EXECUTION VERSION
PURCHASE AGREEMENT
MERRILL CORPORATION
and
VIKING MERGER SUB, INC.
as Issuers
and the Guarantors named herein
140,000 UNITS
consisting of
12% SENIOR SUBORDINATED NOTES DUE 2009
AND
WARRANTS TO PURCHASE SHARES OF COMMON STOCK
Dated as of November 18, 1999
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
- --------------------------------------------------------------------------------
140,000 Units
consisting of
12% Series A Senior Subordinated Notes due 2009 and
Warrants to Purchase Shares of Common Stock
PURCHASE AGREEMENT
November 18, 1999
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Merrill Corporation, a Minnesota corporation (the "COMPANY"), and
Viking Merger Sub, Inc., a Minnesota corporation ("VIKING" and, together with
the Company, the "ISSUERS"), propose to issue and sell to Donaldson, Lufkin &
Jenrette Securities Corporation (the "INITIAL PURCHASER") 140,000 units (the
"UNITS"), each consisting of $1,000 in aggregate principal amount of the
Company's 12% Senior Subordinated Notes due 2009 (the "SERIES A NOTES"),
together with the Subsidiary Guarantees described below, and one warrant
(collectively, the "WARRANTS") initially to purchase 1.22987 Common Shares of
Viking, par value $0.01 per share (the "WARRANT SHARES"), subject to the terms
and conditions set forth herein. The Units, the Notes and the Warrants are
sometimes collectively referred to herein as the "SECURITIES"
The Units are being issued and sold in connection with the merger
(the "MERGER") of Viking, with and into the Company, pursuant to an Agreement
and Plan of Merger (as amended to the date hereof, the "MERGER AGREEMENT"),
dated as of July 14, 1999, between the Company and Viking. Unless the context
otherwise requires, the "COMPANY" shall refer to Merrill Corporation both
before and after giving effect to the Merger. It is understood and agreed that
upon effectiveness of the Merger the Company will be the surviving corporation
and Viking will cease to exist, and the Company will assume all of Viking's
obligations under this Agreement.
The Series A Notes are to be issued pursuant to the provisions of an
indenture (the "INDENTURE"), to be dated as of the Closing Date (as defined
below), among the Company, the Guarantors (as defined below) and Norwest Bank
Minnesota, N.A., as trustee (the "TRUSTEE"). The Series A Notes and the Series
B Notes (as defined below) issuance in exchange therefor are collectively
referred to herein as the "NOTES." The Notes will be guaranteed (the
"SUBSIDIARY NOTE GUARANTEES") by each of the entities listed on Schedule A
hereto (each, a "GUARANTOR" and collectively the "GUARANTORS"). Unless the
context otherwise requires, each reference
herein to a Series A Note or Series B Note shall be deemed to include the
related Subsidiary Note Guarantees thereof.
The Warrants will be issued pursuant to a warrant agreement (the
"WARRANT AGREEMENT"), to be dated as of the Closing Date, between Viking and
Norwest Minnesota Bank, N.A., as warrant agent (the "WARRANT AGENT"). Upon the
effectiveness of the Merger (as defined below), the obligations of Viking under
the Warrants and the Warrant Agreement, by operation of law and otherwise in
accordance with an assumption agreement dated as of the Closing Date between
the Company and Viking (the "WARRANT ASSUMPTION AGREEMENT"), will be assumed by
the Company, and each Warrant will thereby become exercisable for 1.22987
shares of the Company's Class B Stock, par value $0.01 per share (the "CLASS B
COMMON STOCK"). Accordingly, as the context requires, references herein to the
Warrants, the Units and the Warrant Agreement shall be deemed to refer to the
Warrants, the Units and the Warrant Agreement following their assumption by the
Company, and references herein to the Warrant Shares shall be deemed to refer
to the shares of Class B Common Stock issuable on exercise of the Warrants
following the assumption of the Warrants and the Warrant Agreement by the
Company.
In connection with the Merger, (i) Merrill Communications LLC, a
wholly owned subsidiary of the Company, will enter into a syndicated senior
secured loan facility pursuant to the credit agreement, to be dated the Closing
Date, by and among the Company, as guarantor, Merrill Communications LLC, as
borrower, DLJ Capital Funding, Inc., as syndication agent, Wells Fargo Bank,
N.A., as documentation agent, U.S. Bank National Association, as administrative
agent and DLJ Capital Funding, Inc., as lead arranger, and the various
financial institutions named therein, as lenders (including any agreements
related thereto, the "CREDIT AGREEMENT") and (ii) certain affiliates of the
Initial Purchaser and other persons will purchase shares of capital stock of
Viking (the "INVESTMENT"), in each case as defined and specified in the Merger
Agreement and as described in the Offering Memorandum (as defined below).
Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Indenture or, if not defined therein, the Merger
Agreement.
1. OFFERING MEMORANDUM. The Units will be offered and sold to
the Initial Purchaser pursuant to one or more exemptions from the registration
requirements under the Securities Act of 1933, as amended (the "ACT"). The
Issuers and the Guarantors have prepared a preliminary offering memorandum,
dated November 3, 1999 (the "PRELIMINARY OFFERING MEMORANDUM") relating to the
Notes, and a final offering memorandum, dated November 18, 1999 (the "OFFERING
MEMORANDUM"), relating to the Units.
Upon original issuance thereof, and until such time as the same is no
longer required pursuant to the Indenture and Warrant Agreement, as the case
may be, the Securities (and all securities issued in exchange therefor, in
substitution thereof or upon conversion thereof) shall bear the following
legend:
"THIS [NOTE] [SECURITY] (OR ITS PREDECESSOR) [AND THE WARRANT
SHARES TO BE ISSUED UPON ITS EXERCISE HAVE] [HAS] NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES
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ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, UNITED STATES
PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE, BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (As defined in Rule 144A under the Securities Act)(A "QIB"),
(B) IT HAS ACQUIRED THIS [NOTE] [SECURITY] IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS
AN INSTITUTIONAL "ACCREDITED INVESTOR" (as defined in Rule 501(A)(1),
(2), (3) or (7) of Regulation D under the Securities Act (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS [NOTE] [SECURITY] EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION
S OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO
SUCH TRANSFER, FURNISHES THE [TRUSTEE] [WARRANT AGENT] A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS [NOTE] [SECURITY] (the form of which can be obtained
from the [Trustee] [Warrant Agent]) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE [PRINCIPAL] [PURCHASE] AMOUNT OF [NOTES]
[SECURITIES] LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES
ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
[NOTE] [SECURITY] OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
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AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE [INDENTURE] [WARRANT AGREEMENT] CONTAINS A
PROVISION REQUIRING THE [TRUSTEE] [WARRANT AGENT] TO REFUSE TO
REGISTER ANY TRANSFER OF THIS [NOTE] [SECURITY] IN VIOLATION OF THE
FOREGOING."
Until such time as the Warrants become separately transferable
according to the terms of the Warrant Agreement, the Warrants shall bear the
following additional legend:
"THE WARRANTS EVIDENCED BY THIS CERTIFICATE ARE INITIALLY
ISSUED AS PART OF AN ISSUANCE OF UNITS (THE "UNITS"), EACH OF WHICH
CONSISTS OF $1,000 PRINCIPAL AMOUNT AT MATURITY OF THE 12% SENIOR
SUBORDINATED NOTES DUE 2009 (THE "NOTES") OF MERRILL CORPORATION AND
ONE WARRANT TO PURCHASE 1.22987 SHARES, PAR VALUE $0.01 PER SHARE, OF
MERRILL CORPORATION CLASS B COMMON STOCK.
PRIOR TO THE EARLIEST TO OCCUR OF (I) 180 DAYS AFTER THE
CLOSING OF THE OFFERING OF THE UNITS, (II) THE DATE ON WHICH A
REGISTRATION STATEMENT WITH RESPECT TO A REGISTERED EXCHANGE OFFER FOR
THE NOTES IS DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (III) THE
DATE A SHELF REGISTRATION STATEMENT WITH RESPECT TO THE NOTES OR THE
WARRANTS IS DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (IV) SUCH
DATE AS DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION IN ITS
SOLE DISCRETION SHALL DETERMINE AND (V) IN THE EVENT OF A CHANGE OF
CONTROL (AS DEFINED IN THE INDENTURE GOVERNING THE NOTES), THE DATE
MERRILL CORPORATION MAILS THE REQUISITE NOTICE TO THE HOLDERS, THE
WARRANTS EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR
EXCHANGED SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY
TOGETHER WITH, THE NOTES."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Issuers agree to issue
and sell to the Initial Purchaser, and the Initial Purchaser agrees to purchase
from the Issuers, all of the Units initially at a purchase price equal to
$943.36 per Unit (the "PURCHASE PRICE").
3. TERMS OF OFFERING. The Initial Purchaser has advised the
Issuers that the Initial Purchaser will make offers (the "EXEMPT RESALES") of
the Units purchased hereunder on the terms set forth in the Offering
Memorandum, as amended or supplemented, solely to persons whom the Initial
Purchaser reasonably believes to be "qualified institutional buyers" as defined
in Rule 144A under the Act ("QIBS") (such persons being referred to herein as
the "ELIGIBLE
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PURCHASERS"). The Initial Purchaser will offer the Units to Eligible
Purchasers initially at a price equal to $972.54 per Unit. Such price may be
changed at any time without notice.
Holders (including subsequent transferees) of the Series A Notes will
have the registration rights set forth in the registration rights agreement
(the "REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date, in
substantially the form of Exhibit A hereto, for so long as such Series A Notes
constitute "TRANSFER RESTRICTED SECURITIES" (as defined in the Registration
Rights Agreement). Pursuant to the Registration Rights Agreement, the Company
and the Guarantors will agree to file with the Securities and Exchange
Commission (the "COMMISSION") under the circumstances set forth therein, (i) a
registration statement under the Act (the "EXCHANGE OFFER REGISTRATION
STATEMENT") relating to the Company's 12% Senior Subordinated Notes due 2009
(the "SERIES B NOTES"), to be offered in exchange for the Series A Notes (such
offer to exchange being referred to as the "EXCHANGE OFFER") or (ii) a shelf
registration statement pursuant to Rule 415 under the Act (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer Registration
Statement, the "REGISTRATION STATEMENTS") relating to the resale by certain
holders of the Series A Notes and to use their respective reasonable best
efforts to cause such Registration Statements to be declared and remain
effective and usable for the periods specified in the Registration Rights
Agreement and to consummate the Exchange Offer.
Holders (including subsequent transferees) of the Warrants and the
Warrant Shares will have the rights set forth in the warrant registration
rights agreement (the "WARRANT REGISTRATION RIGHTS AGREEMENT"), to be dated the
Closing Date, in substantially the form attached as Exhibit B hereto. Pursuant
to the Warrant Registration Rights Agreement, the Company will agree to file a
shelf registration statement (the "WARRANT REGISTRATION STATEMENT") covering
resales of the Warrants, the issuance of Warrant Shares upon exercise of
Warrants sold pursuant to such Warrant Registration Statement and resales of
Warrant Shares, and to use its reasonable best efforts to have such Warrant
Registration Statement declared and remain effective and usable for the periods
specified in the Registration Rights Agreement.
This Agreement, the Indenture, the Notes, the Subsidiary Note
Guarantees, the Registration Rights Agreement, the Warrant Agreement, the
Warrants, the Warrant Assumption Agreement, the Warrant Registration Rights
Agreement, the Merger Agreement, the Voting Agreement and Irrevocable Proxy,
the Credit Agreement, the LLC Assignment/Assumption Agreement and the LLC
Services Agreement (as defined below) are sometimes referred to collectively as
the "OPERATIVE DOCUMENTS."
