KRONOS INTERNATIONAL, INC.
(euro)90,000,000
8 7/8% Senior Secured Notes due 2009
PURCHASE AGREEMENT
November 18, 2004
DEUTSCHE BANK AG LONDON
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇
Ladies and Gentlemen:
Kronos International, Inc., a Delaware corporation (the "Company"),
hereby confirms its agreement with you (the "Initial Purchaser"), as set forth
below.
1. The Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Initial Purchaser
(euro)90,000,000 aggregate principal amount of its 8 7/8% Senior Secured Notes
due 2009, Series A (the "Notes"). The Notes will be part of a series of notes
issued initially on June 28, 2002 and are to be issued under the indenture (the
"Indenture") dated as of June 28, 2002 by and between the Company and The Bank
of New York, as Trustee (the "Trustee").
The Notes will be offered and sold to the Initial Purchaser without
being registered under the Securities Act of 1933, as amended (the "Act"), in
reliance on exemptions therefrom.
In connection with the sale of the Notes, the Company has prepared an
offering memorandum dated November 18, 2004, which includes as a part thereof
the Company's Annual Report on Form 10-K for the year ended December 31, 2003
and Quarterly Report on Form 10-Q for the quarter ended September 30, 2004 (the
"Offering Memorandum"), setting forth or including a description of the terms of
the Notes, the terms of the offering of the Notes, a description of the Company
and any material developments relating to the Company occurring after the date
of the most recent historical financial statements included therein.
The Initial Purchaser and its direct and indirect transferees of the
Notes will be entitled to the benefits of the Registration Rights Agreement,
substantially in the form attached hereto as Exhibit C (the "Registration Rights
Agreement"), pursuant to which the Company has agreed, among other things, to
file a registration statement (the "Registration Statement") with the Securities
and Exchange Commission (the "Commission") registering the Notes or the Exchange
Notes (as defined in the Registration Rights Agreement) under the Act.
The Initial Purchaser and its direct and indirect transferees of the
Notes will also be entitled to the benefits, and otherwise subject to the terms,
of the Security Documents (as defined in the Indenture) pursuant to which the
Company has, among other things, granted a senior security interest in the
Collateral (as defined in the Indenture), subject to certain exceptions and
otherwise in accordance with the terms of the Indenture.
2. Representations and Warranties. The Company represents and warrants
to and agrees with the Initial Purchaser that:
(a) Neither the Offering Memorandum nor any amendment or
supplement thereto as of the date thereof and at all times subsequent
thereto up to the Closing Date (as defined in Section 3 below)
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and
warranties set forth in this Section 2(a) do not apply to statements or
omissions made in reliance upon and in conformity with information
relating to the Initial Purchaser furnished to the Company in writing
by the Initial Purchaser expressly for use in the Offering Memorandum
or any amendment or supplement thereto.
(b) As of the Closing Date: the Company will have the
authorized, issued and outstanding capitalization set forth in the
Offering Memorandum; all of the material subsidiaries of the Company
are listed in Schedule 1A attached hereto (each, a "Subsidiary" and
collectively, the "Subsidiaries"); all of the outstanding shares of
capital stock of the Company and the Subsidiaries have been, and as of
the Closing Date will be, duly authorized and validly issued, are fully
paid and nonassessable and were not issued in violation of any
preemptive or similar rights; all of the outstanding shares of capital
stock of the Company and of each of the Subsidiaries will be free and
clear of all liens, encumbrances, equities and claims or restrictions
on transferability (other than those imposed by the Act, by the
securities or "Blue Sky" laws of certain jurisdictions, by the Security
Documents or, with respect to Subsidiaries other than those the capital
stock of which is pledged pursuant to the Security Documents, by the
Credit Agreement (as defined in the Offering Memorandum)) or voting;
except as set forth in the Offering Memorandum, there are no (i)
options, warrants or other rights to purchase, (ii) agreements or other
obligations to issue or (iii) other rights to convert any obligation
into, or exchange any securities for, shares of capital stock of or
ownership interests in the Company or any of the Subsidiaries
outstanding. Except for the Subsidiaries and the additional
subsidiaries listed on Schedule 1B attached hereto or as disclosed in
the Offering Memorandum, the Company does not own, directly or
indirectly, any shares of capital stock or any other equity or
long-term debt securities or have any equity interest in any firm,
partnership, joint venture or other entity.
(c) Each of the Company and the Subsidiaries is duly
incorporated or formed, validly existing and in good standing under the
laws of its respective jurisdiction of incorporation or formation and
has all requisite corporate or partnership power and authority to own
its properties and conduct its business as now conducted and as
described in the Offering Memorandum; each of the Company and the
Subsidiaries is duly qualified to do business as a foreign corporation
or partnership, as applicable, in good standing in all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not, individually or in the aggregate,
have a material adverse effect on the business, condition (financial or
otherwise) or results of operations of the Company and the
Subsidiaries, taken as a whole (any such event, a "Material Adverse
Effect").
(d) The Company has all requisite corporate power and
authority to execute, deliver and perform each of its obligations under
the Notes, the Exchange Notes and the Private Exchange Notes (as
defined in the Registration Rights Agreement). The Notes, when issued,
will be in the form contemplated by the Indenture. The Notes, the
Exchange Notes and the Private Exchange Notes have each been duly and
validly authorized by the Company and, when executed by the Company and
authenticated by the Trustee in accordance with the provisions of the
Indenture and, in the case of the Notes, when delivered to and paid for
by the Initial Purchaser in accordance with the terms of this
Agreement, will constitute valid and legally binding obligations of the
Company, entitled to the benefits of the Indenture, and enforceable
against the Company in accordance with their terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought.
(e) The Indenture (including provisions that are incorporated
therein) meets the requirements for qualification under the Trust
Indenture Act of 1939, as amended (the "TIA"). The execution and
delivery of the Indenture have been duly and validly authorized by the
Company and (assuming the due authorization, execution and delivery by
the Trustee) the Indenture constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity and
the discretion of the court before which any proceeding therefor may be
brought.
