Exhibit 10.1
EXECUTION COPY
$275,000,000
DOMINO'S PIZZA INTERNATIONAL, INC.
AND THE
GUARANTORS
SIGNATORIES HERETO
10 3/8% SENIOR SUBORDINATED NOTES DUE 2009
AMENDED AND RESTATED PURCHASE AGREEMENT
December 21, 1998
J.P. Morgan Securities Inc.
Goldman, Sachs & Co.
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
Ladies and Gentlemen:
Domino's Pizza International Payroll Services, Inc., a Delaware corporation
(the "Company"), proposes to issue and sell to the several Initial Purchasers
listed in Schedule I hereto (the "Initial Purchasers") $275,000,000 aggregate
principal amount of its 10 3/8% Senior Subordinated Notes due 2009 (the
"Notes"). The Notes will be issued pursuant to the provisions of an indenture to
be dated as of December 21, 1998 (the "Indenture") among the Company, the
guarantors listed on the signature pages hereof (the "Guarantors") and IBJ
Schroder Bank & Trust Company, as trustee (the "Trustee"). The Notes will be
fully and unconditionally guaranteed (the "Guarantees" and, with the Notes,
collectively the "Securities"), jointly and severally, on a senior subordinated
basis by each of the Guarantors. The Company and the Guarantors are collectively
referred to herein as the "Issuers." On the date hereof, the Company is an
indirect wholly-owned subsidiary of TISM, Inc., a Michigan corporation ("TISM").
The offering of the Securities is being made in connection with the
recapitalization of TISM (the "Recapitalization") pursuant to which, among other
things, (i) all of the capital stock of the Company will be distributed to TISM;
(ii) the Company will own, directly or indirectly through one or more wholly-
owned subsidiaries, all of the capital stock of all other subsidiaries of TISM;
and (iii) Domino's Pizza International Payroll Services, Inc. will change its
name to Domino's Inc. References in this Agreement to the "Company,"
"Subsidiaries" of the Company or to "Issuers" or "Guarantors" shall be
deemed to be references to such entities both before and immediately after
giving effect to the Recapitalization (it being understood that prior to the
Recapitalization the Company has no Subsidiaries).
The sale of the Securities to the Initial Purchasers will be made without
registration of the Securities under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon exemptions therefrom.
In connection with the sale of the Securities, the Company has prepared a
preliminary offering memorandum, dated November 24, 1998 (the "Preliminary
Memorandum"), and has prepared a final offering memorandum dated the date hereof
(the "Final Memorandum" and, with the Preliminary Memorandum, collectively, the
"Offering Memorandum"), for the information of the Initial Purchasers and for
delivery to prospective purchasers of the Securities.
The purchasers of the Securities and their direct and indirect transferees
will be entitled to the benefits of a Registration Rights Agreement, to be dated
as of the Closing Date and to be substantially in the form attached hereto as
Exhibit A (the "Registration Rights Agreement"), pursuant to which the Company
will file one or more registration statements with the Securities and Exchange
Commission (the "Commission") registering with the Commission the Securities or
the Exchange Securities referred to (and as defined) in such Registration Rights
Agreement.
The Issuers hereby agree with the Initial Purchasers as follows:
1. The Company agrees to issue and sell the Notes to the several Initial
Purchasers as hereinafter provided, and each Initial Purchaser, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Company the respective principal amount of Notes set forth opposite
such Initial Purchaser's name in Schedule I hereto at a price (the "Purchase
Price") equal to 97.00% of their principal amount plus accrued interest, if any,
from December 21, 1998 to the date of payment and delivery.
2. The Issuers understand that the Initial Purchasers intend (i) to offer
privately and pursuant to Regulation S under the Securities Act ("Regulation S")
their respective portions of the Securities as soon after this Agreement has
become effective as in the judgment of the Initial Purchasers is advisable and
(ii) initially to offer the Securities upon the terms set forth in this
Agreement and the Offering Memorandum.
The Issuers confirm that they have authorized the Initial Purchasers,
subject to the restrictions set forth below, to distribute copies of the
Offering Memorandum in connection with the offering of the Securities. Each
Initial Purchaser hereby makes to the Issuers the following representations and
agreements:
(i) it is a "qualified institutional buyer" within the meaning of
Rule 144A under the Securities Act; and
(ii) (A) neither it nor to its knowledge any person acting on its
behalf has solicited or will solicit offers for, or offer to sell, the
Securities by any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Securities Act ("Regulation D")) and
(B) it will solicit offers for the Securities only from, and will offer the
Securities only to, (x) in the case of offers inside the United States, persons
whom it reasonably believes to be "qualified institutional buyers" within the
meaning of Rule 144A under the Securities Act; and (y) in the case of offers
outside the
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United States, persons other than U.S. persons ("foreign purchasers," which term
shall include dealers or other professional fiduciaries in the United States
acting on a discretionary basis for foreign beneficial owners (other than an
estate or trust)) that, in each case, in purchasing the Securities are deemed to
have represented and agreed as provided in the Offering Memorandum;
With respect to offers and sales outside the United States, as described in
clause (ii)(B)(y) above, each Initial Purchaser hereby represents and agrees
with the Issuers that:
(i) it understands that no action has been or will be taken by the
Issuers that would permit a public offering of the Securities, or possession or
distribution of the Offering Memorandum or any other offering or publicity
material relating to the Notes, in any country or jurisdiction where action for
that purpose is required;
(ii) it will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Securities or has
in its possession or distributes the Offering Memorandum or any such other
material, in all cases at its own expense;
(iii) it understands that the Securities have not been and will not
be registered under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the Securities Act or pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act;
(iv) it has offered the Securities and will offer and sell the Notes
(x) as part of its distribution at any time and (y) otherwise until 40 days
after the later of the commencement of the Offering and the Closing Date, only
in accordance with Rule 903 of Regulation S. Accordingly, neither such Initial
Purchaser, nor any of its Affiliates, nor any persons acting on its behalf has
engaged or will engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Notes, and such Initial Purchaser, its
Affiliates and any such persons have complied and will comply with the offering
restrictions requirement of Regulation S; and
(v) it agrees that, at or prior to confirmation of sales of the
Securities, it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Notes from it
during the restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered
under the U.S. Securities Act of 1933 (the "Securities Act")
and may not be offered and sold within the United States or
to, or for the account or benefit of, U.S. persons (i) as
part of their distribution at any time or (ii) otherwise
prior to 40 days after the closing of the offering, except
in either case in accordance with Regulation S (or Rule
144A, if available) under the Securities Act. Terms used
above have the meaning given to them by Regulation S."