4. DELIVERY AND PAYMENT.
(a) Delivery of, and payment of the Purchase Price for, the Units
shall be made at the offices of Davis Polk & Wardwell, New York, New York, or
such other location as may be mutually acceptable. Such delivery and payment
shall be made at 11:00 a.m. New York City time, on November 23, 1999 or at such
other time on the same date or such other date as shall be agreed upon by the
Initial Purchaser and the Issuers in writing. The time and date of such
delivery and the payment for the Series A Notes are herein called the "CLOSING
DATE."
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(b) One or more Series A Notes and one or more Warrants, in
definitive global form, registered in the name of Cede & Co., as nominee of The
Depository Trust Company ("DTC"), having an aggregate principal amount or
purchase amount corresponding to the aggregate principal amount and purchase
amount of the Series A Notes and Warrants, respectively, sold pursuant to
Exempt Resales (collectively, the "GLOBAL SECURITIES"), shall be delivered by
the Issuers to the Initial Purchaser (or as the Initial Purchaser directs) in
each case with any transfer taxes thereon duly paid by the Issuers against
payment by the Initial Purchaser of the Purchase Price thereof by wire transfer
in immediately available funds to or upon the order of the Issuers. The Global
Securities shall be made available to the Initial Purchaser for inspection not
later than 9:30 a.m., New York City time, on the business day immediately
preceding the Closing Date.
5. AGREEMENTS OF THE ISSUERS AND THE GUARANTORS. As of the date
hereof, the Company, the Guarantors and Viking hereby agree with the Initial
Purchaser as follows:
(a) To advise the Initial Purchaser promptly and, if requested by
the Initial Purchaser, confirm such advice in writing, (i) of the issuance by
any state securities commission of any stop order suspending the qualification
or exemption from qualification of any Securities for offering or sale in any
jurisdiction designated by the Initial Purchaser pursuant to Section 5(e)
hereof, or the initiation of any proceeding by any state securities commission
or any other federal or state regulatory authority for such purpose and (ii) of
the happening of any event during the period referred to in Section 5(c) below
that makes any statement of a material fact made in the Preliminary Offering
Memorandum or the Offering Memorandum untrue or that requires any additions to
or changes in the Preliminary Offering Memorandum or the Offering Memorandum in
order to make the statements therein not misleading. The Issuers and the
Guarantors shall use their best efforts to prevent the issuance of any stop
order or order suspending the qualification or exemption of any Securities
under any state securities or Blue Sky laws and, if at any time any state
securities commission or other federal or state regulatory authority shall
issue an order suspending the qualification or exemption of any Securities
under any state securities or Blue Sky laws, the Issuers and the Guarantors
shall use their best efforts to obtain the withdrawal or lifting of such order
at the earliest possible time; PROVIDED, HOWEVER, that neither the Issuers nor
the any of the Guarantors shall be required in connection therewith to qualify
as a foreign corporation in any jurisdiction in which it is not now so
qualified or to take any action that would subject it to general consent to
service of process or taxation, other than as to matters and transactions
relating to the Preliminary Offering Memorandum, the Offering Memorandum or
Exempt Resales, in any jurisdiction in which it is not now so subject.
(b) To furnish the Initial Purchaser and those persons identified
by the Initial Purchaser to the Issuers as many copies of the Preliminary
Offering Memorandum and the Offering Memorandum, and any amendments or
supplements thereto, as the Initial Purchaser may reasonably request for the
time period specified in Section 5(c). Subject to the Initial Purchaser's
compliance with its representations and warranties and agreements set forth in
Section 8 hereof, each of the Issuers, the Guarantors and Viking consents to
the use of the Preliminary Offering Memorandum, and any amendments and
supplements thereto required pursuant hereto, by the Initial Purchaser in
connection with Exempt Resales.
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(c) During such period as in the opinion of counsel for the Initial
Purchaser, an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchaser and in connection with
market-making activities of the Initial Purchaser for so long as any Series A
Notes or Warrants are outstanding, (i) not to make any amendment or supplement
to the Offering Memorandum of which the Initial Purchaser shall not previously
have been advised or to which the Initial Purchaser shall reasonably object
after being so advised and (ii) to prepare promptly upon the Initial Purchaser's
reasonable request, any amendment or supplement to the Offering Memorandum which
may be necessary or advisable in connection with such Exempt Resales or such
market-making activities.
(d) If, during the period referred to in Section 5(c) above, any
event shall occur or condition shall exist as a result of which, in the opinion
of counsel to the Initial Purchaser, it becomes necessary to amend or supplement
the Offering Memorandum in order to make the statements therein, in the light of
the circumstances when such Offering Memorandum is delivered to an Eligible
Purchaser, not misleading, or if, in the opinion of counsel to the Initial
Purchaser, it is necessary to amend or supplement the Offering Memorandum to
comply with any applicable law, forthwith to prepare an appropriate amendment or
supplement to such Offering Memorandum so that the statements therein, as so
amended or supplemented, will not, in the light of the circumstances when it is
so delivered, be misleading, or so that such Offering Memorandum will comply
with applicable law, and to furnish to the Initial Purchaser and such other
persons as the Initial Purchaser may designate such number of copies thereof as
the Initial Purchaser may reasonably request.
(e) Prior to the sale of all Units pursuant to Exempt Resales as
contemplated hereby, to cooperate with the Initial Purchaser and counsel to the
Initial Purchaser in connection with the registration or qualification of the
Units for offer and sale to the Initial Purchaser and pursuant to Exempt Resales
under the securities or Blue Sky laws of such jurisdictions as the Initial
Purchaser may request and to continue such registration or qualification in
effect so long as required for Exempt Resales and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; PROVIDED, HOWEVER, that none of the Issuers,
the Guarantors or Viking shall be required in connection therewith to qualify as
a foreign corporation in any jurisdiction in which it is not now so qualified or
to take any action that would subject it to general consent to service of
process or taxation other than as to matters and transactions relating to the
Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in
any jurisdiction in which it is not now so subject.
(f) So long as the Notes or Warrants are outstanding, (i) to mail
or, with the affirmative consent of any record holder of any of the Notes or
Warrants to whom such transmittal is sent, to transmit via email or, with such
party's affirmative consent, otherwise make electronically available, and to
make generally available as soon as practicable after the end of each fiscal
year to the record holders of the Notes or Warrants, as applicable, a financial
report of the Company and its subsidiaries on a consolidated basis (and a
similar financial report of all unconsolidated subsidiaries, if any), all such
financial reports to include a consolidated balance sheet, a consolidated
statement of operations, a consolidated statement of cash flows and a
consolidated statement of shareholders' equity as of the end of and for such
fiscal year, together with comparable information as of the end of and for the
preceding year, certified by the Company's independent public accountants, and
(ii) to mail or, with the affirmative consent of
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any record holder of any of the Notes or Warrants to whom such transmittal is
sent, to transmit via email or, with such party's affirmative consent,
otherwise make electronically available, and to and make generally available
as soon as practicable after the end of each quarterly period (except for the
last quarterly period of each fiscal year) to such holders, a consolidated
balance sheet, a consolidated statement of operations and a consolidated
statement of cash flows as of the end of and for such period, and for the
period from the beginning of such year to the close of such quarterly period,
together with comparable information for the corresponding periods of the
preceding year.
(g) So long as the Notes or Warrants are outstanding, to furnish to
the Initial Purchaser as soon as available copies of all reports or other
communications furnished by the Issuers or the Guarantors to their respective
security holders or furnished to or filed with the Commission or any national
securities exchange on which any class of securities of either of the Issuers or
any of the Guarantors is listed and such other publicly available information
concerning the Issuers and/or their subsidiaries as the Initial Purchaser may
reasonably request.
(h) So long as any of the Series A Notes or the Warrants remain
outstanding and during any period in which the Company or any of the Guarantors
is not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), to make available to any holder thereof in
connection with any sale thereof and any prospective purchaser thereof from such
holder, the information ("RULE 144A INFORMATION") required by Rule 144A(d)(4)
under the Act.
(i) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the obligations of the Issuers and the
Guarantors under this Agreement, including: (i) the fees, disbursements and
expenses of counsel to the Issuers and the Guarantors and accountants of the
Issuers and the Guarantors in connection with the sale and delivery of the Units
to the Initial Purchaser and pursuant to Exempt Resales, and all other fees and
expenses in connection with the preparation, printing, filing and distribution
of the Preliminary Offering Memorandum, the Offering Memorandum and all
amendments and supplements to any of the foregoing (including financial
statements), including the mailing and delivering of copies thereof to the
Initial Purchaser and persons designated by it in the quantities specified
herein, (ii) all costs and expenses related to the transfer and delivery of the
Units to the Initial Purchaser and pursuant to Exempt Resales, including any
transfer or other taxes payable thereon, (iii) all costs of printing or
producing this Agreement, the other Operative Documents and any other agreements
or documents in connection with the offering, purchase, sale or delivery of the
Units, (iv) all expenses in connection with the registration or qualification of
the Units for offer and sale under the securities or Blue Sky laws of the
several states and all costs of printing or producing any preliminary and
supplemental Blue Sky memoranda in connection therewith (including the filing
fees and reasonable fees and disbursements of counsel for the Initial Purchaser
in connection with such registration or qualification and memoranda relating
thereto), (v) the cost of printing certificates representing the Series A Notes
and the Warrants, (vi) all expenses and listing fees in connection with the
application for quotation of the Series A Notes, the Warrants and the Units in
the National Association of Securities Dealers, Ic. ("NASD") Automated Quotation
System - PORTAL ("PORTAL"), (vii) the fees and expenses of the Trustee and the
Trustee's counsel in connection with the Indenture, the Notes and the Subsidiary
Guarantees,
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(viii) the costs and charges of any transfer agent, registrar and/or
depositary (including DTC), (ix) any fees charged by rating agencies for the
rating of the Notes, (x) all costs and expenses of the Exchange Offer and any
Registration Statement, as set forth in the Registration Rights Agreement,
(xi) the fees and expenses of the Warrant Agent and the Warrant Agent's
counsel in connection with the Warrant Agreement, and the Warrants (xii) all
costs and expenses of the Warrant Registration Statement, as set forth in the
Warrant Registration Rights Agreement, and (xiii) all other costs and
expenses incident to the performance of the obligations of the Issuers and
the Guarantors hereunder for which provision is not otherwise made in this
Section. Notwithstanding the foregoing, the Issuers shall not be required (A)
to pay for any fees and disbursements of counsel for the Initial Purchaser
(other than those paid in connection with the registration or qualification
of the Units for offer and sale under the securities or Blue Sky laws and the
preparation of any preliminary and supplemental Blue Sky memoranda in
connection therewith) or (B) in connection with any "road show," to reimburse
the Initial Purchaser for the expense of chartering any aircraft or any
out-of-pocket expenses of personnel of the Initial Purchaser in connection
with the road show.
(j) To use its reasonable best efforts to effect the inclusion of
the Series A Notes, the Warrants and the Units in PORTAL and to maintain the
listing of such Securities on PORTAL for so long as they are outstanding or, in
the case of the Warrants, until disposed of pursuant to an effective
Registration Statement or distributed to the public pursuant to Rule 144 under
the Act.
(k) To use its reasonable best efforts to obtain the approval of
DTC for "book-entry" transfer of the Notes and the Warrants, and to comply with
all of its agreements set forth in the representation letters to DTC relating to
the approval of the Notes and the Warrants by DTC for "book-entry" transfer.
(l) During the period beginning on the date hereof and continuing
to and including the Closing Date, not to offer, sell, contract to sell or
otherwise transfer or dispose of any debt securities or common stock of the
Issuers or any of the Guarantors or any warrants, rights or options to purchase
or otherwise acquire debt securities or common stock of the Issuers or the
Guarantors substantially similar to the Notes, the Warrants or the Warrant
Shares (other than (i) the Units and (ii) commercial paper issued in the
ordinary course of business), without the prior written consent of the Initial
Purchaser.