(f) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Registration Rights Agreement. The Registration Rights Agreement has
been duly and validly authorized by the Company and, when executed and
delivered by the Company (assuming the due authorization, execution and
delivery by the Initial Purchaser), will constitute a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except that (A) the enforcement thereof may
be subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity and the discretion of the court before which any proceeding
therefor may be brought and (B) any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and
public policy considerations.
(g) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby. This
Agreement and the consummation by the Company of the transactions
contemplated hereby have been duly and validly authorized by the
Company. This Agreement has been duly executed and delivered by the
Company.
(h) Each of the Security Documents constitutes a valid and
legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditor's rights generally and (ii)
general principles of equity and the discretion of the court before
which any proceeding therefore may be brought. On the Closing Date, the
Collateral will conform in all material respects to the description
thereof contained in the Offering Memorandum.
(i) The Security Documents, create in favor of the Collateral
Agent (as defined in the Indenture) for the benefit of the Trustee and
the holders of the Notes, a valid and enforceable perfected senior
security interest in and Lien upon (in each case in accordance with the
provisions of the relevant Security Document) all of the Collateral,
superior to and prior to the rights of all third persons and subject to
no other Liens except for Liens expressly permitted to exist on such
Collateral by the terms of the applicable Security Document.
(j) No consent, approval, authorization or order of any court
or governmental agency or body, or third party is required for the
issuance and sale by the Company of the Notes to the Initial Purchaser
or the consummation by the Company of the other transactions
contemplated hereby, except such as have been obtained and such as may
be required under foreign and state securities or "Blue Sky" laws in
connection with the purchase and resale of the Notes by the Initial
Purchaser. None of the Company or the Subsidiaries is (i) in violation
of its certificate of incorporation or bylaws (or similar
organizational document), (ii) in breach or violation of any statute,
judgment, decree, order, rule or regulation applicable to any of them
or any of their respective properties or assets, except for any such
breach or violation that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, or (iii) in
breach of or default under (nor has any event occurred that, with
notice or passage of time or both, would constitute a default under) or
in violation of any of the terms or provisions of any indenture,
mortgage, deed of trust, loan agreement, note, lease, license,
franchise agreement, permit, certificate, contract or other agreement
or instrument to which any of them is a party or to which any of them
or their respective properties or assets is subject (collectively,
"Contracts"), except for any such breach, default, violation or event
that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(k) The execution, delivery and performance by the Company of
this Agreement, the Indenture, the Registration Rights Agreement and
the Security Documents and the consummation by the Company of the
transactions contemplated hereby and thereby to be consummated by it
(including, without limitation, the issuance and sale of the Notes to
the Initial Purchaser) will not conflict with or constitute or result
in a breach of or a default under (or an event that with notice or
passage of time or both would constitute a default under) or violation
of (i) any of the terms or provisions of any Contract, except for any
such conflict, breach, violation, default or event that would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, (ii) the certificate of incorporation or
bylaws (or similar organizational document) of the Company or any of
the Subsidiaries or (iii) (assuming compliance with all applicable
state securities or "Blue Sky" laws and assuming the accuracy of the
representations and warranties of the Initial Purchaser in Section 8
hereof) any statute, judgment, decree, order, rule or regulation
applicable to the Company or any of the Subsidiaries or any of their
respective properties or assets, except for any such conflict, breach,
violation, default or event that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(l) The audited consolidated financial statements of the
Company and its subsidiaries included in the Offering Memorandum
present fairly in all material respects the financial position, results
of operations and cash flows of the Company and its subsidiaries at the
dates and for the periods to which they relate and have been prepared
in accordance with accounting principles generally accepted in the
United States of America applied on a consistent basis, except as
otherwise stated therein. The interim unaudited consolidated financial
statements of the Company and its subsidiaries included in the Offering
Memorandum present fairly in all material respects the financial
position, results of operations and cash flows of the Company and its
subsidiaries at the dates and for the periods to which they relate,
except for the absence of footnotes and normal audit adjustments, and
have been prepared in accordance with accounting principles generally
accepted in the United States of America applied on a consistent basis,
except as otherwise stated therein. The selected financial and
statistical data in the Offering Memorandum present fairly in all
material respects the information shown therein and have been prepared
and compiled on a basis consistent with the audited financial
statements included therein, except as otherwise stated therein.
PricewaterhouseCoopers, LLP (the "Independent Accountants") is an
independent registered public accounting firm within the meaning of the
Act and the rules and regulations promulgated thereunder.
(m) Except as disclosed in the Offering Memorandum, there is
not pending or, to the knowledge of the Company, threatened any action,
suit, proceeding, inquiry or investigation to which the Company or any
of the Subsidiaries is a party, or to which the property or assets of
the Company or any of the Subsidiaries are subject, before or brought
by any court, arbitrator or governmental agency or body that, if
determined adversely to the Company or any of the Subsidiaries, would,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect or that seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of the
Notes to be sold hereunder or the consummation of the other
transactions to be consummated by the Company or any of its Affiliates
and described in the Offering Memorandum.