Terms used in this Section 2 and not otherwise defined in this Agreement
have the meanings given to them by Regulation S.
3. Payment for the Notes shall be made by wire transfer in immediately
available funds to the account specified by the Company to the Initial
Purchasers no later than noon on December 21, 1998,
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or at such other time on the same or such other date, not later than the fifth
Business Day thereafter, as the Initial Purchasers and the Company may agree
upon in writing. The time and date of such payment are referred to herein as the
"Closing Date." As used herein, the term "Business Day" means any day other than
a day on which banks are permitted or required to be closed in New York City.
Payment for the Notes shall be made against delivery to the nominee of The
Depository Trust Company for the respective accounts of the several Initial
Purchasers of the Notes of one or more global notes (collectively, the "Global
Note") representing the Notes, with any transfer taxes payable in connection
with the transfer to the Initial Purchasers of the Notes duly paid by the
Company. The Global Note will be made available for inspection by the Initial
Purchasers at the office of J.P. Morgan Securities Inc. at the address set forth
above not later than 1:00 P.M., New York City time, on the Business Day prior to
the Closing Date.
4. The Issuers, jointly and severally, represent and warrant to each
Initial Purchaser that:
(a) The Preliminary Memorandum did not, as of its date, and the Final
Memorandum will not, in the form used by the Initial Purchasers to confirm sales
of the Securities and as of the Closing Date, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at such dates, not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information relating to any Initial Purchaser furnished to the Company in
writing by such Initial Purchaser expressly for use therein;
(b) Neither the Company nor any of the Subsidiaries has sustained
since the date of the latest audited financial statements included in the Final
Memorandum any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Final Memorandum; and, since the
respective dates as of which information is given in the Final Memorandum, there
has not been any change in the capital stock or long-term debt of the Company or
any of the Subsidiaries or any material adverse change, or any development which
could reasonably be expected to involve a material adverse change, in or
affecting the general affairs, management, financial position, stockholders'
equity or results of operations of the Company and the Subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Final Memorandum;
(c) The Company and the Subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Final Memorandum or such as do
not materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company and the
Subsidiaries; and any real property and buildings held under lease by the
Company and the Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and the Subsidiaries;
(d) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Delaware, with power and
authority to own its properties and conduct its business as described in the
Final Memorandum. Prior to the Recapitalization, the Company has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the
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laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except where the
failure to be so qualified would not have a material adverse effect upon the
business, properties, financial condition, earnings, or prospects of the Company
or any of the Subsidiaries (a "Material Adverse Effect"); and each Subsidiary of
the Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of incorporation;
(e) Upon the closing of the Recapitalization, the Company will have
an authorized capitalization as set forth in the Final Memorandum, and all of
the outstanding shares of capital stock of the Company will have been duly and
validly authorized and issued and fully paid and non-assessable; and all of the
outstanding shares of capital stock of each Subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and non-assessable and
(except as otherwise set forth in the Final Memorandum) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims;
(f) This Agreement has been duly authorized, executed and delivered
by the Company and the Guarantors;
(g) The Notes have been duly authorized and, when issued and
delivered, and payment therefore received, as contemplated by this Agreement,
will have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company, entitled to the
benefits provided by the Indenture; the Indenture has been duly authorized and,
when executed and delivered by the Company, the Guarantors and the Trustee, the
Indenture will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and the Notes
and the Indenture will conform in all material respects to the descriptions
thereof in the Final Memorandum and will be in substantially the form previously
delivered to you;
(h) The Guarantees have been duly authorized by the Guarantors, and
when executed, authenticated, issued and delivered as contemplated by this
Agreement and the Indenture, will constitute valid and legally binding
obligations of the Guarantors entitled to the benefits provided by the
Indenture, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. The Guarantees will conform in all material respects to the
descriptions thereof in the Final Memorandum;
(i) The Registration Rights Agreement has been duly authorized by the
Company and the Guarantors, and when executed, authenticated, issued and
delivered by the Company and the Guarantors, will constitute the valid and
legally binding obligation of the Company and the Guarantors, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles; provided,
however, that no representation is made as to the enforceability of the
indemnification and contribution provisions of such Registration Rights
Agreement. Pursuant to the Registration Rights Agreement, the Company will agree
to file with the Commission, under the circumstances set forth therein, (i) a
registration statement under the Securities Act relating to another series of
debt securities of the Company with terms substantially identical to the Notes
(the "Exchange Notes") to be offered in exchange for the Notes (the "Exchange
Offer") and (ii) to the extent required by the Registration Rights Agreement, a
shelf registration statement pursuant to Rule 415 of the Securities
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Act relating to the resale by certain holders of the Notes, and in each case, to
use its best efforts to cause such registration statements to be declared
effective. The Exchange Notes have been duly authorized for issuance by the
Company, and when issued and authenticated in accordance with the terms of the
Indenture, will be the valid and legally binding obligations of the Company,
entitled to the benefits provided by the Indenture, enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(j) The guarantees of the Company's obligations under the Notes to be
issued with terms substantially identical to the Guarantees (the "Exchange
Guarantees") to be offered in exchange for the Guarantees in the Exchange Offer
have been duly authorized by the Guarantors, and when executed, authenticated,
issued and delivered as contemplated by this Agreement and the Indenture, will
constitute valid and legally binding obligations of the Guarantors entitled to