(m) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act) that
would be integrated with the sale of the Units to the Initial Purchaser or
pursuant to Exempt Resales in a manner that would require the registration of
any such sale of the Units under the Act.
(n) Not to voluntarily claim, and to actively resist any attempts
to claim, the benefit of any usury laws against the holders of any Notes.
(o) To cause the Exchange Offer to be made in the appropriate form
to permit Series B Notes to be offered in exchange for the Series A Notes to
comply with all applicable federal and state securities laws in connection with
the Exchange Offer.
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(p) To comply with all of its agreements set forth in the
Registration Rights Agreement and the Warrant Registration Rights Agreement.
(q) To cause the Merger to be consummated (subject to the terms and
conditions set forth in the Merger Agreement) on the Closing Date concurrently
with the closing hereunder of the offering of the Units.
(r) To use its reasonable best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it prior
to the Closing Date and to satisfy all conditions precedent to the delivery of
the Units.
(s) For so long as any of the Securities are outstanding and if, in
the reasonable judgment of the Initial Purchaser or its counsel, the Initial
Purchaser or any of its affiliates (as defined in the rules and regulations
under the Securities Act) is required to deliver a prospectus (any such
prospectus, a "MARKET MAKING PROSPECTUS") in connection with sales of the
Securities, to (i) provide the Initial Purchaser, without charge, as many copies
of the Market Making Prospectus as the Initial Purchaser may reasonably request,
(ii) periodically amend the Registration Statement or the Warrant Registration
Statement so that the information contained in the Registration Statement
complies with the requirements of Section 10(a) of the Securities Act, (iii)
amend the Registration Statement, the Warrant Registration Statement or amend or
supplement the Market Making Prospectus when necessary to reflect any material
changes in the information provided therein and promptly file such amendment or
supplement with the Commission, (iv) provide the Initial Purchaser with copies
of each amendment or supplement so filed and such other documents, including
opinions of counsel and "comfort" letters, as the Initial Purchaser may
reasonably request and (v) indemnify the Initial Purchaser with respect to any
Market Making Prospectus and, if applicable, contribute to any amount paid or
payable by the Initial Purchaser in a manner substantially identical to that
specified in Section 9 hereof (with appropriate modifications). The Issuers and
the Guarantors consent to the use, subject to the provisions of the Securities
Act and the state securities or Blue Sky laws of the jurisdictions in which the
Units are offered by the Initial Purchaser, of each Market Making Prospectus.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND
THE GUARANTORS. As of the date hereof, each of the Company and the Guarantors
represents and warrants to, and agrees with, of the Initial Purchaser that:
(a) The Preliminary Offering Memorandum as of its date did not, and
the Offering Memorandum as of the date hereof and the Closing Date does not and
will not, and any supplement or amendment to them will not, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall not apply
to statements in or omissions from the Preliminary Offering Memorandum or the
Offering Memorandum (or any supplement or amendment thereto) based upon
information relating to the Initial Purchaser furnished to the Company in
writing by the Initial Purchaser expressly for use therein. No stop order
preventing the use of the Preliminary Offering Memorandum or the Offering
Memorandum, or any amendment or supplement thereto, or any order asserting that
any
10
of the transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued.
(b) Each of the Company and its subsidiaries has been duly
organized, is validly existing as a company in good standing under the laws of
its jurisdiction of organization and has the requisite power and authority to
carry on its business as described in the Preliminary Offering Memorandum and
the Offering Memorandum and to own, lease and operate its properties, and each
is duly qualified and is in good standing as a foreign entity authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not (i) have a material adverse effect on the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole, or (ii) in any manner draw into question
the validity of this Agreement or any of the other Operative Documents (the
events referred to in clauses (i) or (ii), each a "MATERIAL ADVERSE EFFECT").
(c) All equity interests of the Company have been duly authorized
and validly issued and are fully paid and, if applicable, non-assessable and not
subject to any preemptive or similar rights.
(d) The entities listed on Schedule A hereto are the only
subsidiaries, direct or indirect, of the Company. All of the outstanding equity
interests of each of the Company's subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable, and are owned by the
Company (except as otherwise described on Schedule A), directly or indirectly
through one or more subsidiaries, free and clear of any security interest,
claim, lien, encumbrance or adverse interest of any nature (each, a "LIEN")
(other than any Liens arising under the Credit Agreement).
(e) This Agreement has been duly authorized, executed and delivered
by the Company and each of the Guarantors.
(f) The Indenture has been duly authorized by the Company and each
of the Guarantors and, on the Closing Date, will have been validly executed and
delivered by the Company and each of the Guarantors. When the Indenture has
been duly executed and delivered by the Company and each of the Guarantors, the
Indenture will be a valid and binding agreement of the Company and each of the
Guarantors, enforceable against the Company and each of the Guarantors in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. On
the Closing Date, the Indenture will conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the "TIA" or "TRUST
INDENTURE ACT"), and the rules and regulations of the Commission applicable to
an indenture which is qualified thereunder.
(g) The Series A Notes have been duly authorized and, on the
Closing Date, will have been validly executed and delivered by the Company.
When the Series A Notes have been issued, executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
the Initial Purchaser in accordance with the terms of this Agreement,
11
the Series A Notes will be entitled to the benefits of the Indenture and will
be valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability. On the Closing Date, the Series A Notes will conform
in all material respects as to legal matters to the description thereof
contained in the Offering Memorandum.
(h) On the Closing Date, the Series B Notes will have been duly
authorized by the Company. When the Series B Notes are issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Series B Notes will be entitled to the benefits of the Indenture
and will be the valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(i) The Subsidiary Note Guarantees in respect of the Series A Notes
have been duly authorized by each Guarantor and, on the Closing Date, will have
been duly executed and delivered by each such Guarantor. When the Series A
Notes have been issued, executed and authenticated in accordance with the
Indenture and delivered to and paid for by the Initial Purchaser in accordance
with the terms of this Agreement, the Subsidiary Note Guarantees will be
entitled to the benefits of the Indenture and will be the valid and binding
obligation of each Guarantor, enforceable against each such Guarantor in
accordance with its terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principals of general applicability. On
the Closing Date, the Subsidiary Note Guarantees will conform in all material
respects as to legal matters to the description thereof contained in the
Offering Memorandum.
(j) The Subsidiary Note Guarantees in respect of the Series B Notes
have been duly authorized by each Guarantor and, when the Series B Notes have
been issued, will have been duly executed and delivered by each such Guarantor.
When the Series B Notes have been issued, executed and authenticated in
accordance with the terms of the Exchange Offer and the Indenture, the
Subsidiary Note Guarantees will be entitled to the benefits of the Indenture and
will be the valid and binding obligation of each Guarantor, enforceable against
each such Guarantor in accordance with its terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability. When the Series B Notes are issued, authenticated and
delivered, the Subsidiary Note Guarantees in respect of the Series B Notes will
conform in all material respects as to legal matters to the description thereof
in the Offering Memorandum.
(k) The Registration Rights Agreement has been duly authorized by
the Company and the Guarantors and, on the Closing Date, will have been duly
executed and delivered by the Company and the Guarantors. When the Registration
Rights Agreement has been duly executed and delivered, the Registration Rights
Agreement will be a valid and binding agreement of the
12
Company and the Guarantors, enforceable against the Company and the
Guarantors in accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability. On the Closing Date, the Registration Rights
Agreement will conform in all material respects as to legal matters to the
description thereof in the Offering Memorandum.
(l) Upon the effectiveness of the Merger, the Company will succeed
to and assume all of the obligations of Viking under this Agreement, the Warrant
Agreement and the Warrants, and each of this Agreement, the Warrant Agreement
and the Warrants will be the valid and binding agreement or obligations, as the
case may be, of the Company, enforceable against the Company in accordance with
its or their terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability. On the Closing Date,
the Warrant Agreement and the Warrants will conform in all material respects as
to legal matters to the description thereof in the Offering Memorandum.
(m) Each of the Warrant Assumption Agreement and the Warrant
Registration Rights Agreement has been duly authorized by the Company, and, on
the Closing Date, will have been duly executed and delivered by the Company.
When the Warrant Assumption Agreement and the Warrant Registration Rights
Agreement have been duly executed and delivered, each will be a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) the availability of equitable remedies may be limited by equitable
principles of general applicability. On the Closing Date, the Warrant
Registration Rights Agreement will conform in all material respects as to legal
matters to the description thereof in the Offering Memorandum.
(n) The Company has duly authorized and reserved for issuance the
Warrant Shares to be issued upon the exercise of the Warrants and, when issued
and delivered upon the exercise of the Warrants against payment of the exercise
price as provided in the Warrant Agreement, the Warrant Shares will have been
validly issued and will be fully paid and non assessable, and the issuance of
the Warrant Shares will not be subject to any preemptive or similar rights. On
the Closing date, the Warrant Shares will conform in all material respects as to
legal matters to the description thereof in the Offering Memorandum.
(o) The Bill of Sale, Contribution and Assignment/Assumption
Agreement of Operating Assets and Liabilities (the "LLC Assignment/Assumption
Agreement") between the Company and Merrill Communications LLC (the "LLC") and
the Administrative Services Agreement (the "LLC Services Agreement") between the
Company and Merrill Communications LLC (together, the LLC Agreements") have been
duly authorized by the Company and Merrill Communications LLC and, on the
Closing Date, will have been duly executed and delivered by the Company and
Merrill Communications LLC. When the LLC Agreements have been duly executed and
delivered, the LLC Agreements will be valid and binding agreements of the
Company and Merrill Communications LLC, enforceable against the Company and
Merrill Communications LLC in accordance with its terms, except as (i) the
enforceability thereof may
13
be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(p) All indebtedness of the Company that will be repaid with the
proceeds of the issuance and sale of the Units was incurred, and the
indebtedness represented by the Series A Notes is being incurred, for proper
purposes and in good faith; and the Company was, at the time of the incurrence
of such indebtedness that will be repaid with the proceeds of the issuance and
sale of the Units, and will be on the Closing Date (after giving effect to the
application of the proceeds from the issuance of the Units) solvent, and had at
the time of the incurrence of such indebtedness that will be repaid with the
proceeds of the issuance and sale of the Units and will have on the Closing Date
(after giving effect to the application of the proceeds from the issuance of the
Units) sufficient capital for carrying on its respective business and was, at
the time of the incurrence of such indebtedness that will be repaid with the
proceeds of the issuance and sale of the Units, and will be on the Closing Date
(after giving effect to the application of the proceeds from the issuance of the
Units) able to pay its respective debts as they mature.
(q) Neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws or in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound, except for such defaults
which, singly or in the aggregate, would not have a Material Adverse Effect.
(r) The execution, delivery and performance of this Agreement and
the other Operative Documents by the Company and the Guarantors, to the extent
each is a party hereto and thereto, and compliance by the Company and the
Guarantors with all provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not (i) require any consent,
approval, authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under federal or
state securities or Blue Sky laws or such as have been or prior to the Closing
Date will be obtained), (ii) conflict with or constitute a breach of any of the
terms or provisions of, or a default under, (A) the charter or by-laws of the
Company or any of its subsidiaries or (B) any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is material to the Company
and its subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
their respective property is bound, (iii) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of any court
or any governmental body or agency having jurisdiction over the Company, any of
its subsidiaries or their respective property, (iv) result in the imposition or
creation of (or the obligation to create or impose) a Lien under, any agreement
or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or their respective property is
bound (other than any liens arising under the Credit Agreement), or (v) result
in the termination, suspension or revocation of any Authorization (as defined
below) of the Company or any of its subsidiaries or result in any other
impairment of the rights of the holder of any such Authorization; except in the
case of clauses (i), (ii)(B), (iv) and (v) as would not, singly or in the
aggregate, have a Material Adverse Effect or an adverse effect on the validity
of the obligations
14
of the Company or the Guarantors under this Agreement, the Indenture, the
Notes, the Subsidiary Note Guarantees, the Registration Rights Agreement, the
Warrant Agreement, the Warrant Registration Rights Agreement or the Warrant
Assumption Agreement, or the ability of the Company or the Guarantors to
perform such obligations.