(n) Each of the Company and the Subsidiaries possesses all
licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals,
presently required or necessary to own or lease, as the case may be,
and to operate its respective properties and to carry on its respective
businesses as now conducted as set forth in the Offering Memorandum
("Permits"), except where the failure to obtain such Permits would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; each of the Company and the Subsidiaries has
fulfilled and performed all of its obligations with respect to such
Permits and no event has occurred that allows, or after notice or lapse
of time would allow, revocation or termination thereof or results in
any other impairment of the rights of the holder of any such Permit,
except where any such absence of fulfillment or performance, or
revocation or termination, would not reasonably be expected to have a
Material Adverse Effect; and none of the Company or the Subsidiaries
has received any notice of any proceeding relating to revocation or
modification of any such Permit, except as described in the Offering
Memorandum and except where such revocation or modification would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(o) Since the date of the most recent financial statements
appearing in the Offering Memorandum, except as described in the
Offering Memorandum, (i) none of the Company or the Subsidiaries has
incurred any liabilities or obligations, direct or contingent, or
entered into or agreed to enter into any transactions or contracts
(written or oral) not in the ordinary course of business, which
liabilities, obligations, transactions or contracts would, individually
or in the aggregate, be materially adverse to the business, condition
(financial or otherwise) or results of operations of the Companies and
its Subsidiaries, taken as a whole, (ii) none of the Company or the
Subsidiaries has purchased any of its outstanding capital stock, nor
declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock (other than with respect to any of such
Subsidiaries, the purchase of, or dividend or distribution on, capital
stock owned by the Company or a wholly owned Subsidiary) and (iii)
there has not been any material change in the capital stock or
long-term indebtedness of the Company or the Subsidiaries.
(p) Each of the Company and the Subsidiaries has filed all
necessary federal, state and foreign income and franchise tax returns,
except where the failure to so file such returns would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, and has paid all taxes shown as due thereon;
and, other than tax deficiencies that the Company or any Subsidiary is
contesting in good faith and for which the Company or such Subsidiary
has provided adequate reserves, there is no tax deficiency that has
been expressly asserted to the Company against the Company or any of
the Subsidiaries that would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(q) The statistical and market-related data included in the
Offering Memorandum are based on or derived from sources that the
Company and the Subsidiaries believe to be reliable and accurate with
respect to such data.
(r) None of the Company, the Subsidiaries or any agent acting
on their behalf has taken or will take any action that might cause this
Agreement or the sale of the Notes 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.
(s) Each of the Company and the Subsidiaries has good title to
all real property and good title to all personal property described in
the Offering Memorandum as being owned by it free and clear of all
liens, charges, encumbrances or restrictions, except as described in
the Offering Memorandum or pursuant to the Credit Agreement or to the
extent the failure to have such title or the existence of such liens,
charges, encumbrances or restrictions would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
All leases, contracts and agreements to which the Company or any of the
Subsidiaries is a party or by which any of them is bound are valid and
enforceable against the Company or such Subsidiary, to the Company's
knowledge, and are valid and enforceable against the other party or
parties thereto and are in full force and effect with only such
exceptions as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. The Company and the
Subsidiaries own or possess adequate licenses or other rights to use
all patents, trademarks, service marks, trade names, copyrights and
know-how necessary to conduct the businesses now operated by them as
described in the Offering Memorandum, except where the failure to own
or possess the foregoing would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. None of the
Company or the Subsidiaries has received any written (or, to the
Company's knowledge, oral) notice of infringement of or conflict with
(or knows of any such infringement of or conflict with) expressly
asserted (in writing) 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.
(t) There are no legal or governmental proceedings involving
or affecting the Company or any Subsidiary or any of their respective
properties or assets that are of such materiality that such proceedings
would be required to be described in a prospectus pursuant to the Act
and that are not described in the Offering Memorandum, nor are there
any material contracts or agreements that are of such materiality that
the same would be required to be described in a prospectus pursuant to
the Act (but excluding, for the avoidance of doubt, any contract that
need not be so described in a registration statement filed under the
Act, and containing such prospectus, other than by the filing of such
contract as an exhibit to such registration statement) that are not
described in the Offering Memorandum.
(u) Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (A) each of
the Company and the Subsidiaries is in compliance with and not subject
to liability under applicable Environmental Laws (as defined below),
(B) each of the Company and the Subsidiaries has made all filings and
provided all notices required under any applicable Environmental Law,
and has and is in compliance with all Permits required under any
applicable Environmental Laws and each of them is in full force and
effect, (C) except as disclosed in the Offering Memorandum, there is no
civil, criminal or administrative action, suit, demand, claim, hearing,
notice of violation, investigation, proceeding, notice or demand letter
or request for information pending or, to the knowledge of the Company
or any of the Subsidiaries, threatened against the Company or any of
the Subsidiaries under any Environmental Law, (D) no lien, charge,
encumbrance or restriction has been recorded under any Environmental
Law with respect to any assets, facility or property owned, operated,
leased or controlled by the Company or any of the Subsidiaries, (E)
none of the Company or the Subsidiaries has received notice that it has
been identified as a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), or any comparable state law and (F) no
property or facility of the Company or any of the Subsidiaries is (i)
listed or proposed for listing on the National Priorities List under
CERCLA or (ii) listed in the Comprehensive Environmental Response,
Compensation and Liability Information System List promulgated pursuant
to CERCLA, or on any comparable list maintained by any state or local
governmental authority.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state and local laws or
regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder, relating to pollution or
protection of public or employee health and safety or the environment,
including, without limitation, laws relating to (i) emissions,
discharges, releases or threatened releases of hazardous materials into
the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata), (ii) the
manufacture, processing, distribution, use, generation, treatment,
storage, disposal, transport or handling of hazardous materials, and
(iii) underground and aboveground storage tanks and related piping, and
emissions, discharges, releases or threatened releases therefrom.
(v) There is no strike, organized labor dispute, labor
slowdown or work stoppage with the employees of the Company or any of
the Subsidiaries that is pending or, to the knowledge of the Company or
any of the Subsidiaries, threatened which, individually or in the
aggregate, would reasonably be expected to have a Material Adverse
Effect.
(w) Each of the Company and the Subsidiaries carries insurance
in such amounts and covering such risks as are reasonably believed by
it to be adequate, in all material respects, for the conduct of its
business and the value of its properties.