the benefits provided by the Indenture, enforceable in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principles. The Exchange Guarantees will conform to the
descriptions thereof in the Final Memorandum;
(k) The Senior Credit Facilities (as defined in the Final Memorandum)
have been duly authorized by the Company and the Guarantors, and when executed
and delivered by the Company, the Guarantors and the other parties thereto, will
constitute the valid and legally binding obligation of the Company and the
Guarantors, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles;
(l) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of the
Notes) will violate or result in a violation of Section 7 of the Exchange Act,
or any regulation promulgated thereunder, including, without limitation,
Regulations T, U, and X of the Board of Governors of the Federal Reserve System;
(m) Prior to the date hereof, neither the Company nor any of its
affiliates has taken any action which is designed to or which has constituted or
which might have been expected to cause or result in stabilization or
manipulation of the price of any security of the Company in connection with the
offering of the Notes;
(n) The issue and sale of the Notes and the compliance by the Company
with all of the provisions of the Notes, the Indenture, the Registration Rights
Agreement and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument material to the Company and the Subsidiaries, taken as a whole, to
which the Company or any of the Subsidiaries is a party or by which the Company
or any of the Subsidiaries is bound or to which any of the property or assets of
the Company or any of the Subsidiaries is subject, nor will such action result
in any violation of the provisions of the Articles of Incorporation or By-laws
of the Company or (assuming the accuracy of the representations, warranties and
agreements of the Initial Purchasers contained herein) any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries or any of their
properties (except, in the case of any such indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument, for such breaches, conflicts,
violations or defaults as would not have a Material Adverse Effect); and no
consent, approval,
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authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Notes or
the consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except for the filing of a registration statement by
the Company with the Commission pursuant to the Securities Act and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Initial Purchasers;
(o) Neither the Company nor any of the Subsidiaries is in violation of
its Charter or By-laws or in default in the performance or observance of any
material obligation, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be bound
(except, in the case of any such indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument, for such violations or
defaults as would not have a Material Adverse Effect);
(p) The statements set forth in the Final Memorandum under the caption
"Description of Notes," insofar as they purport to constitute a summary of the
terms of the Notes, and under the caption "Certain Federal Tax Considerations,"
insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair in all material respects;
(q) Other than as set forth in the Final Memorandum, there are no
legal or governmental proceedings pending to which the Company or any of the
Subsidiaries is a party or of which any property of the Company or any of the
Subsidiaries is the subject which could reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the current or
future financial position, stockholders' equity or results of operations of the
Company and the Subsidiaries, taken as a whole; and, to the Company's knowledge,
no such proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(r) When the Notes and Guarantees are issued and delivered pursuant to
this Agreement, the Notes and Guarantees will not be of the same class (within
the meaning of Rule 144A under the Securities Act) as securities or guarantees
which are listed on a national securities exchange registered under Section 6 of
the Exchange Act or quoted in a U.S. automated inter-dealer quotation system;
(s) No Issuer is, or after giving effect to the offering and sale of
the Notes will be, an "investment company," or an entity "controlled" by an
"investment company," as such terms are defined in the United States Investment
Company Act of 1940, as amended (the "Investment Company Act");
(t) Neither the Company, any of the Subsidiaries, nor any person
acting on its or their behalf has offered or sold the Securities by means of any
general solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act or, with respect to Securities sold outside the United
States to non-U.S. persons (as defined in Rule 902 under the Securities Act), by
means of any directed selling efforts within the meaning of Rule 902 under the
Securities Act and the Company, any affiliate of the Company and any person
acting on its or their behalf has complied with and will implement the "offering
restriction" within the meaning of such Rule 902;
(u) Within the preceding six months, neither the Company nor any other
person acting on behalf of the Company has offered or sold to any person any
Securities, or any securities of the
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same or a similar class as the Securities, other than Securities offered or sold
to the Initial Purchasers hereunder. The Company will take reasonable
precautions designed to insure that any offer or sale, direct or indirect, in
the United States or to any U.S. person (as defined in Rule 902 under the
Securities Act) of any Securities or any substantially similar security issued
by the Company, within six months subsequent to the date on which the
distribution of the Securities has been completed (as notified to the Company by
J.P. Morgan Securities Inc.), is made under restrictions and other circumstances
reasonably designed not to affect the status of the offer and sale of the
Securities in the United States and to U.S. persons contemplated by this
Agreement as transactions exempt from the registration provisions of the
Securities Act;
(v) Neither the Company nor any of its respective affiliates does
business with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes;
(w) Arthur Andersen LLP, who have certified certain financial
statements of the Company and the Subsidiaries, are independent public
accountants as required by the Securities Act and the rules and regulations of
the Commission thereunder;
(x) The Company and each of the Subsidiaries has complied in all
respects with all laws, regulations and orders applicable to it or its
businesses, except for such violations as would not have a Material Adverse
Effect; and
(y) The Company and each of the Subsidiaries owns or possesses or has
the right to use the 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 (collectively, the "Intellectual Property")
presently employed by it in connection with, and material to, collectively or in
the aggregate, the operation of the businesses now operated by the Company and
the Subsidiaries as a whole, and, except as disclosed in the Final Memorandum,
none of the Company or the Subsidiaries has received any notice of infringement
of or conflict with asserted rights of others with respect to the foregoing
which, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect.
