issuers nor any of their respective Affiliates, nor
any person acting on its or their behalf will engage in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States.
(h) So long as any of the Securities are "restricted securities"
within the meaning of Rule 144(a)(3) under the Act, the Company, will,
during any period in which it is not subject to and in compliance with
Section 13 or 15(d) of the Exchange Act or it is not exempt from such
reporting requirements pursuant to and in compliance with Rule 12g3-2(b)
under the Exchange Act, provide to each holder of such restricted
securities and to each prospective purchaser (as designated by such holder)
of such restricted securities, upon the request of such holder or
prospective purchaser, any information required to be provided by Rule
144A(d)(4) under the Act. This covenant is intended to be for the benefit
of the holders, and the prospective purchasers designated by such holders,
from time to time of such restricted securities.
(i) None of the Issuers, nor any of their respective Affiliates, nor
any person acting on its or their behalf will engage in any directed
selling efforts with respect to the Securities, and each of them will
comply with the offering restrictions requirement of Regulation S. Terms
used in this paragraph have the meanings given to them by Regulation S.
(j) The Issuers will cooperate with the Representatives and use their
respective best efforts to permit the Securities to be eligible for
clearance and settlement through The Depository Trust Company.
(k) None of the Issuers will for a period of 90 days following the
Execution Time, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
offer, sell or contract to sell, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by any Issuer or
any Affili-
11
ate of any Issuer or any person in privity with any Issuer or any Affiliate
of any Issuer), directly or indirectly, or announce the offering of, any
debt securities issued or guaranteed by any Issuer (other than the
Securities).
(l) The Issuers will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of any Issuer to facilitate
the sale or resale of the Securities.
(m) The Issuers (i) shall use their respective best efforts to cause
the use of proceeds from the Securities to be consummated in a manner
consistent in all material respects with the description thereof in the
Final Memorandum and (ii) cause the Securities to be secured by perfected
second priority liens (except as provided for in the Indenture and the
Security Documents) on the properties and assets of the Company and its
subsidiaries to the extent and in the manner provided for in the Indenture
and the Security Documents and as described in the Final Memorandum.
(n) The Issuers, jointly and severally, agree to pay the costs and
expenses relating to the following matters: (i) the preparation of the
Indenture and the Registration Rights Agreement and the Security Documents,
the issuance of the Securities and the fees of the Trustee and the
Collateral Trustee; (ii) the preparation, printing or reproduction of the
Preliminary Memorandum and Final Memorandum and each amendment or
supplement to either of them; (iii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Preliminary Memorandum and Final
Memorandum, and all amendments or supplements to either of them, as may, in
each case, be reasonably requested for use in connection with the offering
and sale of the Securities; (iv) the preparation, printing, authentication,
issuance and delivery of certificates for the Securities, including any
stamp or transfer taxes in connection with the original issuance and sale
of the Securities; (v) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of
the Securities; (vi) any registration or qualification of the Securities
for offer and sale under the securities or blue sky laws of the several
states (including filing fees and the reasonable fees and expenses of
counsel for the Initial Purchasers relating to such registration and
qualification); (vii) admitting the Securities for trading in The Portal
Market; (viii) the transportation and other expenses incurred by or on
behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local
and special counsel) for the Company; and (x) all other costs and expenses
incident to the performance by the Issuers of their respective obligations
hereunder. The Initial Purchasers will pay the fees and expenses of their
own counsel (except as set forth in clause (vi) of the preceding sentence
and Section 7 hereof).
(o) The Issuers will pay any stamp or other issuance or transfer taxes
or duties or other similar fees or charges required to be paid in
connection with the execution and delivery of this Agreement or the
issuance or sale by the Company of the Securities.