(x) Except as disclosed in the Offering Memorandum, none of
the Company or the Subsidiaries has any material liability for any
prohibited transaction or funding deficiency or any complete or partial
withdrawal liability with respect to any pension, profit sharing or
other plan that is subject to the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or analogous foreign plans governed
by analogous foreign regulation, to which the Company or any of the
Subsidiaries makes or, within the prior six years has made, a
contribution and in which any employee of the Company or of any
Subsidiary is or has ever been a participant. With respect to such
plans, the Company and each Subsidiary is in compliance in all material
respects with all applicable provisions of ERISA.
(y) Each of the Company and the Subsidiaries (i) makes and
keeps accurate books and records within the meaning of Section 13(b)(2)
of the Exchange Act and (ii) maintains internal accounting controls
that provide reasonable assurance that (A) transactions are executed in
accordance with management's general or specific authorization, (B)
transactions are recorded as necessary to permit preparation of its
financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
general or specific authorization and (D) the reported accountability
for its assets is compared with existing assets at reasonable
intervals.
(z) None of the Company or the Subsidiaries is or as a result
of the transactions contemplated hereby will become an "investment
company" or "promoter" or "principal underwriter" for an "investment
company," as such terms are defined in the Investment Company Act of
1940, as amended, and the rules and regulations thereunder.
(aa) The Notes will, and the Indenture and the Registration
Rights Agreement do, conform in all material respects to the
descriptions thereof in the Offering Memorandum.
(bb) No holder of securities of the Company or any Subsidiary
will be entitled to have such securities registered under the
registration statements required to be filed by the Company pursuant to
the Registration Rights Agreement other than as expressly permitted
thereby.
(cc) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair
saleable value of the assets of the Company and its subsidiaries (on a
consolidated basis, considered as a single enterprise for purposes of
this paragraph) will exceed the sum of its stated liabilities and
identified contingent liabilities; the Company and its subsidiaries (on
a consolidated basis) are not, nor will the Company and its
subsidiaries (on a consolidated basis) be, after giving effect to the
execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby, (a) left with
unreasonably small capital with which to carry on their business as it
is proposed to be conducted, (b) unable to pay their debts (contingent
or otherwise) as they mature or (c) otherwise insolvent.
(dd) None of the Company, the Subsidiaries or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under
the Act) has directly, or through any agent, (i) sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect of any
"security" (as defined in the Act) that is or could be integrated with
the sale of the Notes in a manner that would require the registration
under the Act of the Notes or (ii) engaged in any form of general
solicitation or general advertising (as those terms are used in
Regulation D under the Act) in connection with the offering of the
Notes or in any manner involving a public offering within the meaning
of Section 4(2) of the Act. Assuming the truth and correctness of the
representations and warranties of the Initial Purchaser in Section 8
hereof and its compliance with its covenants in such Section, it is not
necessary in connection with the offer, sale and delivery of the Notes
to the Initial Purchaser in the manner contemplated by this Agreement
to register any of the Notes under the Act or to qualify the Indenture
under the TIA.
(ee) No securities of the Company or any Subsidiary are of the
same class (within the meaning of Rule 144A under the Act) as the Notes
and listed on a national securities exchange registered under Section 6
of the Exchange Act, or quoted in a U.S. automated inter-dealer
quotation system.
(ff) None of the Company or the Subsidiaries has taken, nor
will any of them take, directly or indirectly, any action designed to,
or that might be reasonably expected to, cause or result in
stabilization or manipulation of the price of the Notes.
(gg) None of the Company, the Subsidiaries, any of their
respective Affiliates or any person acting on its or their behalf
(other than the Initial Purchaser) has engaged in any directed selling
efforts (as that term is defined in Regulation S under the Act
("Regulation S")) with respect to the Notes; the Company, the
Subsidiaries and their respective Affiliates and any person acting on
its or their behalf (other than the Initial Purchaser) have complied
with the offering restrictions requirement of Regulation S.
Any certificate signed by any officer of the Company or any Subsidiary
and delivered (at the purchase and sale of the Notes on the Closing Date) to the
Initial Purchaser or to counsel for the Initial Purchaser shall be deemed a
representation and warranty by the Company to the Initial Purchaser as to the
matters covered thereby.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Initial Purchaser, and the Initial Purchaser agrees to
purchase the Notes from the Company at 107% of their principal amount plus
accrued interest from and including July 1, 2004, less the Initial Purchaser's
fee of euro 1,444,500.00. One or more certificates in definitive form for the
Notes that the Initial Purchaser has agreed to purchase hereunder, and in such
denomination or denominations and registered in such name or names as the
Initial Purchaser requests upon notice to the Company at least 36 hours prior to
the Closing Date, shall be delivered by or on behalf of the Company to the
Initial Purchaser, against payment by or on behalf of the Initial Purchaser of
the purchase price therefor by wire transfer (same day funds), to such account
or accounts as the Company shall specify prior to the Closing Date, or by such
means as the parties hereto shall agree prior to the Closing Date. Such delivery
of and payment for the Notes shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇▇ House, 6A Austin Friars, London, England EC2N 2HA at
10:00 A.M., London time, on November 26, 2004, or at such other place, time or
date as the Initial Purchaser, on the one hand, and the Company, on the other
hand, may agree upon, such time and date of delivery against payment being
herein referred to as the "Closing Date." The Company will make such certificate
or certificates for the Notes available for checking and packaging by the
Initial Purchaser at the offices of Deutsche Bank Securities Inc. in New York,
New York, or at such other place as Deutsche Bank Securities Inc. may designate,
at least 24 hours prior to the Closing Date.
4. Offering by the Initial Purchaser. The Initial Purchaser proposes to
make an offering of the Notes at the price and upon the terms set forth in the
Offering Memorandum as soon as practicable after this Agreement is entered into
and as in the judgment of the Initial Purchaser is advisable.