5. The Issuers, jointly and severally, covenant and agree with each of
the several Initial Purchasers as follows:
(a) To prepare the Final Memorandum in a form approved by you; to make
no amendment or any supplement to the Final Memorandum without your approval
promptly after reasonable notice thereof, which approval shall not be
unreasonably withheld; and to furnish you with copies thereof;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Securities, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
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(c) To furnish the Initial Purchasers with copies of the Final
Memorandum and each amendment or supplement thereto signed by an authorized
officer of the Company with the independent accountants' report(s) in the Final
Memorandum, and any amendment or supplement containing amendments to the
financial statements covered by such report(s), signed by the accountants, and
additional copies thereof in such quantities as you may from time to time
reasonably request, and if, at any time prior to the expiration of nine months
after the date of the Final Memorandum, any event shall have occurred as a
result of which the Final Memorandum as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Final Memorandum is
delivered, not misleading, or, if for any other reason it shall be necessary or
desirable during such same period to amend or supplement the Final Memorandum,
to notify you and upon your request to prepare and furnish without charge to
each Initial Purchaser and to any dealer in securities as many copies as you may
from time to time reasonably request of an amended Final Memorandum or a
supplement to the Final Memorandum which will correct such statement or omission
or effect such compliance;
(d) During the period beginning from the date hereof and continuing
until the date six months after the Closing Date, not to offer, sell contract to
sell or otherwise dispose of, except as provided hereunder, any securities of
the Company that are substantially similar to the Securities;
(e) Not to be or become, at any time prior to the expiration of three
years after the Closing Date, an open-end investment company, unit investment
trust, closed-end investment company or face-amount certificate company that is
or is required to be registered under Section 8 of the Investment Company Act;
(f) While the Securities remain outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, to,
during any period in which the Company is not subject to Section 13 or 15(d)
under the Exchange Act, make available to the Initial Purchasers and any holder
of Securities in connection with any sale thereof and any prospective purchaser
of Securities, in each case upon request, the information specified in, and
meeting the requirements of, Rule 144A(d)(4) ("Rule 144A(d)(4) Information")
under the Securities Act (or any successor thereto);
(g) If requested by you, to use its best efforts to cause such
Securities to be eligible for the PORTAL trading system of the National
Association of Securities Dealers, Inc.;
(h) Until such time as the Company has Consummated (as defined in the
Registration Rights Agreement) an Exchange Offer (as defined in the Registration
Rights Agreement), to furnish to the holders of the Securities as soon as
practicable after the end of each fiscal year an annual report (including a
balance sheet and consolidated statements of income, stockholders' equity and
cash flows of the Company and the Subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter ending
after the date of the Final Memorandum), consolidated summary financial
information of the Company and the Subsidiaries for such quarter in reasonable
detail; provided, however, that in the event that (i) the consolidated
statements of income, stockholders' equity and cash flows of TISM are identical
to those of the Company and the Subsidiaries and (ii) the Company would
otherwise be permitted to file such financial statements with the Commission
pursuant to and in full satisfaction of the requirements of the Exchange Act (if
the Company were subject to Section 13 or 15(d) of such Exchange Act), the
Issuers shall be permitted to furnish to you such financial statements of TISM
in satisfaction of its obligations hereunder;
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(i) Until such time as the Company has Consummated an Exchange Offer,
during a period of five years from the date of the Final Memorandum, to furnish
to you copies of all reports or other communications (financial or other)
furnished to shareholders of the Company in their capacity as such, and to
deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any securities
exchange on which the Securities or any class of securities of the Company is
listed; and (ii) such additional information concerning the business and
financial condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to the extent
the accounts of the Company and the Subsidiaries are consolidated in reports
furnished to the stockholders generally or to the Commission);
(j) Until such time as the Company has Consummated an Exchange Offer,
during the period of two years after the Closing Date, the Company will not, and
will not permit any of its "affiliates" (as defined in Rule 144 under the
Securities Act) to, resell any of the Securities which constitute "restricted
securities" under Rule 144 that have been reacquired by any of them;
(k) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement substantially in the manner specified in
the Final Memorandum under the caption "Use of Proceeds;"
(l) Not to take any action prohibited by Regulation M under the
Exchange Act, in connection with the distribution of the Securities contemplated
hereby;
(m) To pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the issue of the Securities and all other expenses in connection
with the preparation, printing and filing of the Preliminary Memorandum and the
Final Memorandum and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Initial Purchasers and dealers; (ii) the
cost of copying or producing any Agreement among Initial Purchasers, this
Agreement, the Indenture, the Blue Sky Memoranda, closing documents (including
any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Initial Purchasers in
connection with such qualification and in connection with the Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) the cost of preparing the Securities; (vi) the fees
and expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities and (vii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 7 and 10 hereof, the Initial Purchasers
will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make; and
(n) As soon as practicable, to take all necessary action to cause the
Company to be duly qualified as a foreign corporation for the transaction of
business and in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require such
qualification, or be subject to no material liability or disability by reason of
the failure to be so qualified in any such jurisdiction.