6. Conditions to the Obligations of the Initial Purchasers. The
obligations of the Initial Purchasers to purchase the Notes shall be subject to
the accuracy of the representations and warranties on the part of the Issuers
contained herein at the Execution Time and the Closing Date, to the accuracy of
the statements of the Issuers made in any certificates pursuant to the
provisions hereof, to the performance by the Issuers of their respective
obligations hereunder and to the following additional conditions:
12
(a) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇ & Bockius
LLP, counsel for the Company, to furnish to the Representatives its
opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) each of the Company and the subsidiaries listed on an
attached schedule (individually, a "Subsidiary" and collectively, the
"Subsidiaries") is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is organized, with full
power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the
Final Memorandum, and is duly qualified to do business as a foreign
entity and is in good standing under the laws of each jurisdiction
listed on the attached schedule;
(ii) the Company's authorized equity capitalization is as set
forth in the Final Memorandum;
(iii) the Indenture has been duly authorized, executed and
delivered by each Issuer, and constitutes a legal, valid and binding
instrument of each Issuer enforceable against each Issuer in
accordance with its terms (subject, as to the enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity); the Notes have been duly
and validly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and
paid for by the Initial Purchasers under this Agreement, will
constitute legal, valid, binding and enforceable obligations of the
Company entitled to the benefits of the Indenture (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity); the Guarantees have been duly authorized, executed and
delivered by each Guarantor and constitute the legal, valid and
binding obligation of each Guarantor enforceable against each
Guarantor in accordance with its terms (subject, as to the enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity); the
Registration Rights Agreement has been duly authorized, executed and
delivered by each Issuer and constitutes a legal, valid, binding and
enforceable instrument of each Issuer (subject, as to the enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity); and the
statements set forth under the heading "Description of the Notes" and
"Exchange Offer; Registration Rights" in the Final Memorandum, insofar
as such statements purport to summarize certain provisions of the
Securities, the Security Documents, the Indenture and the Registration
Rights Agreement, provide a fair summary of such provisions;
(iv) each Security Document has been duly authorized, executed
and delivered by each Issuer party thereto, and constitutes a legal,
valid and binding instrument of each Issuer party thereto enforceable
against each Issuer party thereto in accordance with its terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity); and the statements set forth under the headings
"Summary--The Offering--Collateral," "Summary--The
Offering--Collateral Trust Agreement" and "Description of the
Notes--Security" in the Final Memorandum, insofar as such statements
purport to de-
13
scribe certain provisions of the Security Documents, provide a fair
description of such provisions;
(v) this Agreement has been duly authorized, executed and
delivered by each Issuer;
(vi) each Control Agreement has been duly authorized, executed
and delivered by the Company, and constitutes a legal, valid and
binding instrument of the Company enforceable against the Company in
accordance with its terms (subject, as to the enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity);
(vii) each Issuer has all requisite corporate or other
organizational power and authority and has taken all requisite
corporate or other organizational action, and has received and is in
compliance with all governmental, judicial and other authorizations,
approvals and orders, necessary to enter into and perform its
obligations under this Agreement, the Indenture, the Control
Agreements, the Registration Rights Agreement and the Securities, and
no consent, approval, authorization, filing with or order of any court
or governmental agency or body is required to be obtained or made by
any Issuer in connection with the transactions contemplated herein or
in the Indenture, the Security Documents, the Control Agreements and
the Registration Rights Agreement, except such as will be obtained
under the Act and the Trust Indenture Act and such as may be required
under the blue sky or securities laws of any jurisdiction in
connection with the purchase and sale of the Securities by the Initial
Purchasers in the manner contemplated in this Agreement and the Final
Memorandum and the Registration Rights Agreement and such other
approvals (specified in such opinion), if any, as have been obtained;
(viii) neither the execution and delivery of the Indenture, this
Agreement, the Security Documents, the Control Agreements or the
Registration Rights Agreement, the issue and sale of the Securities,
nor the consummation of any other of the transactions herein or
therein contemplated, nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or
asset of the Company or its subsidiaries pursuant to, (i) the charter
or by-laws or other organizational or governing documents of the
Company or the Subsidiaries; (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument known to such counsel to which the Company or any of its
Subsidiaries is a party or bound or to which its respective property
is subject; (iii) any statute, law, rule or regulation; or (iv) any
judgment, order or decree known to such counsel applicable to the
Company or the Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company, such Subsidiaries or
any of their respective properties;
(ix) assuming the accuracy of the representations and warranties
and compliance with the agreements contained herein, no registration
of the Securities under the Act, and no qualification of an indenture
under the Trust Indenture Act, is required for the offer and sale by
the Initial Purchasers of the Securities in the manner contemplated by
this Agreement; and
(x) No Issuer is or, after giving effect to the offering and sale
of the Securities and the application of the proceeds thereof as
described in the Final Memorandum, will be an "in-
14
vestment company" as defined in the Investment Company Act without
taking account of any exemption arising out of the number of holders
of the Company's securities.