(s) No action has been taken and no law, statute, rule or
regulation or order has been enacted, adopted or issued by any governmental
agency or body which prevents the execution, delivery and performance of any of
the Operative Documents or the issuance of the Units or suspends the sale of the
Units in any jurisdiction referred to in Section 5(e); and no injunction,
restraining order or other order or relief of any nature by a federal or state
court or other tribunal of competent jurisdiction has been issued with respect
to the Company or any of its subsidiaries which would prevent or suspend the
issuance or sale of the Units in any jurisdiction referred to in Section 5(e).
(t) Except as disclosed in the Offering Memorandum, there are no
legal or governmental proceedings pending or, to the Company's knowledge,
threatened to which the Company or any of its subsidiaries is or could be a
party or to which any of their respective property is or could be subject, which
would be reasonably expected to result, singly or in the aggregate, in a
Material Adverse Effect.
(u) Neither the Company nor any of its subsidiaries has violated
any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), any
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), any provisions of the Foreign Corrupt Practices Act or the rules and
regulations promulgated thereunder or any provisions of the Truth in
Negotiations Act or the rules and regulations promulgated thereunder, except for
such violations which, singly or in the aggregate, would not have a Material
Adverse Effect.
(v) Except as disclosed in the Offering Memorandum, there are no
costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any Authorization, any
related constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a Material Adverse
Effect.
(w) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "AUTHORIZATION") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of the Company and
its subsidiaries is in compliance with all the terms and conditions thereof and
with the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including, without
limitation, the receipt of any
15
notice from any authority or governing body) which allows or, after notice or
lapse of time or both, would allow, revocation, suspension or termination of
any such Authorization or results or, after notice or lapse of time or both,
would result in any other impairment of the rights of the holder of any such
Authorization; and such Authorizations contain no restrictions that are
burdensome to the Company or any of its subsidiaries; except where such
failure to be valid and in full force and effect or to be in compliance, the
occurrence of any such event or the presence of any such restriction would
not, singly or in the aggregate, have a Material Adverse Effect.
(x) The Company and its subsidiaries own or possess, or can acquire
on reasonable terms, all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names ("INTELLECTUAL PROPERTY") currently
employed by them in connection with the business now operated by them except
where the failure to own or possess or otherwise be able to acquire such
intellectual property would not, singly or in the aggregate, have a Material
Adverse Effect; and neither the Company nor, to the Company's knowledge, any of
its subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any of such intellectual property
which, singly or in the aggregate, would have a Material Adverse Effect.
(y) There is no (i) significant unfair labor practice complaint,
grievance or arbitration proceeding pending or, to the Company's knowledge,
threatened against the Company or any of its subsidiaries before the National
Labor Relations Board or any state or local labor relations board, (ii) strike,
labor dispute, slowdown or stoppage pending or, to the Company's knowledge,
threatened against the Company or any of its subsidiaries or (iii) union
representation question existing with respect to the employees of the Company or
any of its subsidiaries, except in the case of clauses (i), (ii) and (iii) for
such actions which, singly or in the aggregate, would not have a Material
Adverse Effect. To the best knowledge of the Company, no collective bargaining
organizing activities are taking place with respect to the Company or any of its
subsidiaries.
(z) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(aa) The accountants, PricewaterhouseCoopers LLP, that have
certified the financial statements and supporting schedules included in the
Preliminary Offering Memorandum and the Offering Memorandum are independent
public accountants with respect to the Company and the Guarantors, as required
by the Act and the Exchange Act.
(bb) The historical financial statements, together with related
schedules and notes forming part of the Offering Memorandum (and any amendment
or supplement thereto), present fairly the consolidated financial position,
results of operations and changes in financial position
16
of the Company and its subsidiaries on the basis stated in the Offering
Memorandum at the respective dates or for the respective periods to which
they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data set
forth in the Offering Memorandum (and any amendment or supplement thereto)
are, in all material respects, accurately presented and prepared on a basis
consistent with such financial statements and the books and records of the
Company.
(cc) The pro forma financial statements included in the
Preliminary Offering Memorandum and the Offering Memorandum have been
prepared on a basis consistent with the historical financial statements of
the Company and its subsidiaries and give effect to assumptions used in the
preparation thereof on a reasonable basis and in good faith and present
fairly the historical and proposed transactions contemplated by the
Preliminary Offering Memorandum and the Offering Memorandum; and such pro
forma financial statements comply as to form in all material respects with
the requirements applicable to pro forma financial statements included in
registration statements on Form S-1 under the Act. The other pro forma
financial and statistical information and data included in the Offering
Memorandum are, in all material respects, accurately presented and prepared
on a basis consistent with the pro forma financial statements.
(dd) Neither the Company nor the Guarantors is or, after giving
effect to the offering and sale of the Units and the application of the net
proceeds thereof as described in the Offering Memorandum, will be, an
"investment company," as such term is defined in the Investment Company Act
of 1940, as amended.
(ee) Except as otherwise disclosed in the Offering Memorandum and
except for any agreement described in the Merger Agreement that will have
terminated at or prior to the Closing Date, there are no contracts,
agreements or understandings between the Company or the Guarantors and any
person granting such person the right to require the Company or the
Guarantors to file a registration statement under the Act with respect to any
securities of the Company or the Guarantors or to require the Company or the
Guarantors to include such securities with the Units registered pursuant to
any Registration Statement or Warrant Registration Statement.
(ff) Neither the Company nor any of its subsidiaries nor any
agent thereof acting on the behalf of them has taken, and none of them will
take, any action that might cause this Agreement or the issuance or sale of
the Units to violate Regulation T (12 C.F.R. Part 220), Regulation U (12
C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of
Governors of the Federal Reserve System.
(gg) No "nationally recognized statistical rating organization"
as such term is defined for purposes of Rule 436(g)(2) under the Act (i) has
imposed (or has informed the Company or the Guarantors that it is considering
imposing) any condition (financial or otherwise) on the Company's or any
Guarantor's retaining any rating assigned to the Company or the Guarantors or
any securities of the Company or the Guarantors or (ii) has indicated to the
Company or the Guarantors that it is considering (a) the downgrading,
suspension, or withdrawal of, or any review for a possible change that does
not indicate the direction of the possible change
17
in, any rating so assigned or (b) any change in the outlook for any rating of
the Company or the Guarantors or any securities of the Company or the
Guarantors.
(hh) Since the respective dates as of which information is given
in the Offering Memorandum other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there has not occurred any material adverse change or
any development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business, management or
operations of the Company and its subsidiaries, taken as a whole, (ii) there
has not been any material adverse change or any development involving a
prospective material adverse change in the capital stock or in the long-term
debt of the Company or any of its subsidiaries and (iii) neither the Company
nor any of its subsidiaries has incurred any material liability or
obligation, direct or contingent.
(ii) Except as described in the Offering Memorandum, each of the
Preliminary Offering and the Offering Memorandum, as of its date, contains
all the information specified in, and meeting the requirements of, Rule
144A(d)(4) under the Act.
(jj) When the Series A Notes are issued and delivered pursuant to
this Agreement, the Series A Notes will not be of the same class (within the
meaning of Rule 144A under the Act) as any security of the Company or the
Guarantors that is listed on a national securities exchange registered under
Section 6 of the Exchange Act or that is quoted in a United States automated
inter-dealer quotation system.
(kk) No form of general solicitation or general advertising (as
defined in Regulation D under the Act) was used by the Company or the
Guarantors or any of their representatives (other than the Initial Purchaser,
as to whom the Company and the Guarantors make no representation) in
connection with the offer and sale of the Units contemplated hereby,
including, but not limited to, articles, notices or other communications
published in any newspaper, magazine, or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have been
invited by any general solicitation or general advertising. No securities of
the same class as the Series A Notes or the Warrants have been issued and
sold by the Company or the Guarantors within the six-month period immediately
prior to the date hereof which is or will be integrated with the sale of the
Securities in a manner that would require the registration under the Act of
the offering contemplated by the Offering Memorandum.
(ll) Prior to the effectiveness of any Registration Statement,
the Indenture is not required to be qualified under the TIA, assuming the
accuracy of the Initial Purchaser's representations and warranties, and that
there has been no breach by the Initial Purchaser of its agreements, set
forth in Section 8 hereof.
(mm) Neither the Company, the Guarantors nor any of their
respective affiliates or any person acting on its or their behalf (other than
the Initial Purchaser, as to whom the Company and the Guarantors make no
representation) has engaged or will engage in any directed selling efforts
within the meaning of Regulation S under the Act ("REGULATION S") with
respect to the Units.
18
(nn) No registration under the Act is required for the sale of
the Units to the Initial Purchaser as contemplated hereby or for the Exempt
Resales assuming the accuracy of the Initial Purchaser's representations and
warranties, and that there has been no breach by the Initial Purchaser of its
agreements, set forth in Section 8 hereof.
(oo) Each of the representations and warranties set forth in
clauses (a) through (nn) of this Section 6 will be true and correct as of the
Effective Time upon consummation of the Merger.
(pp) Each certificate signed by any officer of the Company and
the Guarantors and delivered to the Initial Purchaser or counsel for the
Initial Purchaser shall be deemed to be a representation and warranty by the
Company and the Guarantors to the Initial Purchaser as to the matters covered
thereby.
The Company acknowledges that the Initial Purchaser and, for
purposes of the opinions to be delivered to the Initial Purchaser pursuant to
Section 10 hereof, counsel to the Company and the Guarantors and counsel to
the Initial Purchaser will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance. The Company further
acknowledges that Viking will rely upon the accuracy and truth of the
foregoing representations and hereby consents to such reliance.
7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF VIKING. As of
the date hereof, Viking represents and warrants to, and agrees with, the
Initial Purchaser that
(a) The Offering Memorandum as of the date hereof and the
Closing Date does not and will not, and any supplement or amendment to it
will not, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties
contained in this paragraph (a) shall not apply to statements in or omissions
from the Offering Memorandum (or any supplement or amendment thereto) based
upon information relating to the Initial Purchaser furnished to Viking in
writing by the Initial Purchaser expressly for use therein. No stop order
preventing the use of the Offering Memorandum, or any amendment or supplement
thereto, or any order asserting that any of the transactions contemplated by
this Agreement are subject to the registration requirements of the Act, has
been issued.
(b) Viking has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Minnesota.
(c) As of the date hereof and the Closing Date there are no
subsidiaries, direct or indirect, of Viking.
(d) This Agreement has been duly authorized, executed and
delivered by Viking.
(e) The Warrant Agreement has been duly authorized by Viking
and, on the Closing Date, will have been validly executed and delivered by
Viking. When the Warrant Agreement has been duly executed and delivered by
Viking, the Warrant Agreement will be a valid and binding agreement of
Viking, enforceable against it in accordance with its terms,
19
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally, and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability. On the Closing
Date, the Warrant Agreement will conform in all material respects as to legal
matters to the description thereof in the Offering Memorandum.
(f) All equity interests of Viking have been duly authorized and
validly issued and are fully paid and, if applicable, non-assessable and,
except as disclosed in the Offering Memorandum, not subject to any preemptive
or similar rights.
(g) The Warrants have been duly authorized by Viking and, on the
Closing Date, will have been validly executed and delivered by Viking. When
the Warrants are duly issued and countersigned, the Warrants will be a valid
and binding obligations of Viking, enforceable against Viking in accordance
with their terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally,
and (ii) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability. On the
Closing Date, the Warrants will conform in all material respects as to legal
matters to the description thereof in the Offering Memorandum.