5. Covenants of the Company. The Company covenants and agrees with the
Initial Purchaser that:
(a) The Company will not amend or supplement the Offering
Memorandum or any amendment or supplement thereto of which the Initial
Purchaser shall not previously have been advised and furnished a copy
for a reasonable period of time prior to the proposed amendment or
supplement and as to which the Initial Purchaser shall not have given
its consent (not to be unreasonably withheld). The Company will
promptly, upon the reasonable request of the Initial Purchaser or
counsel for the Initial Purchaser, make any amendments or supplements
to the Offering Memorandum that may be necessary or advisable in
connection with the resale of the Notes by the Initial Purchaser.
(b) The Company will cooperate with the Initial Purchaser in
arranging for the qualification of the Notes for offering and sale
under the securities or "Blue Sky" laws of such European Union,
Canadian or United States jurisdictions as the Initial Purchaser may
designate and will continue such qualifications in effect for as long
as may be reasonably necessary to complete the resale of the Notes;
provided, however, that in connection therewith, the Company shall not
be required to qualify as a foreign corporation (or any other foreign
business organization) or to execute a general consent to service of
process in any jurisdiction or subject itself to taxation in excess of
a nominal dollar amount in any such jurisdiction where it is not then
so subject.
(c) If, at any time prior to the completion of the
distribution by the Initial Purchaser of the Notes or the Private
Exchange Notes, any event occurs or information becomes known as a
result of which the Offering Memorandum as then amended or supplemented
would include any untrue statement of a material fact, or omit to state
a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if
for any other reason it is necessary at any time to amend or supplement
the Offering Memorandum to comply with applicable law, the Company will
promptly notify the Initial Purchaser thereof and will prepare, at the
expense of the Company, an amendment or supplement to the Offering
Memorandum that corrects such statement or omission or effects such
compliance.
(d) The Company will, without charge, provide to the Initial
Purchaser and to counsel for the Initial Purchaser as many copies of
the Offering Memorandum or any amendment or supplement thereto as the
Initial Purchaser may reasonably request.
(e) The Company will apply the net proceeds from the sale of
the Notes as set forth under "Use of Proceeds" in the Offering
Memorandum.
(f) Until the third anniversary of the Closing Date, the
Company will furnish to the Initial Purchaser copies of all reports and
other communications (financial or otherwise) furnished by the Company
to the Trustee or to the holders of the Notes and, as soon as
available, copies of any reports or financial statements furnished to
or filed by the Company with the Commission or any national securities
exchange on which any class of securities of the Company may be listed;
provided, however, that any such reports or financial statements
furnished to or filed by the Company with the Commission need not be
separately furnished to the Initial Purchaser if such reports or
statements are publicly available through the Commission's electronic
data gathering and retrieval database.
(g) Prior to the Closing Date, the Company will furnish to the
Initial Purchaser, as soon as they have been prepared, a copy of any
substantially complete unaudited interim financial statements of the
Company prepared in the ordinary course of business for any period
subsequent to the period covered by the most recent financial
statements appearing in the Offering Memorandum.
(h) None of the Company or any of its Affiliates will sell,
offer for sale or solicit offers to buy or otherwise negotiate in
respect of any "security" (as defined in the Act) that could be
integrated with the sale of the Notes in a manner which would require
the registration under the Act of the Notes.
(i) The Company will not, and will not permit any of the
Subsidiaries to, engage in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Notes or in any manner involving a
public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Notes remain outstanding, the
Company will make available at its expense, upon request, to any holder
of such Notes and any prospective purchasers thereof the information
specified in Rule 144A(d)(4) under the Act, unless the Company is then
subject to Section 13 or 15(d) of the Exchange Act.
(k) The Company will use its commercially reasonable efforts
to (i) permit the Notes to be eligible for trading on the Luxembourg
Stock Exchange and (ii) permit the Notes to be eligible for clearance
and settlement through the Euroclear System and Clearstream Banking,
societe anonyme.
(l) In connection with Notes offered and sold in an offshore
transaction (as defined in Regulation S) the Company will not register
any transfer of such Notes not made in accordance with the provisions
of Regulation S and will not, except in accordance with the provisions
of Regulation S, if applicable, issue any such Notes in the form of
definitive securities.
(m) The Company will comply with all of its agreements set
forth in the Indenture, the Registration Rights Agreement and the
Security Documents.
6. Expenses. The Company agrees to pay all costs and expenses incident
to the performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to (i)
the printing, word processing or other production of documents with respect to
the transactions contemplated hereby, including any costs of printing the
Offering Memorandum and any amendment or supplement thereto, and any "Blue Sky"
memoranda, (ii) all arrangements relating to the delivery to the Initial
Purchaser of copies of the foregoing documents, (iii) the fees and disbursements
of the counsel, the accountants and any other experts or advisors retained by
the Company, (iv) preparation (including printing), issuance and delivery to the
Initial Purchaser of the Notes, (v) the qualification of the Notes under
European Union, Canadian and United States state securities and "Blue Sky" laws,
including filing fees and reasonable fees and disbursements of counsel for the
Initial Purchaser relating thereto, (vi) expenses in connection with any
meetings with prospective investors in the Notes, (vii) fees and expenses of the
Trustee and Luxembourg Listing Agent including fees and expenses of counsel,
(viii) all expenses and listing fees incurred in connection with the application
for listing of the Notes on the Luxembourg Stock Exchange and (ix) any fees
charged by investment rating agencies for the rating of the Notes. If the sale
of the Notes provided for herein is not consummated because any condition to the
obligations of the Initial Purchaser set forth in Section 7 hereof is not
satisfied on the Closing Date, because this Agreement is terminated or because
of any failure, refusal or inability on the part of the Company to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder (in any case other than solely by reason of a default by the Initial
Purchaser of its obligations hereunder after all conditions hereunder have been
satisfied in accordance herewith), the Company agrees to promptly reimburse the
Initial Purchaser upon demand for all out-of-pocket expenses (including
reasonable fees, disbursements and charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
counsel for the Initial Purchaser) that shall have been incurred by the Initial
Purchaser in connection with the proposed purchase and sale of the Notes.