10
6. The several obligations of the Initial Purchasers hereunder to
purchase the Securities on the Closing Date are subject to the performance by
each of the Issuers of its obligations hereunder and to the following additional
conditions:
(a) The representations and warranties of the Company and each of the
Guarantors contained herein are true and correct on and as of the Closing Date
as if made on and as of the Closing Date and the Company and each of the
Guarantors shall have complied with all agreements and all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date;
(b) Latham & Watkins, counsel for the Initial Purchasers, shall have
furnished to you such opinion or opinions, dated the Closing Date, with respect
to such matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) (i) Ropes & Gray, counsel for the Company, shall have furnished
to you their written opinion, dated the Closing Date, substantially in the form
of Exhibit B hereto. For purposes of their opinion, Ropes & Gray may assume that
New York law is identical to Massachusetts law.
(ii) You shall have received the written opinions of counsel to
the Issuers reasonably satisfactory to you, dated the Closing Date, in the form
of Exhibit C hereto with respect to the Issuers organized under the laws of
Michigan;
(d) On the date of the Final Memorandum prior to the execution of this
Agreement and also at the Closing Date, Arthur Anderson LLP shall have furnished
to you a letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you;
(e) (i) Neither the Company nor any of the Subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Final Memorandum any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Final Memorandum, and (ii) since the
respective dates as of which information is given in the Final Memorandum there
shall not have been any change in the capital stock or long-term debt of the
Company or any of the Subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and the
Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Final Memorandum, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of the Initial Purchasers so material and
adverse as to make it impracticable or inadvisable to proceed with the offering
or the delivery of the Securities on the terms and in the manner contemplated in
this Agreement and in the Final Memorandum;
(f) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no
such organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities;
(g) The Securities shall have been designated for trading on PORTAL;
11
(h) The Company and the Guarantors shall have furnished or caused to
be furnished to you at the Closing Date certificates of officers of the Company
and the Guarantors satisfactory to you as to the accuracy of the representations
and warranties of the Company and the Guarantors herein at and as of such
Closing Date, as to the performance by the Company and the Guarantors of all of
their obligations hereunder to be performed at or prior to such Closing Date, as
to the matters set forth in subsections (a) and (f) of this Section and as to
such other matters as you may reasonably request;
(i) No later than the Closing Date, the equity investment (as
described in the Final Memorandum) shall have been made, in accordance in all
material respects with the description of such equity investment in the Final
Memorandum;
(j) No later than the Closing Date, the Issuers shall have entered
into the Senior Credit Facilities (the form and substance of which shall be
reasonably acceptable to the Initial Purchasers) and the Initial Purchasers
shall have received counterparts, conformed as executed, thereof and of all
other material documents and agreements entered into in connection therewith.
There shall exist at the Closing Date 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 Senior Credit Facilities. On the Closing Date,
the Senior Credit Facilities shall be in full force and effect and shall not
have been modified;
(k) The Transactions (as described in the Final Memorandum) shall have
been consummated and evidence as to such, satisfactory to the Initial Purchasers
and their counsel, shall have been delivered to you;
(l) The Company and the Guarantors shall have entered into the
Registration Rights Agreement and you shall have received executed counterparts
thereof; and
(m) You shall have been permitted to rely upon an opinion, addressed
to the lenders under the Senior Credit Facilities, as to the solvency of the
Company after giving effect to the Transactions.
7. The Issuers, jointly and severally, agree to indemnify and hold
harmless each Initial Purchaser, each affiliate of any Initial Purchaser which
assists such Initial Purchaser in the distribution of the Securities, and each
person, if any, who controls any Initial Purchaser within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including without
limitation the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Offering
Memorandum (and any amendment or supplement thereto if the Company shall have
furnished any amendments or supplements thereto) or 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, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Initial Purchaser furnished to the Company in writing by such
Initial Purchaser through J.P. Morgan Securities Inc. expressly for use therein;
provided that the indemnification contained in this paragraph (a) shall not
inure to the benefit of the Initial Purchasers (or to the benefit of any person
controlling the Initial Purchasers) on account of any such loss, claim, damage,
liability or expense arising from the sale of the Securities by the Initial
Purchasers to any person if a copy of the Final Memorandum (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) shall not have been delivered or sent to such person
12
and each untrue statement of a material fact contained in, and each omission or
alleged omission of a material fact from, such Offering Memorandum was corrected
in the Final Memorandum (as so amended or supplemented) and it shall have been
determined that any Initial Purchaser and each person, if any, who controls such
Initial Purchasers would not have incurred such losses, claims, damages,
liabilities and expenses had the Final Memorandum been delivered or sent.