(h) Viking is not in violation of its charter or by-laws or in
default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease or
other agreement or instrument that is material to Viking, to which Viking is
a party or by which Viking or its property is bound, except for such defaults
which, singly or in the aggregate, would not have a Material Adverse Effect.
(i) The execution, delivery and performance of this Agreement
and the other Operative Documents to which Viking is a party by Viking and
compliance by Viking with all provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will not (i)
require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such as
may be required under federal or state securities or Blue Sky laws or such as
have been or prior to the Closing Date will be obtained), (ii) conflict with
or constitute a breach of any of the terms or provisions of, or a default
under, (A) the charter or by-laws of Viking or (B) any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material
to Viking, to which Viking is a party or by which Viking or its property is
bound, (iii) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental body
or agency having jurisdiction over Viking or its property, (iv) result in the
imposition or creation of (or the obligation to create or impose) a Lien
under, any agreement or instrument to which Viking is a party or by which
Viking or its property is bound, or (v) result in the termination, suspension
or revocation of any Authorization of Viking or result in any other
impairment of the rights of the holder of any such Authorization; except in
the case of clauses (i), (ii)(B), (iv) and (v) as would not, singly or in the
aggregate, have a Material Adverse Effect or an adverse effect on the
validity of the obligations of Viking under this Agreement or the other
Operative Documents to which Viking is a party, or the ability of Viking to
perform such obligations.
(j) No action has been taken and no law, statute, rule or
regulation or order has been enacted, adopted or issued by any governmental
agency or body which prevents the
20
execution, delivery and performance by Viking of any of the Operative
Documents to which it is a party or the issuance of the Units or suspends the
sale of the Units in any jurisdiction referred to in Section 5(e); and no
injunction, restraining order or other order or relief of any nature by a
federal or state court or other tribunal of competent jurisdiction has been
issued with respect to Viking which would prevent or suspend the issuance or
sale of the Units in any jurisdiction referred to in Section 5(e).
(k) There are no legal or governmental proceedings pending or,
to Viking's knowledge, threatened to which Viking is or could be a party or
to which any of its property is or could be subject, which would be
reasonably expected to result, singly or in the aggregate, in a Material
Adverse Effect.
(l) Viking is not, and after giving effect to the offering and
sale of the Units as described in the Offering Memorandum, will not be, an
"investment company," as such term is defined in the Investment Company Act
of 1940, as amended.
(m) Except as disclosed in the Offering Memorandum, there are no
contracts, agreements or understandings between Viking and any person
granting such person the right to require Viking to file a registration
statement under the Act with respect to any securities of Viking or to
require Viking to include such securities with the Units registered pursuant
to any Registration Statement.
(n) Neither Viking nor any agent thereof acting on its behalf
has taken, and none of them will take, any action that might cause this
Agreement or the issuance or sale of the Units to violate Regulation T (12
C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12
C.F.R. Part 224) of the Board of Governors of the Federal Reserve System.
(o) When the Warrants are issued pursuant to the Warrant
Agreement, the Warrants will not be of the same class (within the meaning of
Rule 144A under the Act) as any security of Viking that is listed on a
national securities exchange registered under Section 6 of the Exchange Act
or that is quoted in a United States automated inter-dealer quotation system.
So long as any of the Warrants remains outstanding, Viking will make
available to any holder thereof in connection with any sale thereof and any
prospective purchaser thereof from such holder, Rule 144A Information with
respect to Viking.
(p) Since the respective dates as of which information is given
in the Offering Memorandum other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there has not occurred any material adverse change or
any development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business, management or
operations of Viking, (ii) there has not been any material adverse change or
any development involving a prospective material adverse change in the
capital stock or in the long-term debt of Viking and (iii) Viking has not
incurred any material liability or obligation, direct or contingent.
(q) No form of general solicitation or general advertising (as
defined in Regulation D under the Act) was used by Viking or any of its
representatives (other than the Initial Purchaser, as to whom Viking makes no
representation) in connection with the offer and
21
sale of the Units contemplated hereby, including, but not limited to,
articles, notices or other communications published in any newspaper,
magazine, or similar medium or broadcast over television or radio, or any
seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. No securities of the same class as the
Warrants, Warrant Shares or the Units have been issued and sold by Viking
within the six-month period immediately prior to the date hereof which is or
will be integrated with the sale of the Securities in a manner that would
require the registration under the Act of the offering contemplated by the
Offering Memorandum.
(r) Neither Viking, any of its affiliates or any person acting
on its behalf 9other than the Initial Purchaser, as to whom Viking makes not
representation) has engaged or will engage in any directed selling efforts
within the meaning of Regulation S with respect to the Units.
(s) No registration under the Act is required for the sale of
Units to the Initial Purchaser as contemplated hereby or for the Exempt
Resales assuming the accuracy of the Initial Purchaser's representations and
warranties, and that there has been no breach by the Initial Purchaser of its
agreements, set forth in Section 8 hereof.
(t) Each of the representations and warranties set forth in
clauses (a) through (s) of this Section 8 will be true and correct as of the
Effective Time upon consummation of the Merger.
(u) Each certificate signed by any officer of Viking and
delivered to the Initial Purchaser or counsel for the Initial Purchaser shall
be deemed to be a representation and warranty by Viking to the Initial
Purchaser as to the matters covered thereby.
Viking acknowledges that the Initial Purchaser and, for purposes of
the opinions to be delivered to the Initial Purchaser pursuant to Section 10
hereof, counsel to Viking and counsel to the Initial Purchaser will rely upon
the accuracy and truth of the foregoing representations and the Initial
Purchaser hereby consents to such reliance.
8. INITIAL PURCHASER'S REPRESENTATIONS AND WARRANTIES. The
Initial Purchaser represents and warrants to the Issuers and the Guarantors,
and agrees that:
(a) The Initial Purchaser is a QIB with such knowledge and
experience in financial and business matters as is necessary in order to
evaluate the merits and risks of an investment in the Units.
(b) The Initial Purchaser (A) is not acquiring the Units with a
view to any distribution thereof or with any present intention of offering or
selling any of the Units in a transaction that would violate the Act or the
securities laws of any state of the United States or any other applicable
jurisdiction and (B) will be reoffering and reselling the Units only to QIBs
in reliance on the exemption from the registration requirements of the Act
provided by Rule 144A.
(c) The Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by the
22
Initial Purchaser or any of its representatives in connection with the offer
and sale of the Units pursuant hereto, including, but not limited to,
articles, notices or other communications published in any newspaper,
magazine or similar medium or broadcast over television or radio, or any
seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
(d) The Initial Purchaser agrees that, in connection with Exempt
Resales, the Initial Purchaser will solicit offers to buy the Units only
from, and will offer to sell the Units only to, Eligible Purchasers. The
Initial Purchaser further agrees that it will offer to sell the Units only
to, and will solicit offers to buy the Units only from, Eligible Purchasers
that agree that (x) the Units purchased by them may be resold, pledged or
otherwise transferred within the time period referred to under Rule 144(k)
(taking into account the provisions of Rule 144(d) under the Act, if
applicable) under the Act, as in effect on the date of the transfer of such
Units, only (I) to the Company or any of its subsidiaries, (II) to a person
whom the seller reasonably believes is a QIB purchasing for its own account
or for the account of a QIB in a transaction meeting the requirements of Rule
144A under the Act, (III) in an offshore transaction (as defined in Rule 902
under the Act) meeting the requirements of Rule 904 of the Act, (IV) in a
transaction meeting the requirements of Rule 144 under the Act, (V) to an
institutional "accredited investor," as defined in Rule 501(a)(1), (2), (3),
or (7) of Regulation D under the Act, that, prior to such transfer, furnishes
the Trustee and/or the Warrant Agent, as the case may be, a signed letter
containing certain representations and agreements relating to the
registration of transfer of the relevant Securities (the form of which may be
obtained from the Trustee or Warrant Agent, as the case may be) and, if such
transfer is in respect of an aggregate purchase amount of Units less than
$250,000, an opinion of counsel acceptable to the Company that such transfer
is in compliance with the Act, (VI) in accordance with another exemption from
the registration requirements of the Act (and based upon an opinion of
counsel acceptable to the Company) or (VII) pursuant to an effective
registration statement and, in each case, in accordance with the applicable
securities laws of any state of the United States or any other applicable
jurisdiction and (y) they will deliver to each person to whom such Units or
an interest therein is transferred a notice substantially to the effect of
the foregoing.
(e) The Initial Purchaser and its affiliates or any person
acting on its or their behalf have not engaged or will not engage in any
directed selling efforts within the meaning of Regulation S with respect to
the Units.
The Initial Purchaser acknowledges that the Issuers, the Guarantors
and, for purposes of the opinions to be delivered to the Initial Purchaser
pursuant to Section 10 hereof, counsel to the Issuers and the Guarantors, and
counsel to the Initial Purchaser will rely upon the accuracy and truth of the
foregoing representations and the Initial Purchaser hereby consents to such
reliance.
9. INDEMNIFICATION.
(a) The Issuers and the Guarantors agree, jointly and severally, to
indemnify and hold harmless the Initial Purchaser, its directors, its officers
and each person, if any, who controls the Initial Purchaser within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages, liabilities and judgments
23
(including, without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action,
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Offering Memorandum (or any amendment or
supplement thereto), the Preliminary Offering Memorandum or any Rule 144A
Information provided by the Issuers or the Guarantors to any holder or
prospective purchaser of Securities pursuant to Section 5(h) or Section 7(o)
or caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue statement or omission
or alleged untrue statement or omission based upon information relating to
the Initial Purchaser furnished in writing to the Issuers by the Initial
Purchaser; PROVIDED, HOWEVER, that the foregoing indemnity agreement with
respect to any Preliminary Offering Memorandum shall not inure to the benefit
of the Initial Purchaser who failed to deliver an Offering Memorandum (as
then amended or supplemented, so long as the Offering Memorandum and any
amendment or supplement thereto was provided by the Issuers to the Initial
Purchaser in the requisite quantity and on a timely basis to permit proper
delivery on or prior to the Closing Date) to the person asserting any losses,
claims, damages and liabilities and judgements caused by any untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Offering Memorandum, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, if such material misstatement or
omission or alleged material misstatement or omission was cured in the
Offering Memorandum.
(b) The Initial Purchaser agrees to indemnify and hold harmless
the Issuers and the Guarantors and their respective directors and officers
and each person, if any, who controls (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act) the Issuers or the Guarantors, to
the same extent as the foregoing indemnity from the Issuers and the
Guarantors to the Initial Purchaser but only with reference to information
relating to the Initial Purchaser furnished in writing to either of the
Issuers by the Initial Purchaser expressly for use in the Preliminary
Offering Memorandum or the Offering Memorandum. The Issuers and the
Guarantors acknowledge that the following statements set forth in the
Preliminary Offering Memorandum and Offering Memorandum constitute the only
information furnished in writing by the Initial Purchaser for use in the
Preliminary Offering Memorandum or the Offering Memorandum: the name of the
Initial Purchaser; the first two sentences of the third paragraph under "Risk
Factors-We are controlled by principal shareholders whose interests may
differ from your interest"; the first two sentences of the third paragraph
under "Plan of Distribution"; the fifth sentence of the eight paragraph under
"Plan of Distribution"; and the tenth paragraph under "Plan of Distribution."
