EXHIBIT 4.4
$150,000,000
ETHYL CORPORATION
8.875% SENIOR NOTES DUE 2010
PURCHASE AGREEMENT
April 15, 2003
CREDIT SUISSE FIRST BOSTON LLC
As Representative of the Several Purchasers
c/o Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Ethyl Corporation, a Virginia corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"Purchasers"), for whom Credit Suisse First Boston LLC ("CSFB") is acting as
representative (the "Representative"), U.S. $150,000,000 aggregate principal
amount of the Company's 8.875% Senior Notes due 2010 (the "Offered Securities"),
to be issued under an indenture to be dated as of the Closing Date (as defined
below) (the "Indenture"), among the Company, each of the domestic subsidiary
guarantors named in Schedule D hereto (the "Domestic Guarantors"), each of the
non-Swiss foreign subsidiary guarantors named in Schedule D hereto (the
"Non-Swiss Foreign Guarantors"), each of the Swiss subsidiary guarantors named
in Schedule D hereto (the "Swiss Guarantors" and, together with the Domestic
Guarantors and Non-Swiss Foreign Guarantors, the "Guarantors") and Wells Fargo
Bank Minnesota, N.A., as Trustee. The Offered Securities will be guaranteed by
each of the Guarantors, who will enter into a notation of guarantee (each, a
"Notation of Guarantee" and together, the "Subsidiary Guarantees") pursuant to
the terms of the Indenture. As a result of the Subsidiary Guarantees, the
Offered Securities will be unconditionally guaranteed on a senior unsecured
basis as to payment of principal, premium, if any, liquidated damages, if any,
and interest by each of the Guarantors, unless otherwise specified herein. The
United States Securities Act of 1933 is herein referred to as the "Securities
Act."
Holders (including the Purchasers and their subsequent transferees) of
the Offered Securities will have the registration rights set forth in the
registration rights agreement (the "Registration Rights Agreement"), to be dated
the Closing Date (as defined below), in substantially the form of Exhibit 1
hereto, for so long as such Offered Securities 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 Securities Act (the
"Exchange Offer Registration Statement") relating to the Company's 8.875% Senior
Notes due 2010 (the "Exchange Securities"), in a like aggregate principal amount
as the Company issued under the Indenture and guarantees thereof by the
Guarantors (the "Exchange Security Guarantees"), identical in all material
respects to the Offered Securities and the Subsidiary Guarantees and registered
under the Securities Act to be offered in exchange for the Offered Securities
(such offer to exchange being referred to as the "Exchange Offer") and the
Subsidiary Guarantees thereof and (ii) if applicable, a shelf registration
statement pursuant to Rule 415 under the Securities 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
Offered Securities and to use its commercially reasonable 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. The Offered Securities, the Exchange Securities, the Subsidiary
Guarantees and the Exchange Security Guarantees are referred to collectively
herein as the "Securities."
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company, the Domestic
Guarantors and the Non-Swiss Foreign Guarantors. The Company, each of the
Domestic Guarantors and each of the Non-Swiss Foreign Guarantors, jointly and
severally, represent and warrant to, and agree with, the several Purchasers
that:
(a) A preliminary offering circular, dated April 2, 2003,
(the "Preliminary Offering Circular") has been prepared by the Company.
A final offering circular relating to the Offered Securities (the
"Final Offering Circular") will be prepared by the Company no later
than midnight April 21, 2003. Such Final Offering Circular, as
supplemented as of April 21, 2003, together with the documents
incorporated by reference therein and the documents listed in Schedule
B hereto ---------- and any other document approved by the Company for
use in connection with the contemplated resale of the Offered
Securities are hereinafter collectively referred to as the "Offering
Document". As of its date, the Preliminary Offering Circular did not,
and as of the date of this Agreement, the Final Offering Circular does
not, include any 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, not
misleading. The preceding sentence does not apply to statements in or
omissions from the Preliminary Offering Circular or the Final Offering
Circular based upon written information furnished to the Company by any
Purchaser through CSFB specifically for use therein, it being
understood and agreed that the only such information is that described
as such in Section 7(b) hereof. Except as disclosed in the Offering
Document or the Exchange Act Reports (as defined below), on the date of
this Agreement, the Company's Annual Report on Form 10-K most recently
filed with the Commission and all subsequent reports (collectively, the
"Exchange Act Reports") which have been filed by the Company with the
Commission or sent to stockholders pursuant to the Securities Exchange
Act of 1934 (the "Exchange Act") does not include any untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances
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under which they were made, not misleading. Such Exchange Act Reports,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder.
(b) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
Commonwealth of Virginia, with the corporate power and authority to own
its properties and conduct its business as presently conducted; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify or to be in good
standing would not reasonably be expected to have a material adverse
effect on the financial condition, business, properties or results of
operations of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect").