In rendering such opinion, such counsel may (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Pennsylvania or the State of New York, the General Corporation Law of
the State of Delaware or the Federal laws of the United States, to the
extent it deems proper obtain the opinion of other counsel of good standing
who it believes to be reliable and who is satisfactory to counsel for the
Initial Purchasers; and (B) as to matters of fact, to the extent it deems
proper, rely on certificates of responsible officers of the Company and
public officials. Any opinions of other counsel obtained pursuant to (A)
shall be addressed directly to the Initial Purchasers. References to the
Final Memorandum in this Section 6(a) include any amendment or supplement
thereto at the Closing Date.
Such counsel shall also have furnished to the Representatives its
written statement to the effect that, based upon such counsel's
participation in the preparation of the Offering Memorandum and review and
discussion of the contents thereof, but without independent check or
verification, nothing has come to such counsel's attention that causes such
counsel to believe that at the Execution Time and on the Closing Date the
Final Memorandum contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (in each case, other than the financial statements and
other financial information contained therein, as to which such counsel
need express no belief).
(a)(2) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
general counsel for the Company, to furnish to the Representatives her
opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) to the knowledge of such counsel, except as disclosed in the
Final Memorandum, there is no pending or threatened action, suit or
proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its
subsidiaries or its or their property that has a reasonable
probability, singly or in the aggregate, taking into account
exhaustion of all appeals, of having a Material Adverse Effect; and
the statements in the Final Memorandum under the heading
"Business--Legal Proceedings" fairly summarize the matters therein
described.
(ii) neither the execution and delivery of the Indenture, this
Agreement, the Security Documents, the Control Agreements or the
Registration Rights Agreement, the issue and sale of the Securities,
nor the consummation of any other of the transactions herein or
therein contemplated, nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or
asset of the Company or its subsidiaries pursuant to, (i) the charter
or by-laws or other organizational or governing documents of the
Company, any of the Guarantors or any of the Material Subsidiaries;
(ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument known to such counsel to which the
Company, any of the Guarantors or any of the Material Subsidiaries is
a party or bound or to which its respective property is subject; (iii)
any statute, law, rule or regulation; or (iv) any judgment, order or
decree known to such counsel applicable to the Company, any of the
Guarantors or any of the Material Subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator
or other authority having ju-
15
risdiction over the Company, such Guarantors, such Material
Subsidiaries or any of their respective properties;
In rendering such opinion, such counsel may (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Pennsylvania, the General Corporation Law of the State of Delaware or
the Federal laws of the United States, to the extent she deems proper
obtain the opinion of other counsel of good standing who she believes to be
reliable and who is satisfactory to counsel for the Initial Purchasers; and
(B) as to matters of fact, to the extent she deems proper, rely on
certificates of responsible officers of the Company and public officials.
Any opinions of other counsel obtained pursuant to (A) shall be addressed
directly to the Initial Purchasers. References to the Final Memorandum in
this Section 6(a) include any amendment or supplement thereto at the
Closing Date.
Such counsel shall also state that she has no reason to believe that
at the Execution Time and on the Closing Date the Final Memorandum
contained or contains any untrue statements of a material fact or omitted
or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements and other
financial information contained therein, as to which such counsel need
express no belief).
(b) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with respect
to the issuance and sale of the Securities, the Indenture, the Registration
Rights Agreement, the Final Memorandum (as amended or supplemented at the
Closing Date) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(c) The Company shall have furnished to the Representatives a
certificate of the Company, signed by its general counsel and any of the
chief financial officer, the treasurer and the principal accounting officer
of the Company, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Final Memorandum, any
amendment or supplement to the Final Memorandum and this Agreement and
that:
(i) the representations and warranties of the Issuers in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date,
and each Issuer has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date; and
(ii) since the date of the most recent financial statements
included in the Final Memorandum (exclusive of any amendment or
supplement thereto), there has been no material adverse change in the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated by the Final
Memorandum (exclusive of any amendment or supplement thereto).