(c) In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant to Section 9(a) or 9(b)
(the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PARTY")
in writing and the indemnifying party shall assume the defense of such
action, including the employment of counsel reasonably satisfactory to the
indemnified party and the payment of all fees and expenses of such counsel,
as incurred (except that, in the case of any action in respect of which
indemnity may be sought pursuant to both Sections 9(a) and 9(b), no Initial
Purchaser shall be required to assume the defense of such action pursuant to
24
this Section 9(c), but may employ separate counsel and participate in the
defense thereof, but the fees and expenses of such counsel, except as
provided below, shall be at the expense of the Initial Purchaser. Any
indemnified party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing
by the indemnifying party, (ii) the indemnifying party shall have failed to
assume the defense of such action or employ counsel reasonably satisfactory
to the indemnified party or (iii) the named parties to any such action
(including any impleaded parties) include both the indemnified party and the
indemnifying party, and the indemnified party shall have been advised by such
counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to the indemnifying party
(in which case the indemnifying party shall not have the right to assume the
defense of such action on behalf of the indemnified party). In any such case,
the indemnifying party shall not, in connection with any one action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for all indemnified parties and all such
fees and expenses shll be reimbursed as they are incurred. Such firm shall
be designated in writing by the Initial Purchaser, in the case of the parties
indemnified pursuant to Section 9(a), and by the Company, in the case of
parties indemnified pursuant to Section 9(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and
all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii)
effected without its written consent if the settlement is entered into more
than twenty business days after the indemnifying party shall have received a
request from the indemnified party for reimbursement for the fees and
expenses of counsel (in any case where such fees and expenses are at the
expense of the indemnifying party) and, prior to the date of such settlement,
the indemnifying party shall have failed to comply with such reimbursement
request. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement or compromise of, or consent to
the entry of judgment with respect to, any pending or threatened action in
respect of which the indemnified party is or could have been a party and
indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
on claims that are or could have been the subject matter of such action and
(ii) does not include a statement as to or an admission of fault, culpability
or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section
9 is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Issuers and the Guarantors, on the one hand, and the Initial Purchaser, on the
other hand, from the offering of the Units or (ii) if the allocation provided by
clause 9(d)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
9(d)(i) above but also the relative fault of the Issuers and the Guarantors, on
the one hand, and the Initial Purchaser, on the other hand, in connection with
the statements or omissions which resulted in
25
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Issuers and the Guarantors, on the one hand and the Initial Purchaser, on the
other hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Units (after underwriting discounts and
commissions, but before deducting expenses) received by the Issuers, and the
total discounts and commissions received by the Initial Purchaser bear to the
total price to investors of the Units, in each case as set forth in the
Offering Memorandum. The relative fault of the Issuers and the Guarantors, on
the one hand, and the Initial Purchaser, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Issuers or the
Guarantors, on the one and, or the Initial Purchaser, on the other hand, and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Issuers and the Guarantors and the Initial Purchaser agree that
it would not be just and equitable if contribution pursuant to this Section
9(d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities or judgments referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such indemnified party in connection with
investigating or defending any matter, including any action, that could have
given rise to such losses, claims, damages, liabilities or judgments.
Notwithstanding the provisions of this Section 9, no Initial Purchaser shall
be required to contribute any amount in excess of the amount by which the
total discounts and commissions received by the Initial Purchaser exceeds the
amount of any damages which the Initial Purchaser has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
(e) The remedies provided for in this Section 9 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
10. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The
obligations of the Initial Purchaser to purchase the Units under this
Agreement are subject to the satisfaction of each of the following
conditions:
(a) All the representations and warranties of the Issuers and
the Guarantors contained in this Agreement shall be true and correct on the
Closing Date with the same force and effect as if made on and as of the
Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor shall any notice have been
given of any potential or intended downgrading, suspension or withdrawal of, or
of any review (or of any potential or intended review) for a possible change
that does not indicate the direction of the possible change in, any
26
rating of the Company or any Guarantors or any securities of the Company or
any Guarantors (including, without limitation, the placing of any of the
foregoing ratings on credit watch with negative or developing implications or
under review with an uncertain direction) by any "nationally recognized
statistical rating organization" as such term is defined for purposes of Rule
436(g)(2) under the Act, (ii) there shall not have occurred any change, nor
shall any notice have been given of any potential or intended change, in the
outlook for any rating of the Company or any Guarantors or any securities of
the Company or any Guarantors by any such rating organization and (iii) no
such rating organization shall have given notice that it has assigned (or is
considering assigning) a lower rating to the Notes than that on which the
Notes were marketed.
(c) Since the respective dates as of which information is given
in the Offering Memorandum other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there shall not have occurred any change or any
development involving a prospective change in the condition, financial or
otherwise, or the earnings, business, management or operations of the Company
and its subsidiaries, taken as a whole, (ii) there shall not have been any
change or any development involving a prospective change in the capital stock
or in the long-term debt of the Company or any of its subsidiaries and (iii)
neither the Company nor any of its subsidiaries shall have incurred any
liability or obligation, direct or contingent, the effect of which, in any
such case described in clause 10(c)(i), 10(c)(ii) or 10(c)(iii), in the
judgment of the Initial Purchaser, is material and adverse and, in the
judgment of the Initial Purchaser, makes it impracticable to market the Units
on the terms and in the manner contemplated in the Offering Memorandum.
(d) The Initial Purchaser shall have received on the Closing
Date a certificate, dated the Closing Date, signed by the president and the
chief financial officer of the Company, and certificates, dated the Closing
Date, signed by the Chief Executive Officer, Chairman of the Board, President
or a Vice President and the chief financial officer, principal accounting
officer or equivalent financial officer responsible for the financial
statements, of each of the Guarantors, (i) confirming the matters set forth
in Sections 6(hh), 10(a) (with respect to the Company or the relevant
Guarantor) and 10(b) and stating that the Company or the relevant Guarantor
has complied with all the agreements and satisfied all of the conditions
herein contained and required to be complied with or satisfied on or prior to
the Closing Date and (ii) substantially in the form of Exhibit C hereto,
respectively.
(e) The Initial Purchaser shall have received on the Closing
Date a certificate, dated the Closing Date, signed by the president and the
vice president of Viking, (i) confirming the matters set forth in Sections
7(p) and 10(a) (with respect to Viking) and stating that Viking has complied
with all the agreements and satisfied all of the conditions herein contained
and required to be complied with or satisfied on or prior to the Closing Date
and (ii) substantially in the form of Exhibit D hereto, respectively.
(f) The Initial Purchaser shall have received on the Closing
Date an opinion (reasonably satisfactory to the Initial Purchaser and counsel
for the Initial Purchaser), dated the Closing Date, of Steven J. Machov,
General Counsel for the Company, to the effect that:
27
(i) the Company and each of the Guarantors (other than Merrill
Communications LLC, as to which such counsel need express no opinion) is
(and, upon consummation of the Merger as of the Effective Time, will be)
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has (and, upon consummation of the Merger
as of the Effective Time, will have) the corporate power and authority to
carry on its business as described in the Offering Memorandum and to own,
lease and operate its properties;
(ii) the Company is in good standing as a foreign corporation
authorized to do business in each jurisdictions in which the nature of the
business of the Company or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified would not
have a Material Adverse Effect);
(iii) all the outstanding shares of capital stock of the Company,
upon consummation of the Merger as of the Effective Time, will have been
duly authorized and validly issued and will be fully paid and non-
assessable;
(iv) the Series A Notes and the Series B Notes have been duly
authorized by the Company;
(v) the Subsidiary Note Guarantees have been duly authorized by
each of the Guarantors (other than Merrill Communications LLC, as to which
such counsel need express no opinion);
(vi) each of the Indenture, this Agreement and the Registration
Rights Agreement has been duly authorized and, insofar as such matters are
governed by the laws of Minnesota or Washington, as the case may be,
executed and delivered by the Company and each of the Guarantors (other
than Merrill Communications LLC, as to which such counsel need express no
opinion);
(vii) the LLC Agreements have been duly authorized by the Company and
duly executed and delivered by the Company and Merrill Communications LLC
and (assuming due authorization by Merrill Communications LLC) will be
valid and binding agreements of the Company and Merrill Communications LLC,
enforceable against the Company and Merrill Communications LLC in
accordance with their terms, except (x) as such enforcement may be limited
by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally, (y) as such enforcement is subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (z) as rights to
indemnity and contribution thereunder may be limited by applicable law;
(viii) each of the Warrant Assumption Agreement and the Warrant
Registration Rights Agreement has been duly authorized and, insofar as such
matters are governed by the laws of Minnesota, executed and delivered by
the Company;
28
(ix) the execution, delivery and performance (as applicable) of this
Agreement, the Indenture, the Registration Rights Agreement, the Notes, the
Subsidiary Note Guarantees, the LLC Agreements, the Warrant Agreement, the
Warrants, the Warrant Registration Rights Agreement and the Warrant
Assumption Agreement by such of the Company and the Guarantors as is a
party thereto, the compliance by the Company and the Guarantors with all
applicable provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby do not and will not (i)
require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (other than
those required under federal securities and state "blue sky" laws, or the
laws of any foreign jurisdiction, as to which counsel need express no
opinion), (ii) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws of the Company or
the Guarantors (other than Merrill Communications LLC, as to which counsel
need express no opinion) or any indenture, loan agreement, mortgage, lease
or other agreement or instrument (other than any Operative Document) which
is (or, upon consummation of the Merger as of the Effective Time, will be)
material to the Company and the Guarantors, taken as a whole, to which the
Company or the Guarantors is (or, upon consummation of the Merger as of the
Effective Time, will be) a party or by which the Company or the Guarantors
or their respective property is (or, upon consummation of the Merger as of
the Effective Time, will be) bound, (iii) violate or conflict with any
applicable federal law, rule or regulation of the State of Minnesota or
Washington, (iv) to the best of such counsel's knowledge, result in the
imposition or creation of (or the obligation to create or impose) a Lien
under, any such agreement or instrument deemed material in clause (ii)
above, (v) to the best of such counsel's knowledge, result in the
termination, suspension or revocation of any Authorization (as defined
below) of the Company or the Guarantors or result in any other impairment
of the rights of the holder of any such Authorization or (vi) to the best
of such counsel's knowledge, conflict with any judgment, writ, injunction,
decree, order or ruling or any court or governmental authority binding on
the Company or the Guarantors;
(x) except as otherwise described in the Offering Memorandum, such
counsel does not know of any legal or governmental proceedings pending or
threatened to which the Company or the Guarantors is a party or to which
any of their respective property is subject, which would reasonably be
expected to result, singly or in the aggregate, in a Material Adverse
Effect;
(xi) to the best of such counsel's knowledge, there are (and, upon
consummation of the Merger as of the Effective Time, will be) no contracts,
agreements or understandings between the Company or the Guarantors and any
person (other than the Registration Rights Agreement and the Warrant
Registration Rights Agreement) granting such person the right to require
the Company or the Guarantors to file a registration statement under the
Act with respect to any securities of the Company or the Guarantors (except
as otherwise described in the Offering Memorandum) or to require the
Company or the Guarantors to include such securities with the Notes and the
Subsidiary Note Guarantees registered pursuant to any registration
statement; and
29
(xii) the statements in the Offering Memorandum under the caption
"Description of Capital Stock" insofar as such statements constitute a
summary of the legal matters or documents referred to therein, fairly
summarize in all material respects such legal matters or documents.
In addition, such counsel shall state that he has participated in
the preparation of the Offering Memorandum and any amendments or supplements
thereto, if applicable, and that although such counsel has not independently
verified the accuracy, completeness or fairness of the statements contained
therein, except as stated, no facts have come to such counsel's attention to
cause him to believe that, as of the date of the Offering Memorandum or as of
the Closing Date, the Offering Memorandum, as amended or supplemented, if
applicable (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which such
counsel need not express any belief) contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering the above opinions with respect to FMC Resource
Management Corporation, such counsel may rely on an opinion of Washington
counsel, and the opinion may so state therein.
The opinion of such counsel described in Section 10(f) above shall
be rendered to the Initial Purchaser at the request of the Company and the
Guarantors and shall so state therein.