(c) The entities listed on Schedule C hereto are the only
subsidiaries, direct or indirect, of the Company.
(i) Each subsidiary of the Company has been duly
incorporated, formed or organized and is an existing
corporation or other legal entity in good standing under the
laws of the jurisdiction of its incorporation, formation or
organization, with power and authority to own its properties
and conduct its business as presently conducted; each
subsidiary of the Company is duly qualified to do business as
a foreign corporation or other legal entity in good standing
in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification, except where the failure to so qualify or to be
in good standing would not reasonably be expected to have a
Material Adverse Effect; all of the issued and outstanding
capital stock or other ownership interest of each subsidiary
of the Company has been duly authorized and validly issued and
is fully paid and nonassessable; and the capital stock or
other ownership interest of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects, except as (x) would not
reasonably be expected to have a Material Adverse Effect, or
(y) disclosed in the Offering Document or in the Exchange Act
Reports; and
(ii) Neither the Company nor any of its
subsidiaries is (x) in violation of its respective charter or
by-laws or (y) 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, 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 with respect to
clause (y) for which any such violation or default would not
reasonably be expected to have a Material Adverse Effect.
(d) The Indenture has been duly authorized by the Company
and each Guarantor; the Offered
Securities have been duly authorized by the Company; and when the
Indenture is executed and delivered pursuant to this Agreement and the
Offered Securities are delivered and paid for pursuant to the Indenture
and this Agreement on the
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Closing Date, the Indenture will have been duly executed and delivered,
such Offered Securities will have been duly executed, authenticated,
issued and delivered and will conform to the description thereof
contained in the Offering Document and the Indenture and such Offered
Securities will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to (i)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and (ii) general equity principles.
(e) 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.
(f) Except as disclosed in the Offering Document or
Exchange Act Reports, there are no contracts, agreements or
understandings between the Company or any of its subsidiaries and any
person that would give rise to a valid claim against the Company, any
of its subsidiaries or any Purchaser for a brokerage commission,
finder's fee or other like payment in connection with the issuance and
sale of the Offered Securities.
(g) There are no contracts, agreements or understandings
between the Company or any Guarantor and any person granting such
person the right to require the Company or such Guarantor to file a
registration statement under the Securities Act with respect to any
securities of the Company or such Guarantor or to require the Company
or such Guarantor to include such securities with the Securities and
Subsidiary Guarantees registered pursuant to any Registration Rights
Agreement.
(h) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors. On the Closing
Date, this Agreement will conform in all material respects to the
description thereof contained in the Final Offering Circular.
(i) On the Closing Date, the Exchange Securities will
have been duly authorized by the Company; and when the Exchange
Securities are issued, executed and authenticated in accordance with
the terms of the Exchange Offer and the Indenture, the Exchange
Securities will be entitled to the benefits of the Indenture and will
be the valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to (i) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and (ii) general equity principles; and the Exchange Securities
will conform in all material respects to the description thereof
contained in the Final Offering Circular.
(j) The Subsidiary Guarantees to be endorsed on the
Offered Securities, and the Exchange Security Guarantees to be endorsed
on the Exchange Securities, by each Guarantor, all of which are listed
on Schedule D hereto, have been duly authorized by such Guarantor; and,
when executed, authenticated and issued in accordance with the terms of
the Indenture, will have been duly executed and delivered by each such
Guarantor and will conform to the description thereof contained in the
Offering Document. When the Offered Securities and the Exchange
Securities have been issued,
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executed and authenticated in accordance with the terms of the
Indenture and the Exchange Offer, the Notation of Guarantee and the
Exchange Security Guarantee of each Guarantor endorsed thereon will
constitute valid and legally binding obligations of such Guarantor,
enforceable in accordance with its terms, subject to (i) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and (ii) general equity principles.
(k) The Registration Rights Agreement has been duly
authorized by the Company and each of the Guarantors and, on the
Closing Date, will have been duly executed and delivered by the Company
and each of 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 Company and each of the
Guarantors, enforceable against the Company and each Guarantor in
accordance with its terms, subject to (i) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
(ii) general equity principles. 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 Document.
(l) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement
and the Registration Rights Agreement in connection with the issuance
and sale of the Offered Securities by the Company except for (i) the
order of the Commission declaring the Exchange Offer Registration
Statement or, if applicable, the Shelf Registration Statement
effective, (ii) such consents, approvals, authorizations, orders or
filings as may be required to be obtained or made under the Securities
Act, the Trust Indenture Act and as may be required by the Blue Sky
laws of the several states of the United States as provided in the
Registration Rights Agreement, (iii) such consents, approvals,
authorizations, orders or filings as have been made or obtained, or
(iv) as disclosed in the Offering Document.