Each Initial Purchaser agrees, severally and not jointly, to indemnify and
hold harmless the Issuers, their directors, their officers and each person who
controls the Company within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Issuers to each Initial Purchaser, but only with reference to
information relating to such Initial Purchaser furnished to the Issuers in
writing by such Initial Purchaser through J.P. Morgan Securities Inc. expressly
for use in the Offering Memorandum or any amendment or supplement thereto.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such reasonable fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
the Initial Purchasers, each affiliate of any Initial Purchaser which assists
such Initial Purchaser in the distribution of the Securities and such control
persons of the Initial Purchasers shall be designated in writing by J.P. Morgan
Securities Inc. and any such separate firm for the Issuers, their directors,
their officers and such control persons of the Issuers shall be designated in
writing by the Issuers. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. No Indemnifying
Person shall, without the prior written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person from all liability
on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as
13
is appropriate to reflect the relative benefits received by the Issuers on the
one hand and the Initial Purchasers on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Issuers on the one hand and the Initial Purchasers on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Issuers on the one hand
and the Initial Purchasers on the other shall be deemed to be in the same
respective proportions as the net proceeds from the offering (before deducting
expenses) received by the Issuers and the total discounts and commissions
received by the Initial Purchasers, in each case as set forth in the table on
the cover of the Offering Memorandum, bear to the aggregate offering price of
the Securities. The relative fault of the Issuers on the one hand and the
Initial Purchasers on the other 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 by the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Issuers and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities 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 Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an Initial
Purchaser be required to contribute any amount in excess of the amount by which
the total price at which the Securities purchased by it were offered exceeds the
amount of any damages that such 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute pursuant to this Section 7 are several in
proportion to the respective principal amount of the Securities set forth
opposite their names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 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.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Issuers and the Initial Purchasers set
forth in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Initial Purchaser or any person controlling any Initial
Purchaser or by or on behalf of the Issuers, its officers or directors or any
other person controlling the Issuers and (iii) acceptance of and payment for any
of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Initial Purchasers, by notice given
to the Issuers, if after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities
14
of or guaranteed by the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Initial Purchasers, is material and adverse and
which, in the judgment of the Initial Purchasers, makes it impracticable to
market the Securities on the terms and in the manner contemplated in the
Offering Memorandum.
9. This Agreement shall become effective upon the execution and delivery
hereof by the parties hereto.
If, on the Closing Date any one of the Initial Purchasers shall fail or
refuse to purchase Notes which it or they have agreed to purchase hereunder on
such date, and the aggregate principal amount of Notes which such defaulting
Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Notes to be
purchased on such date, the other Initial Purchasers shall be obligated
severally in the proportions that the principal amount of Notes set forth
opposite their respective names in Schedule I bears to the aggregate principal
amount of Notes set forth opposite the names of all such non-defaulting Initial
Purchasers, or in such other proportions as the Initial Purchasers may specify,
to purchase the Securities which such defaulting Initial Purchaser or Initial
Purchasers agreed but failed or refused to purchase on such date; provided that
in no event shall the principal amount of Notes that any Initial Purchaser has
agreed to purchase pursuant to Section 1 be increased pursuant to this Section 9
by an amount in excess of one-tenth of such principal amount of Notes without
the written consent of such Initial Purchaser. If, on the Closing Date any
Initial Purchaser or Initial Purchasers shall fail or refuse to purchase Notes
which it or they have agreed to purchase hereunder on such date, and the
aggregate principal amount of Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Notes to be
purchased on such date, and arrangements satisfactory to the Initial Purchasers
and the Company for the purchase of such Notes are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Initial Purchaser or the Company. In any such case either
the Initial Purchasers or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Offering Memorandum or in any other documents
or arrangements may be effected. Any action taken under this paragraph shall
not relieve any defaulting Initial Purchaser from liability in respect of any
default of such Initial Purchaser under this Agreement.
10. If this Agreement shall be terminated by the Initial Purchasers, or
any of them, because of any failure or refusal on the part of any of the Issuers
to comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Issuers shall be unable to perform its obligations
under this Agreement or any condition of the Initial Purchasers' obligations
cannot be fulfilled, the Issuers agree to reimburse the Initial Purchasers or
such Initial Purchasers as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
expenses of their counsel) reasonably incurred by such Initial Purchasers in
connection with this Agreement or the offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding upon the
Issuers, the Initial Purchasers, each affiliate of any Initial Purchaser which
assists such Initial Purchaser in the distribution of the Securities, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this
15
Agreement or any provision herein contained. No purchaser of Notes from any
Initial Purchaser shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Initial Purchasers hereunder may be taken by J.P.
Morgan Securities Inc. alone on behalf of the Initial Purchasers, and any such
action taken by J.P. Morgan Securities Inc. alone shall be binding upon the
Initial Purchasers. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Initial Purchasers shall
be given to the Initial Purchasers c/o J.P. Morgan Securities Inc., 60 Wall
Street, New York, New York 10260 (telefax: (212) 648-5560); Attention: Syndicate
Department. Notices to the Issuers shall be given to it at 30 Frank Lloyd
Wright Drive, Ann Arbor, Michigan 48106 (telefax (734) 913-0377); Attention:
Chief Financial Officer.
13. This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
16
If the foregoing is in accordance with your understanding, please sign and
return four counterparts hereof. It is understood that your acceptance of this
letter on behalf of each of the Initial Purchasers is pursuant to authority set
forth in a form of Agreement among Initial Purchasers, the form of which shall
be submitted to the Company for examination upon request.
Very truly yours,
DOMINO'S, INC.
By: /s/ Harry J. Silverman
-----------------------------
Name: Harry J. Silverman
Title: Vice President
DOMINO'S PIZZA, INC.
By: /s/ Harry J. Silverman
-----------------------------
Name: Harry J. Silverman
Title: Vice President
METRO DETROIT PIZZA, INC.
By: /s/ Harry J. Silverman
-----------------------------
Name: Harry J. Silverman
Title: Vice President
BLUEFENCE, INC.