(d) At the Execution Time and at the Closing Date, the Company shall
have requested and caused KPMG LLP to furnish to the Representatives
comfort letters, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the Representatives.
16
(e) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Final Memorandum (exclusive of any
amendment or supplement thereto), there shall not have been (i) any change
or decrease specified in the letter or letters referred to in paragraph (d)
of this Section 6; or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Final Memorandum (exclusive of any amendment or supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is,
in the sole judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to market the Securities as contemplated
by the Final Memorandum (exclusive of any amendment or supplement thereto).
(f) The Issuers and the Trustee shall have entered into the Indenture
and the Representatives shall have received counterparts, conformed as
executed, thereof.
(g) The Issuers and the Initial Purchasers shall have entered into the
Registration Rights Agreement and the Representatives shall have received
counterparts, conformed as executed, thereof.
(h) The Company shall have entered each of the Control Agreements and
the Representatives shall have received counterparts, conformed as
executed, thereof.
(i) The Issuers shall have caused the Representatives to have received
legal opinions from Issuer counsel reasonably acceptable to the
Representatives relating to the security interests in real and personal
property granted pursuant to the Security Documents. Such legal opinions
shall include matters commonly covered in similar transactions.
(j) The Issuers, the Collateral Trustee and the Trustee shall have
entered into the Security Documents and the Representatives shall have
received counterparts, conformed as executed, thereof. The Issuers shall
have delivered to the Collateral Trustee all property and filings required
to be required to be delivered thereto pursuant to the Security Documents
which, in each case, shall be in form and substance acceptable to the
Representatives and the Representatives shall have received copies thereof.
(k) The Notes shall be eligible for clearance and settlement through
The Depository Trust Company.
(l) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of any Issuers' debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(m) The Issuers shall have entered into the New Credit Agreement as
described under "Description of Other Indebtedness" in the Final Memorandum
and all conditions to the initial funding thereof shall have been satisfied
or waived. All subsidiaries of the Company that have guaranteed the New
Credit Agreement as of the Closing Date shall guarantee the Notes and shall
be parties to this Agreement, the Indenture and the Registration Rights
Agreement.
17
(n) Prior to the Closing Date, the Issuers shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Initial Purchasers,
this Agreement and all obligations of the Initial Purchasers hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Representatives.
Notice of such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the office of counsel for the Initial Purchasers, at ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other location in New York, New
York as the Initial Purchasers shall direct, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Initial Purchasers set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Sections 10(i), (ii) or (iii) hereof or because of
any refusal, inability or failure on the part of the Issuers to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Initial Purchasers, the Issuers will reimburse the Initial
Purchasers severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. Indemnification and Contribution. (a) The Issuers, jointly and
severally, agree to indemnify and hold harmless each Initial Purchaser, the
directors, officers, employees and agents of each Initial Purchaser and each
person who controls any Initial Purchaser within the meaning of either the Act
or the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Memorandum, the Final Memorandum (or in any supplement or amendment
thereto) or any information provided by the Issuers to any holder or prospective
purchaser of Securities pursuant to Section 5(h), or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Issuers will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made in the Preliminary
Memorandum or the Final Memorandum, or in any amendment thereof or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Issuers by or on behalf of any Initial Purchasers through the
Representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Issuers may otherwise have.
(b) Each Initial Purchaser severally and not jointly agrees to
indemnify and hold harmless the Issuers, each of their respective directors,
each of their respective officers, and each person who controls the Issuers
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Issuers to each Initial Purchaser, but only
with reference to written information relating to such Initial Purchaser
furnished to the Issuers by or on behalf of such Initial Purchaser through the
Representatives specifi-
18
cally for inclusion in the Preliminary Memorandum or the Final Memorandum (or in
any amendment or supplement thereto). This indemnity agreement will be in
addition to any liability which any Initial Purchaser may otherwise have. The
Issuers acknowledge that the statements set forth in the last paragraph of the
cover page regarding the delivery of the Notes, the disclosure on page (i)
concerning stabilization, syndicate covering transactions and penalty bids and,
under the heading "Plan of Distribution", the paragraph related to
stabilization, syndicate covering transactions and penalty bids in the
Preliminary Memorandum and the Final Memorandum, constitute the only information
furnished in writing by or on behalf of the Initial Purchasers for inclusion in
the Preliminary Memorandum or the Final Memorandum (or in any amendment or
supplement thereto).