(m) The execution, delivery and performance by the
Company and the Guarantors of the Indenture, the Subsidiary Guarantees,
the Exchange Security Guarantees, this Agreement, the Registration
Rights Agreement, as applicable, and the issuance and sale of the
Offered Securities and compliance with the terms and provisions thereof
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under:
(i) any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any
(ii) agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties
of the Company or any such subsidiary is subject, or
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(iii) the charter or by-laws of the Company or any
such subsidiary.
Except in the case of clauses (i) and (ii) above, for such breaches,
violations or defaults as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and the
Company has full corporate power and authority to authorize, issue and
sell the Offered Securities as contemplated by this Agreement.
(n) Except as disclosed in the Offering Document or the
Exchange Act Reports, the Company and its subsidiaries have good and
marketable title to all real properties and good and valid title to all
other properties and assets owned by them, in each case free from
liens, encumbrances and defects, except for such liens, encumbrances
and defects that (i) would not reasonably be expected to have a
Material Adverse Effect, (ii) may exist or arise pursuant to or in
connection with any of the Company's existing credit agreements, or
(iii) are disclosed in the Offering Document or Exchange Act Reports.
Except as disclosed in the Offering Document or Exchange Act Reports,
the Company and its subsidiaries hold any leased real or personal
property under valid and enforceable leases, except for such failures
to be so valid or enforceable as would not reasonably be expected to
have a Material Adverse Effect.
(o) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would reasonably be expected to have a Material Adverse
Effect.
(p) No labor strike, or work stoppage, work slowdown or
other similar labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company is imminent, that
would reasonably be expected to have a Material Adverse Effect.
(q) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"intellectual property rights") necessary to conduct the business now
operated by them, or presently employed by them, except for such
intellectual property rights the failure of which to own, possess or
acquire would not reasonably be expected to have a Material Adverse
Effect, and have not received any notice of infringement of or conflict
with asserted rights of others with respect to any intellectual
property rights that, would reasonably be expected to have a Material
Adverse Effect.
(r) Except as disclosed in the Offering Document or
Exchange Act Reports, neither the Company nor any of its subsidiaries
(i) is in violation of any applicable statute, rule, regulation,
decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "environmental laws"), (ii)
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owns or operates any real property contaminated with any substance that
is subject to any applicable environmental laws, (iii) is liable for
any off-site disposal or contamination pursuant to any applicable
environmental laws, or (iv) is subject to any claim relating to any
applicable environmental laws, except, in the case of each of (i)
through (iv), would not reasonably be expected to have a Material
Adverse Effect. Except as disclosed in the Offering Document or
Exchange Act Reports, the Company is not aware of any pending
investigation which might lead to such a claim that would reasonably be
expected to have a Material Adverse Effect.
(s) Except as disclosed in the Offering Document, there
are no pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective properties
that would reasonably be expected to have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under the Indenture or this Agreement or the
Registration Rights Agreement, and to the Company's knowledge, no such
actions, suits or proceedings are threatened or contemplated.
(t) The financial statements (including the related
notes) included in the Offering Document present fairly in all material
respects the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates shown, and their results of
operations and cash flows for the periods shown, and, except as
otherwise disclosed in the Offering Document or Exchange Act Reports,
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis, except for variations set forth in the footnotes
to the consolidated financial statements and that are described in the
Final Offering Circular; the assumptions used in preparing the "as
adjusted" financial information included in the Final Offering Circular
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein
and the related calculations give appropriate effect to those
assumptions and reflect the proper application of those adjustments to
the corresponding historical financial statement amounts.
(u) Except as disclosed in the Offering Document or
Exchange Act Reports, since the date of the latest audited financial
statements included in the Offering Document there has been no
development or event that would be reasonably expected to have a
Material Adverse Effect, and, except as disclosed in or contemplated by
the Offering Document or Exchange Act Reports, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(v) Neither the Company nor any of the Guarantors are an
open-end investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under
Section 8 of the United States Investment Company Act of 1940 (the
"Investment Company Act") ; and neither the Company nor any of the
Guarantors are or, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as
described in the Offering Document, will be an "investment company" as
defined in the Investment Company Act.
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(w) No securities of the same class (within the meaning
of Rule 144A(d)(3) under the Securities Act) as the Offered Securities
are listed on any national securities exchange registered under Section
6 of the United States Securities Exchange Act of 1934 ("Exchange Act")
or quoted in a U.S. automated inter-dealer quotation system.
(x) 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 Offered Securities to violate Regulation T,
Regulation U or Regulation X of the Board of Governors of the Federal
Reserve System.