7. Conditions of the Initial Purchaser's Obligations. The obligation of
the Initial Purchaser to purchase and pay for the Notes shall, in its sole
discretion, be subject to the satisfaction or waiver of the following conditions
on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser shall have
received (i) the opinion, dated as of the Closing Date and addressed to
the Initial Purchaser, of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Company, in form and substance reasonably satisfactory to counsel for
the Initial Purchaser, to the effect set forth in Exhibit A, (ii) the
opinion, dated as of the Closing Date and addressed to the Initial
Purchaser, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Partner, German counsel to the
Company, in form and substance reasonably satisfactory to counsel for
the Initial Purchaser, to the effect set forth in Exhibit B, (iii) the
opinion, dated as of the Closing Date and addressed to the Initial
Purchaser, of ▇▇▇▇-▇▇▇▇▇ Dragsted Law Firm, Danish counsel to the
Company, in form and substance reasonably satisfactory to the Initial
Purchaser, to the effect set forth in Exhibit B, (iv) the opinion,
dated as of the Closing Date and addressed to the Initial Purchaser, of
Narbarro ▇▇▇▇▇▇▇▇▇, United Kingdom counsel to the Company, in form and
substance reasonably satisfactory to the Initial Purchaser, to the
effect set forth in Exhibit B, and (v) the opinion, dated as of the
Closing Date and addressed to the Initial Purchaser, of MB & Associes,
French counsel to the Company, in form and substance reasonably
satisfactory to the Initial Purchaser, to the effect set forth in
Exhibit B.
(b) On the Closing Date, the Initial Purchaser shall have
received the opinion, in form and substance satisfactory to the Initial
Purchaser, dated as of the Closing Date and addressed to the Initial
Purchaser, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial
Purchaser, with respect to certain legal matters relating to this
Agreement and such other related matters as the Initial Purchaser may
reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP shall have received and may rely upon such certificates and other
documents and information as it may reasonably request to pass upon
such matters.
(c) The Initial Purchaser shall have received from the
Independent Accountants a comfort letter or letters dated no later than
November 23, 2004 and as of the Closing Date, in form and substance
reasonably satisfactory to counsel for the Initial Purchaser.
(d) The representations and warranties of the Company
contained in this Agreement shall be true and correct on and as of the
date hereof and on and as of the Closing Date as if made on and as of
the Closing Date; the statements of the Company's officers made in any
certificate signed by them delivered on or as of the Closing Date in
accordance with the provisions hereof shall be true and correct on and
as of the date made and on and as of the Closing Date; the Company
shall have performed in all material respects all covenants and
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date; and, except as
described in the Offering Memorandum (exclusive of any amendment or
supplement thereto after the date hereof), subsequent to the date of
the most recent financial statements in such Offering Memorandum, there
shall have been no event or development, and no information shall have
become known, that, individually or in the aggregate, has or would be
reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial
statements in the Offering Memorandum (exclusive of any amendment or
supplement thereto after the date hereof), none of the Company or any
of the Subsidiaries shall have sustained any loss or interference with
respect to its business or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or
from any strike, organized labor dispute, labor slowdown or work
stoppage or from any legal or governmental proceeding, order or decree,
which loss or interference, individually or in the aggregate, has or
would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchaser shall have received a certificate of
the Company, dated the Closing Date, signed on behalf of the Company by
its Chief Executive Officer or any President or Vice President and the
Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Company
contained in this Agreement are true and correct on and as of
the date hereof and on and as of the Closing Date, and the
Company has performed in all material respects all covenants
and agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing
Date;
(ii) At the Closing Date, since the date hereof or
since the date of the most recent financial statements in the
Offering Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), no event or development has
occurred, and no information has become known, that,
individually or in the aggregate, has or would be reasonably
likely to have a Material Adverse Effect; and
(iii) The sale of the Notes hereunder has not been
enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchaser shall have
received the Registration Rights Agreement executed by the Company and
such agreement shall be in full force and effect at the Closing Date.
(i) On or before the Closing Date, the Company shall have
caused to be delivered the following documents and instruments with
regard to the Collateral:
(i) to the Trustee (with a copy to the Initial
Purchaser), evidence of all registrations or filings in each
of the offices where such registrations or filings are
necessary or, in the opinion of the Initial Purchaser,
desirable to perfect the Liens created or intended to be
created thereby;
(ii) to the Initial Purchaser and the Trustee,
evidence satisfactory to them of the payment of all filing
fees and taxes in connection with the filings and
registrations contemplated in clause (i) above and
acknowledgment copies of all such filings; and
(iii) to the Initial Purchaser and the Trustee,
evidence as may be reasonably requested that all other actions
necessary to perfect and, subject to Liens expressly permitted
to exist by the terms of the applicable Security Document,
protect the Liens created or intended to be created by the
Security Documents have been taken.
On or before the Closing Date, the Initial Purchaser and counsel for
the Initial Purchaser shall have received from the Company such further
documents, opinions, certificates, letters and schedules or instruments relating
to the business, corporate, legal and financial affairs of the Company and the
Subsidiaries as they shall have heretofore reasonably requested from the
Company.
All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchaser and counsel for the Initial Purchaser. The Company shall
furnish to the Initial Purchaser such conformed copies of such documents,
opinions, certificates, letters, schedules and instruments in such quantities as
the Initial Purchaser shall reasonably request.