By: /s/ Harry J. Silverman
-----------------------------
Name: Harry J. Silverman
Title: President
DOMINO'S PIZZA INTERNATIONAL
PAYROLL SERVICES, INC.
By: /s/ Harry J. Silverman
-----------------------------
Name: Harry J. Silverman
Title: Vice President
17
DOMINO'S PIZZA INTERNATIONAL, INC.
By: /s/ Harry J. Silverman
-----------------------------
Name: Harry J. Silverman
Title: Vice President
DOMINO'S PIZZA-GOVERNMENT SERVICES DIVISION, INC.
By: /s/ Harry J. Silverman
-----------------------------
Name: Harry J. Silverman
Title: Vice President
18
Accepted: December 21, 1998
J.P. MORGAN SECURITIES INC.
GOLDMAN, SACHS & CO.
By: J.P. MORGAN SECURITIES INC.
By: /s/ Timothy R. Murphy
------------------------------
Name: Timothy R. Murphy
Title: Vice President
19
SCHEDULE I
Principal Amount
Initial Purchaser of Securities
- -----------------
To Be Purchased
---------------
J.P. Morgan Securities Inc....................... $220,000,000
Goldman, Sachs & Co.............................. $ 55,000,000
------------
Total:............. $275,000,000
20
EXHIBIT A
Form of Registration Rights Agreement
EXHIBIT B
Form of Ropes & Gray Opinion
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of Delaware, with corporate
power and authority to own its properties and conduct its business as described
in the Final Memorandum;
(ii) TISM has the authorized capital stock set forth in the Final
Memorandum; and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and non-
assessable, and (except as otherwise set forth in the Final Memorandum) all of
the outstanding shares of capital stock of the Company are owned of record
directly by TISM;
(iii) Each Guarantor incorporated under the laws of the State of
Delaware (the "Delaware Guarantors") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware; and all of the issued shares of capital stock of each such Delaware
Guarantor have been duly and validly authorized and issued, are fully paid and
non-assessable, and (except as otherwise set forth in the Final Memorandum) are
owned of record directly or indirectly by the Company;
(iv) The Amended and Restated Purchase Agreement has been duly
authorized, executed and delivered by the Company and the Delaware Guarantors;
(v) The Notes have been duly authorized, executed, issued and
delivered by the Company and assuming the due authentication and delivery of the
Notes by the Trustee in accordance with the terms of the Indenture and the
payment therefor in accordance with the terms of the Amended and Restated
Purchase Agreement, will be duly and validly issued and outstanding and will
(subject to the qualifications in the final paragraph of such opinion set forth
below) constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms;
(vi) The Exchange Notes have been duly authorized by the Company and
assuming the due execution, delivery and issuance thereof by the Company in
accordance with the terms of the Registration Rights Agreement and the
Indenture, and assuming the due authentication and delivery of the Exchange
Notes thereof by the Trustee, will (subject to the qualifications in the final
paragraph of such opinion set forth below) constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the Indenture,
enforceable in accordance with their terms;
(vii) The Indenture has been duly authorized, executed and delivered
by the Company and the Delaware Guarantors and assuming the due authorization,
execution and delivery thereof by the Guarantors (other than the Delaware
Guarantors), will (subject to the qualifications in the final paragraph of such
opinion set forth below) constitute a valid and legally binding instrument of
the Issuers, enforceable in accordance with its terms;
(viii) The Guarantees have been duly authorized, executed and
delivered by the Delaware Guarantors and assuming the due authorization,
execution and delivery thereof by the Guarantors (other than the Delaware
Guarantors), the corporate power of the Guarantors (other than the Delaware
Guarantors) therefor and for the performance thereof and the due authorization,
execution and delivery of the Indenture by the Guarantors (other than the
Delaware Guarantors), will (subject to the qualifications in the final paragraph
of such opinion set forth below) constitute valid and legally binding
obligations of the Guarantors entitled to the benefits provided by the
Indenture, enforceable in accordance with their terms;
(ix) The Exchange Guarantees have been duly authorized by the
Delaware Guarantors and assuming the due authorization by all necessary
corporate action of the Guarantors (other than the Delaware Guarantors), the
corporate power of the Guarantors (other than the Delaware Guarantors) therefor
and for the performance thereof and assuming the due execution, delivery and
issuance thereof by the Guarantors and assuming no change in applicable law, in
accordance with the terms of the Registration Rights Agreement and the
Indenture, will (subject to the qualifications in the final paragraph of such
opinion set forth below) constitute valid and legally binding obligations of the
Guarantors entitled to the benefits provided by the Indenture, enforceable in
accordance with their terms;
(x) The issue and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes, the Indenture and the Amended
and Restated Purchase Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any of the agreements listed on Schedule I hereto, which have been identified to
us by the Chief Financial Officer of the Company as being all of the agreements
to which the Company or any of the Subsidiaries is party, or to which any of
their respective businesses or assets is subject, that are material to the
financial condition or results of operations of the Company and the
Subsidiaries, taken as a whole (the "Material Agreements"), nor will such
actions result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute, rule or regulation under
federal or Massachusetts law applicable to the Company or any of the
Subsidiaries or any judgment, order or decree to which the Company or any of the
Subsidiaries is a party and is known to such counsel, of any federal or
Massachusetts court or governmental agency or body having jurisdiction over the
Company or any of the Subsidiaries or any of their properties; except, in the
case of any Material Agreement, for such breaches, violations or defaults as
would not, individually or in the aggregate, have a material adverse effect on
the consolidated financial condition and results of operations of the Company;
such counsel need not express any opinion in such paragraph as to compliance
with federal or state securities or blue sky laws or antitrust laws, including,
but not limited to, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended;
(xi) To the knowledge of such counsel, no consent, approval,