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Issuers and the Initial Purchasers agree
to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Issuers
and one or more of the Initial Purchasers may be subject in such proportion as
is appropriate to reflect the relative benefits received by the Issuers on the
one hand and by the Initial Purchasers on the other from the offering of the
Securities; provided, however, that in no case shall any Initial Purchaser
(except as may be provided in any agreement among the Initial Purchasers
relating to the offering of the Securities) be responsible for any amount in
excess of the placement fee applicable to the Securities purchased by such
Initial Purchaser hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Issuers and the Initial
Purchasers shall contribute in such proportion as is appropriate to reflect not
only such relative
19
benefits but also the relative fault of the Issuers on the one hand and of the
Initial Purchasers on the other in connection with the statements or omissions
which resulted in such Losses, as well as any other relevant equitable
considerations. Benefits received by the Issuers shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Initial Purchasers shall be deemed to be equal
to the total placement fee, as set forth on the cover of the Final Memorandum
and in the purchase agreement relating to the Securities, respectively. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Issuers on the one hand or the Initial Purchasers on the other, the intent of
the parties and their relative knowledge, information and opportunity to correct
or prevent such untrue statement or omission. The Issuers and the Initial
Purchasers agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Initial Purchaser within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an Initial
Purchaser shall have the same rights to contribution as such Initial Purchaser,
and each person who controls any Issuer within the meaning of either the Act or
the Exchange Act and each officer and director of any Issuer shall have the same
rights to contribution as the Issuers, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. Default by an Initial Purchaser. If any one or more Initial
Purchasers shall fail to purchase and pay for any of the Notes agreed to be
purchased by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Initial Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the amount of Notes set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Notes set forth opposite the names of all the remaining Initial Purchasers) the
Notes which the defaulting Initial Purchaser or Initial Purchasers agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Notes which the defaulting Initial Purchaser or Initial Purchasers
agreed but failed to purchase shall exceed 10% of the aggregate amount of Notes
set forth in Schedule I hereto, the remaining Initial Purchasers shall have the
right to purchase all, but shall not be under any obligation to purchase any, of
the Notes, and if such nondefaulting Initial Purchasers do not purchase all the
Notes, this Agreement will terminate without liability to any nondefaulting
Initial Purchaser or the Issuers. In the event of a default by any Initial
Purchaser as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Final Memorandum or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Initial Purchaser of its liability, if
any, to the Issuers or any nondefaulting Initial Purchaser for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Notes, if at any time prior to such time (i)
trading in any of the Company's securities shall have been suspended by the
Commission or the New York Stock Exchange; (ii) trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange; (iii) a banking moratorium
shall have been declared either by Federal or New York State authorities; or
(iv) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the sole judgment of the Representatives, impracticable or inadvisable to
proceed with the offering or delivery of the Notes as contemplated by the Final
Memorandum (exclusive of any amendment or supplement thereto).
20
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Issuers or their respective officers and of the Initial Purchasers set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Initial Purchasers
or the Issuers or any of the officers, directors or controlling persons referred
to in Section 8 hereof, and will survive delivery of and payment for the Notes.
The provisions of Sections 5(n), 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney General Counsel (fax no.:
(▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; with
a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; or, if sent to the Issuers, will be mailed, delivered
or telefaxed to the FMC Corporation General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇)
and confirmed to the General Counsel, FMC Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.,
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and,
except as expressly set forth in Section 5(h) hereof, no other person will have
any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreement, (i) the Company
acknowledges that it is qualified to do business in the State of New York, (ii)
each Guarantor irrevocably designates and appoints the Company as its authorized
agent upon which process may be served in any suit or proceeding arising out of
or relating to this Agreement that may be instituted in any federal or state
court in the State of New York or brought under federal or state securities
laws, and the Company accepts such designation, (iii) the Company and each
Guarantor submits to the nonexclusive jurisdiction of any such court in any such
suit or proceeding, and agrees that service of process upon its authorized
agent, existing due to the facts mentioned in clause (i) or specifically
mentioned in clause (ii), as applicable, and written notice of said service to
it shall be deemed in every respect effective service of process upon it in any
such suit or proceeding. The Company and each Guarantor further agrees to take
any and all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such qualifications
or designations and appointments in full force and effect so long as any of the
Securities shall be outstanding.
18. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
21
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in The City of New York.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean, the date and time that this Agreement is
executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
you and the several Initial Purchasers.
Very truly yours,
FMC Corporation
By:
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title:Treasurer
Intermountain Research and Development Corporation
FMC Asia-Pacific, Inc.
FMC Overseas, Ltd.
FMC Funding Corporation
FMC WFC I, Inc.
FMC Defense Corp.
FMC WFC II, Inc.
FMC Properties LLC
FMC Defense NL, L.L.C.
FMC WF I NL, L.L.C.
FMC Idaho LLC
By:
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title:Authorized Signatory
S-1
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Banc of America Securities LLC
Wachovia Securities, Inc.
ABN AMRO Incorporated
NatCity Investments, Inc.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By
-------------------------------------
Name:
Title:
For themselves and the other several Initial
Purchasers named in Schedule I to
the foregoing Agreement.
S-2
SCHEDULE I
Principal Amount of
Notes
Initial Purchasers To Be Purchased
------------------ -------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. .......................... US$ 133,125,000
Banc of America Securities LLC...................... 133,125,000
Wachovia Securities, Inc. .......................... 44,375,000
ABN AMRO Incorporated............................... 35,500,000
NatCity Investments, Inc. .......................... 8,875,000
-----------
Total............................................ US$ 355,000,000
===========
EXHIBIT A
Selling Restrictions for Offers and
Sales outside the United States
1. (a) The Notes have not been and will not be registered under the
Act and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S under
the Act or pursuant to an exemption from the registration requirements of the
Act. Each Initial Purchaser represents and agrees that, except as otherwise
permitted by Section 4(a)(i) of the Agreement to which this is an exhibit, it
has offered and sold the Notes, and will offer and sell the Notes, (i) as part
of their distribution at any time; and (ii) otherwise until 40 days after the
later of the commencement of the offering and the Closing Date, only in
accordance with Rule 903 of Regulation S under the Act. Accordingly, each
Initial Purchaser represents and agrees that neither it, nor any of its
Affiliates nor any person acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the Notes, and that it
and they have complied and will comply with the offering restrictions
requirement of Regulation S. Each Initial Purchaser agrees that, at or prior to
the confirmation of sale of Notes (other than a sale of Notes pursuant to
Section 4(a)(i) of the Agreement to which this is an exhibit), it shall have
sent to each distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases Notes from it during the distribution
compliance period a confirmation or notice to substantially the following
effect:
"The Notes covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Act") and may not be
offered or sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days
after the later of the commencement of the offering and
October 21, 2002, except in either case in accordance with
Regulation S or Rule 144A under the Act. Terms used above
have the meanings given to them by Regulation S."
(b) Each Initial Purchaser also represents and agrees that it has not
entered and will not enter into any contractual arrangement with any
distributor with respect to the distribution of the Notes, except with its
Affiliates or with the prior written consent of the Company.
(c) Terms used in this section have the meanings given to them by
Regulation S.
2. Each Initial Purchaser represents and agrees that it has (i) not
offered or sold, and, prior to the expiry of six months from the closing of the
offering of the Securities will not offer or sell, any Securities to persons in
the United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments, whether as principal
or agent, for purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations 1995,
(ii) complied and will comply with all applicable provisions of the Financial
Services and Markets ▇▇▇ ▇▇▇▇ (the "FSMA") and the Public Offers of Securities
Regulations 1995 with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom and (iii) only
communicated or caused to be communicated and will only communicate or cause be
communicated any invitation or inducement to engage in investment activity
(within the meaning of the FSMA) received by it in connection with the issue or
sale of any Securities in circumstances in which section 21(1) of the FSMA does
not apply to the Issuers.