8. Offering of Notes; Restrictions on Transfer. (a) The Initial
Purchaser agrees with the Company that (i) it has not and will not solicit
offers for, or offer or sell, the Notes by any form of general solicitation or
general advertising (as those terms are used in Regulation D under the Act) or
in any manner involving a public offering within the meaning of Section 4(2) of
the Act; and (ii) it has and will solicit offers for the Notes only from, and
will offer the Notes only to, (A) in the case of offers inside the United
States, persons whom the Initial Purchaser reasonably believes to be qualified
institutional buyers within the meaning of Rule 144A under the Act
(individually, a "QIB") or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to the Initial Purchaser that each such
account is a QIB to whom notice has been given that such sale or delivery is
being made in reliance on Rule 144A and, in each case, in transactions under
Rule 144A and (B) in the case of offers outside the United States, to persons
other than U.S. persons ("non-U.S. purchasers," which term shall include dealers
or other professional fiduciaries in the United States acting on a discretionary
basis for non-U.S. beneficial owners (other than an estate or trust)); provided,
however, that in the case of this clause (B), in purchasing such Notes such
persons are deemed to have represented and agreed as provided under the caption
"Transfer Restrictions" contained in the Offering Memorandum.
(b) The Initial Purchaser represents, warrants and covenants with
respect to offers and sales outside the United States that (i) it has and will
comply with all applicable laws and regulations in each jurisdiction in which it
acquires, offers, sells or delivers Notes or has in its possession or
distributes the Offering Memorandum or any such other material, in all cases at
its own expense; (ii) the Notes have not been and will 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; and (iii) it has offered the
Notes and will offer and sell the Notes (A) as part of its distribution at any
time and (B) 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
and, accordingly, neither it nor any persons acting on its behalf have engaged
or will engage in any directed selling efforts (within the meaning of Regulation
S) with respect to the Notes, and any such persons have complied and will comply
with the offering restrictions requirement of Regulation S.
Terms used in this Section 8 and not defined in this Agreement have the
meanings given to them in Regulation S.
9. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Initial Purchaser, each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act and any U.S. affiliate of the Initial Purchaser
against any losses, claims, damages or liabilities to which the Initial
Purchaser or such controlling person may become subject under the Act, the
Exchange Act or otherwise, insofar as any such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by
the Company in Section 2 hereof;
(ii) any untrue statement or alleged untrue statement of any
material fact contained in the Offering Memorandum or any amendment or
supplement thereto; or
(iii) the omission or alleged omission to state, in the
Offering Memorandum or any amendment or supplement thereto, a material
fact required to be stated therein or necessary to make the statements
therein not misleading,
and will reimburse, as incurred, the Initial Purchaser and each such controlling
person and such U.S. affiliates for any reasonable legal or other expenses
incurred by the Initial Purchaser or such controlling person in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
however, that the Company 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
untrue statement or alleged untrue statement or omission or alleged omission
made in the Offering Memorandum or any amendment or supplement thereto in
reliance upon and in conformity with written information concerning the Initial
Purchaser furnished to the Company by the Initial Purchaser specifically for use
therein. The indemnity provided for in this Section 9 will be in addition to any
liability that the Company may otherwise have to the indemnified parties. The
Company shall not be liable under this Section 9 for any settlement of any claim
or action effected without its prior written consent, which shall not be
unreasonably withheld.
(b) The Initial Purchaser agrees to indemnify and hold harmless the
Company, its directors, its officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in the Offering Memorandum or any amendment or supplement thereto, or
(ii) the omission or the alleged omission to state therein a material fact
required to be stated in the Offering Memorandum or any amendment or supplement
thereto, or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning the Initial Purchaser
furnished to the Company by the Initial Purchaser specifically for use therein;
and subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses incurred by the Company or
any such director, officer or controlling person in connection with
investigating or defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action in respect
thereof. The indemnity provided for in this Section 9 will be in addition to any
liability that the Initial Purchaser may otherwise have to the indemnified
parties. The Initial Purchaser shall not be liable under this Section 9 for any
settlement of any claim or action effected without its consent, which shall not
be unreasonably withheld. The Company shall not, without the prior written
consent of the Initial Purchaser, effect any settlement or compromise of any
pending or threatened proceeding in respect of which the Initial Purchaser is or
could have been a party, or indemnity could have been sought hereunder by the
Initial Purchaser, unless such settlement (A) includes an unconditional written
release of the Initial Purchaser, in form and substance reasonably satisfactory
to the Initial Purchaser, from all liability on claims that are the subject
matter of such proceeding and (B) does not include any statement as to an
admission of fault, culpability or failure to act by or on behalf of the Initial
Purchaser.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action for which such indemnified party is
entitled to indemnification under this Section 9, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
this Section 9, promptly notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraphs (a) and (b)
above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are materially different
from or materially additional to those available to the indemnifying party (it
being understood that, without any limitation as to the defenses which may be
materially different or materially additional, the availability of a due
diligence defense shall be deemed materially different and materially additional
for purposes of this Section 9(c)), or (iii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after receipt by the
indemnifying party of notice of the institution of such action, then, in each
such case, the indemnifying party shall not have the right to direct the defense
of such action on behalf of such indemnified party or parties and such
indemnified party or parties shall have the right to select separate counsel to
defend such action on behalf of such indemnified party or parties. After notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and approval by such indemnified party of counsel
appointed to defend such action, the indemnifying party will not be liable to
such indemnified party under this Section 9 for any legal or other expenses,
other than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that in connection with such action the indemnifying party shall not be liable
for the expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations or circumstances,
designated by the Initial Purchaser in the case of paragraph (a) of this Section
9 or the Company in the case of paragraph (b) of this Section 9, representing
the indemnified parties under such paragraph (a) or paragraph (b), as the case
may be, who are parties to such action or actions) or (ii) the indemnifying
party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party. All fees and expenses reimbursed
pursuant to this paragraph (c) shall be reimbursed as they are incurred. After
such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the prior
written consent of the indemnifying party (which consent shall not be