(g) The Initial Purchaser shall have received on the Closing
Date an opinion (reasonably satisfactory to the Initial Purchaser and counsel
for the Initial Purchaser), dated the Closing Date, of Oppenheimer, Wolff &
Donnelly LLP, to the effect that:
(i) The Company is (and, upon consummation of the Merger as of the
Effective Time, will be) validly existing as a corporation in good standing
under the laws of the State of Minnesota and has (and, upon consummation of
the Merger as of the Effective Time, will have) the corporate power and
authority to carry on its business as described in the Offering Memorandum
and to own, lease and operate its properties;
(ii) Each of Merrill/New York Company ("Merrill/New York") and
Merrill/May Inc. ("Merrill/May") is validly existing as a corporation in
good standing under the laws of Minnesota;
(iii) Merrill Communications LLC has been duly organized and is
validly existing as a limited liability company in good standing under the
laws of Delaware and has (and, upon consummation of the Merger as of the
Effective Time, will have) company power and authority to carry on its
business as described in the Offering Memorandum and to own, lease and
operate its properties;
(iv) each of the Indenture, this Agreement, the Registration Rights
Agreement, the Warrant Registration Rights Agreement and the Warrant
Assumption Agreement has been duly authorized and, insofar as such matters
are governed by the laws of Minnesota, executed and delivered by the
Company;
30
(v) each of the Indenture, this Agreement and the Registration
Rights Agreement has been duly authorized and, insofar as such matters are
governed by the laws of Delaware, executed and delivered by Merrill
Communications LLC;
(vi) the LLC Agreements have been duly authorized, executed and
delivered by the Company and Merrill Communications LLC and are valid and
binding agreements of the Company and Merrill Communications LLC,
enforceable against the Company and Merrill Communications LLC in
accordance with their terms, except (x) as such enforcement may be limited
by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally, (y) as such enforcement is subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (z) as rights to
indemnity and contribution thereunder may be limited by applicable law;
(vii) the Series A Notes and the Series B Notes have been duly
authorized by the Company;
(viii) Merrill Communications LLC has duly authorized its Subsidiary
Note Guarantee;
(ix) upon effectiveness of the Merger, the Company will succeed to
and assume all of the obligations of Viking under this Agreement, the
Warrant Agreement and the Warrants;
(x) the Company has duly authorized and reserved for issuance the
Warrant Shares to be issued upon exercise of the Warrants and, the Warrant
Shares, upon issuance, delivery and payment therefor in accordance with the
terms of the Warrants will have been validly issued and will be fully paid
and non assessable, and the issuance of the Warrant Shares is, as of the
Closing Date, not subject to any preemptive or similar rights under
Minnesota law or the charter or by-laws of the Company;
(xi) the execution, delivery and performance (as applicable) of this
Agreement, the Indenture, the Registration Rights Agreement, the Notes, the
LLC Agreements, the Warrant Agreement, the Warrants, the Warrant
Registration Rights Agreement and the Warrant Assumption Agreement by the
Company, the compliance by the Company with all applicable provisions
hereof and thereof and the consummation of the transactions contemplated
hereby and thereby do not (w) require any consent, approval, authorization
or other order of, or qualification with, any Minnesota or federal court or
Minnesota or federal governmental body or agency (other than those required
under federal securities and state "blue sky" laws, or the laws of any
foreign jurisdiction, as to which counsel need express no opinion), (x)
conflict with or constitute a breach of any of the terms or provisions of,
or a default under, the articles of incorporation or by-laws of the Company
or the LLC Agreements, (y) violate or conflict with any applicable
Minnesota or federal law, rule or regulation or (z) to such counsel's
knowledge, based solely upon inquiry of appropriate officers of the
Company, conflict with, constitute a default
31
under or violate any judgment, writ, injunction, decree, order or ruling of
any Minnesota or federal court or governmental authority binding on the
Company, of which such counsel is aware;
(xii) the execution, delivery and performance of this Agreement, the
Indenture, the Registration Rights Agreement, the Notes and the LLC
Agreements by Merrill Communications LLC, the compliance by Merrill
Communications LLC with all applicable provisions hereof and thereof and
the consummation of the transactions contemplated hereby and thereby do not
(w) require any consent, approval, authorization or other order of, or
qualification with, Delaware or federal court or Delaware or federal
governmental body or agency, (x) conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the constitutive
documents of Merrill Communications LLC or the LLC Agreements, (y) violate
or conflict with any applicable Delaware corporate or federal law, rule or
regulation or (z) to such counsel's knowledge, based solely upon inquiry of
appropriate officers of Merrill Communications LLC, conflict with,
constitute a default under or violate any judgment, writ, injunction,
decree, order or ruling of any Delaware or federal court or governmental
authority binding on, Merrill Communications LLC, of which such counsel is
aware;
(xiii) the statements in the Offering Memorandum under the caption
"Description of Capital Stock" insofar as such statements constitute a
summary of the legal matters or documents referred to therein, fairly
summarize in all material respects such legal matters or documents.
The opinion of such counsel described in Section 10(g) above shall
be rendered to the Initial Purchaser at the request of the Company and the
Guarantors and shall so state therein.
(h) The Initial Purchaser shall have received on the Closing
Date an opinion (reasonably satisfactory to the Initial Purchaser and counsel
for the Initial Purchaser), dated the Closing Date, of Davis Polk & Wardwell
to the effect that:
(i) assuming the Series A Notes have been duly authorized by the
Company, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Initial Purchaser in
accordance with the terms of this Agreement and upon consummation of the
Merger as of the Effective Time, the Series A Notes will be entitled to the
benefits of the Indenture and will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except (x) as such enforcement may be limited by bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting creditors' rights
generally, (y) as such enforcement is subject to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and (z) to the extent that a waiver of
rights under any usury or stay law may be unenforceable; such counsel need
express no opinion, however, as to the applicability (and, if applicable,
the effect) of Section 548 of the United States Bankruptcy Code or any
comparable provision of state law to the questions addressed above or on
the conclusions expressed with respect thereto;
32
(ii) assuming the Subsidiary Note Guarantees have been duly
authorized, executed and delivered by each Guarantor and, assuming the
Series A Notes have been duly authorized by the Company, when the Series A
Notes are executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Initial Purchaser in
accordance with the terms of this Agreement and upon consummation of the
Merger as of the Effective Time, the Subsidiary Note Guarantees will be
valid and binding obligations of each Guarantor, enforceable against each
such Guarantor in accordance with their terms except (x) as such
enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance
or similar laws affecting creditors' rights generally, (y) as such
enforcement is subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law) and (z) to the extent that a waiver of rights under any usury or stay
law may be unenforceable; such counsel need express no opinion, however, as
to the applicability (and, if applicable, the effect) of Section 548 of the
United States Bankruptcy Code or any comparable provision of state law to
the questions addressed above or on the conclusions expressed with respect
thereto;
(iii) assuming the Indenture has been duly authorized, executed and
delivered by the Company and each of the Guarantors, the Indenture is (and,
upon consummation of the Merger as of the Effective Time, will be) a valid
and binding agreement of the Company and each of the Guarantors,
enforceable against the Company and each such Guarantor in accordance with
its terms, except (x) as such enforcement may be limited by bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors'
rights generally, (y) as such enforcement is subject to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and (z) to the extent that a waiver of
rights under any usury or stay law may be unenforceable; such counsel need
express no opinion, however, as to the applicability (and, if applicable,
the effect) of Section 548 of the United States Bankruptcy Code or any
comparable provision of state law to the questions addressed above or on
the conclusions expressed with respect thereto;
(iv) assuming the Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and each of the
Guarantors, the Registration Rights Agreement is (and, upon consummation of
the Merger as of the Effective Time, will be) a valid and binding agreement
of the Company and each of the Guarantors, enforceable against the Company
and each such Guarantor in accordance with its terms, except (x) as such
enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance
or similar laws effecting creditors' rights generally, (y) as such
enforcement is subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law) and (z) as rights to indemnity and contribution thereunder may be
limited by applicable law;
(v) assuming the Warrant Agreement has been duly authorized,
executed and delivered by Viking, the Warrant Agreement is a valid and
binding agreement
33
of Viking, enforceable against Viking in accordance with its terms,
except (x) as such enforcement may be limited by bankruptcy, insolvency,
fraudulent conveyance or similar laws effecting creditors' rights
generally, (y) as such enforcement is subject to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and (z) as rights to indemnity and
contribution thereunder may be limited by applicable law;
(vi) assuming the Warrants have been duly authorized by Viking, when
executed and countersigned in accordance with the provisions of the Warrant
and delivered to and paid for by the Initial Purchaser in accordance with
the terms of this Agreement, the Warrants will be the valid and binding
obligations of Viking, enforceable against Viking in accordance with its
terms, except (i) as such enforcement may be limited by bankruptcy,
insolvency, fraudulent conveyance or similar laws effecting creditors'
rights generally and (ii) as such enforcement is subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(vii) assuming the Warrant Registration Rights Agreement has been
duly authorized, executed and delivered by the Company, the Warrant
Registration Rights Agreement is (and, upon consummation of the Merger as
of the Effective Time, will be) a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except (x) as such enforcement may be limited by bankruptcy, insolvency,
fraudulent conveyance or similar laws effecting creditors' rights
generally, (y) as such enforcement is subject to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and (z) as rights to indemnity and
contribution thereunder may be limited by applicable law;
(viii) assuming the Warrant Assumption Agreement has been duly
authorized, executed and delivered by the Company, the Warrant Agreement as
amended by the Warrant Assumption Agreement is a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except (x) as such enforcement may be limited by
bankruptcy, insolvency, fraudulent conveyance or similar laws effecting
creditors' rights generally, (y) as such enforcement is subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (z) as rights to
indemnity and contribution thereunder may be limited by applicable law;
(ix) assuming the Warrant Assumption Agreement has been duly
authorized, executed and delivered by the Company, and assuming the
Warrants have been duly authorized by the Company, when executed and
countersigned in accordance with the provisions of the Warrant Agreement
and delivered to and paid for by the Initial Purchaser in accordance with
the terms of this Agreement, the Warrants will be valid and binding
obligations of the Company, enforceable against the Company in accordance
with its terms, except (x) as such enforcement may be limited by
bankruptcy, insolvency, fraudulent conveyance or similar laws effecting
creditors' rights generally, (y) as such enforcement is subject to general
principles
34
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (z) as rights to
indemnity and contribution thereunder may be limited by applicable law;
(x) the execution and delivery of this Agreement and the other
Operative Documents (other than the Credit Agreement and the LLC
Agreements) and compliance by the Company and the Guarantors to the extent
a party thereto with the provisions thereof will not conflict with,
constitute a default under or violate (x) any of the terms, conditions or
provisions of any of the Operative Documents, or (y) any Delaware
corporate, New York or federal law or regulation that in our experience is
normally applicable to general business corporations in relation to
transactions of the type contemplated by those documents (other than
federal and state securities or blue sky laws, as to which such counsel
need express no opinion);
(xi) no consent, approval, waiver, license or authorization or other
action by or filing with any governmental body or agency under Delaware
corporate, New York or federal law that in our experience is normally
applicable to general business corporations in relation to transactions of
the type contemplated by the Operative Documents (other than the Credit
Agreement and the LLC Agreements) is required in connection with the
execution and delivery by the Company or the Guarantors of this Agreement
and the other Operative Documents (other than the Credit Agreement and the
LLC Agreements) to the extent a party thereto or the consummation by the
Company or the Guarantors of its obligations thereunder, except for (x) the
applicable requirements of federal and state securities or blue sky laws,
as to which we express no opinion, and (y) those already obtained or made
and which are in full force and effect;
(xii) none of the Company, any of the Guarantors or Viking is or,
after giving effect to the offering and sale of the Units and the
application of the net proceeds therefrom as described in the Offering
Memorandum and upon consummation of the Merger as of the Effective Time,
will be, an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended;
(xiii) the statements in the Offering Memorandum under the captions
"Certain Relationships and Related Party Transactions," "Description of New
Credit Facility," "Description of Units," "Description of Notes,"
"Description of Warrants," "Description of Certain Provisions Applicable to
All Securities," "Certain Federal Income Tax Consequences" and "Plan of
Distribution" insofar as such statements or descriptions constitute a
summary of the legal matters or documents referred to therein, fairly
summarize in all material respects such legal matters or documents;
(xiv) the Indenture complies as to form in all material respects with
the requirements of the TIA, and the rules and regulations of the
Commission applicable to an indenture which is qualified thereunder;
35
(xv) it is not necessary in connection with the offer, sale and
delivery of the Units to the Initial Purchaser in the manner contemplated
by this Agreement or in connection with the initial placement of the Units
by the Initial Purchaser in the manner contemplated by the Offering
Memorandum pursuant to Exempt Resales to qualify the Indenture under the
TIA, and no registration under the Securities Act of the Securities is
required for the sale of the Units to the Initial Purchaser as contemplated
by this Agreement or for the initial placement of the Units by the Initial
Purchaser in the manner contemplated by the Offering Memorandum pursuant to
Exempt Resales assuming (i) the Initial Purchaser is a QIB, (ii) the
accuracy of, and compliance with, the Initial Purchaser's representations
and agreements contained in Section 8 of this Agreement, and (iii) the
accuracy of the agreements and representations of the Company set forth in
Sections 5(h) and (m) and 6(ii), (jj), (kk) and (mm) of this Agreement and
(iv) the accuracy of the agreements and representations of Viking set forth
in Sections 7(o), 7(q) and 7(r) of this Agreement; and such counsel need
express no opinion as to any other offer or sale.