authorization, order, registration or qualification of or with any federal or
Massachusetts court or governmental agency or body is required for the issue and
sale of the Securities or the consummation by the Issuers of the transactions
contemplated by this Agreement or the Indenture, except that such counsel need
not express any opinion in such paragraph as to compliance with federal or state
securities or blue sky laws or antitrust laws, including, but not limited to,
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended;
(xii) The statements set forth in the Final Memorandum under the
caption "Description of Notes," insofar as they purport to constitute a summary
of the terms of the Notes and under the caption "Certain Federal Tax
Considerations," insofar as they purport to describe the provisions of the laws
referred to therein, fairly summarize such terms and provisions in all material
respects;
(xiii) Assuming (a) the accuracy of the representations and warranties
of the Company, the Subsidiaries and the Initial Purchasers set forth in the
Amended and Restated Purchase Agreement and (b) the due performance of and
compliance with the covenants and agreements set forth
2
in the Amended and Restated Purchase Agreement by the Company, the Subsidiaries
and the Initial Purchasers, the offer and sale of the Securities to the Initial
Purchasers, and the initial resales of the Securities by the Initial Purchasers,
in the manner contemplated by the Amended and Restated Purchase Agreement and
the Final Memorandum, do not require registration under the Securities Act or
qualification of the Indenture under the Trust Indenture Act (it being
understood that such counsel need not express any opinion in such paragraph as
to any reoffer or resale of any Securities initially sold by the Initial
Purchasers).
(xiv) None of the Company or the Subsidiaries is an "investment
company" or an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act; and
(xv) Neither the issuance or sale of the Securities nor the
application by the Company of the net proceeds thereof as set forth in the Final
Memorandum will violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
We have not independently verified the accuracy, completeness or fairness
of the statements made or the information contained in the Final Memorandum,
and, except with respect to the descriptions referred to in paragraph (xii)
above, we are not passing upon and do not assume any responsibility therefor. In
the course of the preparation by the Company of the Final Memorandum, we have
participated in discussions with your representatives and those of the Company
and its independent accountants, in which the business and affairs of the
Company and the contents of the Final Memorandum were discussed. Based on such
information and participation, nothing has come to our attention that has caused
us to believe that as of its date and the date hereof, the Final Memorandum
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading. We express no opinion, however, as to financial
statements or any other financial or statistical information set forth or
referred to in the Final Memorandum.
The opinion of Ropes & Gray may include the following language:
Our opinion stated herein that each of the Indenture, the Notes, the
Guarantors, the Exchange Notes and the Exchange Guarantees (the "Operative
Documents") constitutes a valid and binding obligation, enforceable against the
Company or the Guarantors, where applicable, in accordance with its terms, is
subject to (a) bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting the rights and remedies of creditors and
secured parties and (b) general principles of equity, regardless of whether
enforcement is sought in proceedings in equity or at law. We express no opinion
as to the enforceability of powers of attorney, submission to jurisdiction,
waiver of defenses, waiver of right of subrogation, waiver of service of process
and venue and waiver of the right to trial by jury and jury trial waivers
contained in the Operative Documents. We express no opinion with respect to the
applicability of Section 548 of the Bankruptcy Code or any other fraudulent
conveyance provision. In addition, certain provisions of the Operative Documents
may be unenforceable in whole or in part but, in our opinion, the inclusion of
such provisions does not affect the validity of the Operative Documents as a
whole, and the Operative Documents contain remedies, which, if properly invoked,
are adequate for the practical realization of the principal legal benefits
afforded thereby under Massachusetts law. The opinions expressed herein are
subject to the qualification that the enforceability of the provisions of the
Operative Documents providing for indemnification may be affected by public
policy considerations, federal or state securities laws or court decisions that
may limit the right of the indemnified party to obtain indemnification.
3
4
EXHIBIT C
FORM OF LOCAL COUNSEL OPINION
(i) Each Guarantor incorporated under the laws of the State of
Michigan (the "Michigan Guarantors") has been duly incorporated with corporate
power to execute, deliver and perform its obligations under the Amended and
Restated Purchase Agreement, the Indenture, its Guarantee and its Exchange
Guarantee and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation; and all of the issued shares of
capital stock of each such Guarantor have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except as otherwise set forth in
the Final Memorandum) are owned of record directly or indirectly by the Company;
(ii) To such counsel's knowledge and other than the litigation
referred to in the Final Memorandum, after having made inquiry of the officers
of the Company, but without having investigated any governmental court dockets
or making any other independent investigation, there are no legal or
governmental proceedings pending to which the Company or any of the Subsidiaries
is a party or of which any property of the Company or any of the Subsidiaries is
the subject which would reasonably be expected, individually or in the
aggregate, to have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of operations
of the Company and the Subsidiaries; and, to such counsel's knowledge, no such
proceedings are threatened by governmental authorities or threatened by others;
(iii) The Amended and Restated Purchase Agreement has been duly
authorized, executed and delivered by the Michigan Guarantors;
(iv) The Indenture has been duly authorized, executed and delivered
by the Michigan Guarantors;
(vii) The Guarantees have been duly authorized, executed, issued and
delivered by the Michigan Guarantors; and
(viii) The Exchange Guarantees have been duly authorized by the
Michigan Guarantors.