unreasonably withheld), unless such indemnified party waived in writing its
rights under this Section 9, in which case the indemnified party may effect such
a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 9 is unavailable to, or insufficient to
hold harmless, an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from the
offering of the Notes or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, not only such relative benefits but also
the relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof). The relative benefits received by
the Company on the one hand and the Initial Purchaser on the other shall be
deemed to be in the same proportion as the total proceeds from the offering
(before deducting expenses) received by the Company bear to the total discounts
and commissions received by the Initial Purchaser. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand, or the Initial Purchaser on the other, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission or alleged statement or omission, and any other
equitable considerations appropriate in the circumstances. The Company and the
Initial Purchaser agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), the Initial Purchaser
shall not be obligated to make contributions hereunder that in the aggregate
exceed the total discounts, commissions and other compensation received by the
Initial Purchaser under this Agreement, less the aggregate amount of any damages
that the Initial Purchaser has otherwise been required to pay by reason of the
untrue or alleged untrue statements or the omissions or alleged omissions to
state a material fact, and no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) in connection with a matter for
which contribution is otherwise available hereunder shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Initial Purchaser, and each director of the Company, each officer of the Company
and each person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, its
officers (on behalf of the Company) and the Initial Purchaser set forth in this
Agreement or made by or on behalf of them pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the Company, any of its officers or directors, the Initial
Purchaser or any controlling person referred to in Section 9 hereof and (ii)
delivery of and payment for the Notes. The respective agreements, covenants,
indemnities and other statements set forth in Sections 6, 9, 10 and 15 hereof
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated in the sole
discretion of the Initial Purchaser by notice to the Company given prior to the
Closing Date if the Company shall have failed, refused or been unable to perform
all obligations and satisfy all conditions on its part to be performed or
satisfied hereunder at or prior thereto (other than as a result of a breach by
the Initial Purchaser of its obligations hereunder) or, if at or prior to the
Closing Date:
(i) any of the Company or the Subsidiaries shall have
sustained any loss or interference with respect to its businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any strike, organized
labor dispute, labor slowdown or work stoppage or any legal or
governmental proceeding, which loss or interference, in the sole
judgment of the Initial Purchaser, has had or has a Material Adverse
Effect, or there shall have been, in the sole judgment of the Initial
Purchaser, any event or development that, individually or in the
aggregate, has or could be reasonably likely to have a Material Adverse
Effect, except in each case as described in the Offering Memorandum
(exclusive of any amendment or supplement thereto);
(ii) trading in securities of the Company or in securities
generally on the Luxembourg Stock Exchange, New York Stock Exchange,
American Stock Exchange or the NASDAQ National Market shall have been
suspended or materially limited or minimum or maximum prices shall,
based on trading activity, have been implemented on any such exchange
or market;
(iii) a banking moratorium shall have been declared by
authorities of the Federal Republic of Germany, the United Kingdom,
Norway, Denmark, New York or the United States or a material disruption
in commercial banking or securities settlement or clearance services in
any member state of the European Union or the United States;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between any member state of the European Union or the
United States and any foreign power, or (B) an outbreak or escalation
of any other insurrection or armed conflict involving the United States
or any other national or international calamity or emergency, or (C)
any material adverse change in the financial markets of any member
state of the Federal Republic of Germany, the United Kingdom, Norway,
Denmark, or the United States which, in the case of (A), (B) or (C)
above and in the sole judgment of the Initial Purchaser, makes it
impracticable or inadvisable to proceed with the offering or the
delivery of the Notes as contemplated by the Offering Memorandum; or
(v) any securities of the Company shall have been downgraded
or placed on any "watch list" for possible downgrading by any
nationally recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 11 shall be
without liability of any party to any other party except as provided in Section
10 hereof.
12. Information Supplied by the Initial Purchaser. The statements set
forth in the last paragraph on the front cover page and in the second and third
sentences of the third paragraph under the heading "Private Placement" in the
Offering Memorandum (to the extent such statements relate to the Initial
Purchaser) constitute the only information furnished by the Initial Purchaser to
the Company for the purposes of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing and, if
sent to the Initial Purchaser, shall be mailed or delivered to Deutsche Bank AG
London, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attention:
Corporate Finance Department; with a copy (which shall not be considered notice)
to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.; if sent to the Company, shall be mailed or
delivered to the Company at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, with a copy (which shall not be considered notice)
to ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five (5) business days
after being deposited in the mail, postage prepaid, if mailed; and one business
day after being timely delivered to a next-day air courier.
14. Successors. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchaser, the Company and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained; this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the indemnities
of the Company contained in Section 9 of this Agreement shall also be for the
benefit of any person or persons who control the Initial Purchaser within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Initial Purchaser contained in Section 9 of this Agreement
shall also be for the benefit of the directors of the Company, its officers and
any person or persons who control the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act. No purchaser of Notes from the
Initial Purchaser will be deemed a successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company
and the Initial Purchaser.
Very truly yours,
KRONOS INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President,
Finance and Chief
Finanical Officer
The foregoing Agreement is hereby confirmed
and accepted as of the date first
above written.
DEUTSCHE BANK AG LONDON
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ C.M. Flower
-------------------------------
Name: C. Flower
Title: Managing Director
SCHEDULE 1A
Subsidiaries of the Company
Jurisdiction of
Name Incorporation
---- -------------
Kronos Titan-GmbH Germany
Kronos Europe S.A./N.V. Belgium
Kronos Limited United Kingdom
Societe Industrielle Du Titane, S.A. France
Kronos Denmark ApS Denmark
Kronos Norge A/S Norway
Kronos Titan A/S Norway
Titania A/S Norway
SCHEDULE 1B
Other Subsidiaries of the Company
Jurisdiction of
Name Incorporation
-------------
Kronos Chemie-GmbH Germany
Kronos Invest A/S Norway
Kronos B.V. The Netherlands
The Jossingfjord Manufacturing Company A/S Norway
Tinfoss Titan & Iron A/S Norway
Kronos World Services, S.A./N.V. Belgium
Unterstuetzungskasse Kronos Titan GmbH Germany
Tinfoss Titan & Iron K/S Norway
EXHIBIT A
Form of Opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
EXHIBIT B
Form of Opinion of Local Counsel to the Company
EXHIBIT C
Registration Rights Agreement