In addition, such counsel shall state that it has participated in
the preparation of the Offering Memorandum and any amendments or supplements
thereto, if applicable, and that although such counsel has not independently
verified the accuracy, completeness or fairness of the statements contained
therein, except as stated, no facts have come to such counsel's attention to
cause it to believe that, as of the date of the Offering Memorandum or as of
the Closing Date, the Offering Memorandum, as amended or supplemented, if
applicable (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which such
counsel need not express any belief) contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
The opinion of such counsel described in this Section 10(h) shall
be rendered to the Initial Purchaser at the request of the Company, the
Guarantors and Viking and shall so state therein.
(i) The Initial Purchaser shall have received on the Closing
Date an opinion (reasonably satisfactory to the Initial Purchaser and counsel
for the Initial Purchaser), dated the Closing Date, of Dorsey & Whitney LLP,
to the effect that:
(i) Viking is a corporation duly incorporated, validly existing and
in good standing under the laws of Minnesota;
(ii) the execution and delivery of this Agreement, the Warrant
Agreement and the Warrants have been duly authorized by Viking; and
(iii) the execution, delivery and performance of this Agreement, the
Warrant Agreement and the Warrants do not conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the
articles of incorporation or by-laws of Viking.
36
The opinion of such counsel described in this Section 10(i) shall
be rendered to the Initial Purchaser at the request of Viking and shall so
state therein.
(j) On the Closing Date, the Initial Purchaser shall have
received copies of all opinions rendered in connection with the Merger
Agreement or the Credit Agreement, addressed (in the case of opinions
rendered in connection with the Credit Agreement) to the Initial Purchaser.
(k) The Initial Purchaser shall have received on the Closing
Date an opinion, dated the Closing Date, of Cleary, Gottlieb, Steen &
Hamilton, counsel for the Initial Purchaser, in form and substance reasonably
satisfactory to the Initial Purchaser.
(l) The Initial Purchaser shall have received, at the time this
Agreement is executed and at the Closing Date, letters dated the date hereof
or the Closing Date, as the case may be, in form and substance reasonably
satisfactory to the Initial Purchaser from PricewaterhouseCoopers LLP,
independent public accountants, containing the information and statements of
the type ordinarily included in accountants' "comfort letters" to the Initial
Purchaser with respect to the financial statements and certain financial
information contained in the Offering Memorandum.
(m) The Initial Purchaser shall have received, on the Closing
Date, an opinion (reasonably satisfactory to the Initial Purchaser and
counsel for the Initial Purchaser), dated the Closing Date, of Valuation
Research Company with respect to the solvency of the Company after giving
effect to the Investment, the Merger, and the other transactions contemplated
by the Operative Documents.
(n) Each condition to closing contemplated by the Credit
Agreement (other than the issuance and sale of the Series A Notes and the
Warrants pursuant hereto) shall have been satisfied or waived. There shall
exist at and as of the Closing Date (after giving effect to the transactions
contemplated by this Agreement and the other Operative Documents) no
conditions that would constitute a default (or an event that with notice or
the lapse of time, or both, would constitute a default) under the Credit
Agreement. On the Closing Date, the closing under the Credit Agreement shall
have been consummated on terms that conform in all material respects to the
description thereof in the Offering Memorandum and the Initial Purchaser
shall have received evidence satisfactory to it of the consummation thereof.
(o) Each condition to closing contemplated by the Merger
Agreement (other than the issuance and sale of the Series A Notes and the
Warrants pursuant hereto) shall have been satisfied or waived. There shall
exist at and as of the Closing Date (after giving effect to the transactions
contemplated by this Agreement and the other Operative Documents) no
conditions that would constitute a default (or an event that with notice or
the lapse of time, or both, would constitute a default) under the Merger
Agreement. The Company shall have delivered to the Initial Purchaser copies
of the Articles of Merger required under the Minnesota Business Corporation
Act ("MBCA") to be filed by the Secretary of State of the State of Minnesota
in the office thereof in order to effect the Merger, together with evidence
satisfactory to each of them as to the receipt thereof by the Secretary of
State of the State of Minnesota for such filing, and such Articles of Merger
shall, in accordance with the MBCA, specify that the Merger shall
37
become effective as of the Closing Date. On the Closing Date, the Merger
shall have been consummated on terms that conform in all material respects to
the description thereof in the Offering Memorandum, and the Initial Purchaser
shall have received evidence reasonably satisfactory to it of the
consummation thereof.
(p) On the Closing Date, the Investment shall have been consummated
on terms that conform in all material respects to the description thereof in the
Offering Memorandum, and the Initial Purchaser shall have received evidence
satisfactory to it of the consummation thereof.
(q) The Units, Notes and Warrants shall have been approved by the
NASD for trading and duly listed in PORTAL.
(r) The Initial Purchaser shall have received a counterpart,
conformed as executed, of (i) the Indenture which shall have been entered
into by the Company, the Guarantors and the Trustee, (ii) the Warrant
Agreement which shall have been entered into by Viking and the Warrant Agent
and (iii) the Warrant Assumption Agreement which shall have been entered into
by the Company and the Warrant Agent.
(s) The Company and the Guarantors shall have executed the
Registration Rights Agreement, and the Company shall have executed the
Warrant Registration Rights Agreement, and the Initial Purchaser shall have
received duly executed original copies thereof.
(t) Neither the Company nor the Guarantors shall have failed at
or prior to the Closing Date to perform or comply with any of the agreements
herein contained and required to be performed or complied with by the Company
or the Guarantors, as the case may be, at or prior to the Closing Date.
11. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This Agreement
shall become effective upon the execution and delivery of this Agreement by
the parties hereto. This Agreement may be terminated at any time on or prior
to the Closing Date by the Initial Purchaser by written notice to the Issuers
if any of the following has occurred: (i) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change
in economic conditions or in the financial markets of the United States or
elsewhere that, in the Initial Purchaser's judgment, is material and adverse
and, in the Initial Purchaser's judgment, makes it impracticable to market
the Units on the terms and in the manner contemplated in the Offering
Memorandum, (ii) the suspension or material limitation of trading in
securities or other instruments on the New York Stock Exchange, the American
Stock Exchange, the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange, the Chicago Board of Trade or the Nasdaq National Market or
limitation on prices for securities or other instruments on any such exchange
or the Nasdaq National Market, (iii) the suspension of trading of any
securities of the Company or the Guarantors on any exchange or in the
over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of
any court or other governmental authority which in the opinion of the Initial
Purchaser materially and adversely affects, or will materially and adversely
affect, the business, prospects, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole, (v) the declaration of
a banking moratorium by either federal or New York State authorities or (vi)
the taking of any action by any federal, state or local government or agency
in
38
respect of its monetary or fiscal affairs which in the opinion of the Initial
Purchaser has a material adverse effect on the financial markets in the
United States.
12. MISCELLANEOUS. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company or the
Guarantors, to Merrill Corporation, One Merrill Circle, St. Paul, Minnesota
55108 Attention: General Counsel; (ii) if to Viking, to Viking Merger Sub,
Inc. c/o DLJ Merchant Banking Partners II, L.P., 277 Park Avenue, New York,
NY 10172, Attention: William F. Dawson, Jr. and (iii) if to the Initial
Purchaser, c/o Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park
Avenue, New York, New York 10172, Attention: Syndicate Department, or in any
case to such other address as the person to be notified may have requested in
writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Issuers, the
Guarantors and the Initial Purchaser set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will
survive delivery of and payment for the Units, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf
of the Initial Purchaser, the officers or directors of the Initial Purchaser,
any person controlling an Initial Purchaser, either Issuer, the Guarantors,
the officers or directors of either Issuer or the Guarantors, or any person
controlling the Issuers or the Guarantors, (ii) acceptance of the Units and
payment for them hereunder and (iii) termination of this Agreement.
If for any reason the Units are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 11), the Issuers and the Guarantors agree
to reimburse the Initial Purchaser for all out-of-pocket expenses (including
the reasonable fees and disbursements of counsel) incurred by them.
Notwithstanding any termination of this Agreement, the Issuers shall be
liable for all expenses which they have agreed to pay pursuant to Section
5(i) hereof. The Issuers and the Guarantors also agree to reimburse the
Initial Purchaser and its officers, directors and each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act for any and all fees and expenses (including
without limitation the fees and expenses of counsel) incurred by them in
connection with enforcing their rights under this Agreement (including
without limitation its rights under Section 9).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Issuers, the
Guarantors, the Initial Purchaser, the Initial Purchaser's directors and
officers, any controlling persons referred to herein, the directors of the
Issuers and the Guarantors and their respective successors and assigns, all
as and to the extent provided in this Agreement, and no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include a purchaser of any of the Units
from the Initial Purchaser merely because of such purchase.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
39
Please confirm that the foregoing correctly sets forth the
agreement among the Company, Viking, the Guarantors and the Initial Purchaser.
Very truly yours,
MERRILL CORPORATION
By: /s/ Rick R. Atterbury
-------------------------------------
Name: Rick R. Atterbury
Title: Executive Vice President
VIKING MERGER SUB, INC.
By: /s/ Keith Palumbo
-------------------------------------
Name: Keith Palumbo
Title: Vice President
THE GUARANTORS NAMED
IN SCHEDULE A HERETO
By: /s/ Rick R. Atterbury
-------------------------------------
Name: Rick R. Atterbury
Title: Attorney-in-Fact
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Omar Karame
- -------------------------------------
Name: Omar Karame
Title: Vice President
SCHEDULE A
SUBSIDIARIES AND GUARANTORS
*Merrill Communications LLC
*Merrill Real Estate Company
*Merrill/Magnus Publishing Corporation
*Merrill/New York Company
*Merrill/May Inc.
*Merrill/ Alternatives, Inc.
*Merrill International Inc.
Merrill Corporation, Canada
793473 Ontario Ltd.
*FMC Resource Management Corporation
*Merrill Training & Technology, Inc.
*Merrill/Global, Inc.
Merrill Limited (UK)
Merrill France S.A.R.L. (France)
*Merrill/ Executech, Inc.
*Merrill/Daniels, Inc.
Document.com, Inc.
Cetara Corporation (80% ownership)
*Indicates subsidiaries that are Guarantors