(y) Since July of 2002, no "nationally recognized
statistical rating organization" as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act (i) has imposed (or has
informed the Company or any Guarantor 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 any
Guarantor, any securities of the Company or any Guarantor or (ii) has
indicated to the Company or any Guarantor 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 in, any rating so assigned or (b) any change in the outlook for
any rating of the Company, any Guarantor or any securities of the
Company or any Guarantor.
(z) No form of general solicitation or general
advertising (as defined in Regulation D under the Securities Act) was
used by the Company, the Guarantors or any of their respective
representatives (other than the Purchasers, as to whom the Company and
the Guarantors make no representation) in connection with the offer and
sale of the Offered Securities 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 Offered Securities have been issued and sold by the
Company within the six-month period immediately prior to the date
hereof.
(aa) Assuming the accuracy of the Purchasers'
representations set forth in Section 4 hereof and their compliance with
their agreements set forth therein; the offer and sale of the Offered
Securities in the manner contemplated by this Agreement will be exempt
from the registration requirements of the Securities Act by reason of
Section 4(2) thereof and Regulation S ("Regulation S") thereunder and
it is not necessary to qualify an indenture in respect of the Offered
Securities under the Trust Indenture Act.
(bb) None of the Company, the Guarantors nor any of their
respective affiliates or any person acting on its or their behalf
(other than the Purchasers, as to whom the Company and the Guarantors
make no representation) has offered or sold, or will offer or sell, the
Offered Securities in reliance on Regulation S other than in offshore
transactions.
(cc) The sale of the Offered Securities pursuant to
Regulation S is not part of a plan or scheme by the Company, the
Guarantors or any of their respective affiliates or
8
any person acting on its or their behalf (other than the Purchasers, as
to whom the Company and the Guarantors make no representation) to evade
the registration provisions of the Securities Act.
(dd) Neither the Company, nor any of its subsidiaries nor
any agent thereof nor any of its affiliates, nor any person acting on
its or their behalf (i) has, within the six-month period prior to the
date hereof, offered or sold in the United States or to any U.S. person
(as such terms are defined in Regulation S under the Securities Act)
the Offered Securities or any security of the same class or series as
the Offered Securities or (ii) has offered or will offer or sell the
Offered Securities (A) in the United States by means of any form of
general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act or (B) with respect to any such
securities sold in reliance on Rule 903 of Regulation S under the
Securities Act, by means of any directed selling efforts within the
meaning of Rule 902(c) of Regulation S. The Company, its affiliates and
any person acting on its or their behalf have complied and will comply
with the offering restrictions requirement of Regulation S. The Company
has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Offered Securities except for
this Agreement.
(ee) There is no "substantial U.S. market interest" as
defined in Rule 902(j) of Regulation S in the Company's debt
securities.
(ff) The proceeds to the Company from the offering of the
Offered Securities shall be used as described in the Final Offering
Circular.
(gg) The Company is subject to the reporting requirements
of Section 13 or 15(d) of the Exchange Act.
3. Purchase, Sale and Delivery of Offered Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to sell
to the Purchasers, and the Purchasers agree, severally and not jointly, to
purchase from the Company, at an aggregate purchase price of U.S. $145,875,000
(the "Purchase Price"), the respective principal amounts of Offered Securities
set forth opposite the names of the several Purchasers in Schedule A hereto. The
Company and the Guarantors shall not be obligated to deliver any of the Offered
Securities or related Subsidiary Guarantees except against payment by the
Purchasers for all of the Offered Securities to be purchased as provided herein.
The Company will deliver against payment of the Purchase Price the
Offered Securities to be purchased by each Purchaser hereunder and to be offered
and sold by each Purchaser in reliance on Rule 144A under the Securities Act
(the "144A Securities") in the form of one or more permanent global securities
in registered form without interest coupons (the "Restricted Global Securities")
deposited with the Trustee as custodian for The Depository Trust Company ("DTC")
and registered in the name of Cede & Co., as nominee for DTC. The Company will
deliver against payment of the Purchase Price the Offered Securities to be
offered and sold by the Purchasers in reliance on Regulation S (the "Regulation
S Securities") in the form of one or more permanent global Offered Securities in
registered form without interest coupons (the
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"Regulation S Global Securities") which will be deposited with the Trustee as
custodian for DTC for the respective accounts of the DTC participants for
Euroclear Bank S.A./N.V., as operator of the Euroclear System ("Euroclear"), and
Clearstream Banking societe anonyme ("Clearstream, Luxembourg") and registered
in the name of Cede & Co., as nominee for DTC. The Regulation S Global
Securities and the Restricted Global Securities shall be assigned separate CUSIP
numbers. The Restricted Global Securities shall include the legend regarding
restrictions on transfer set forth under "Transfer Restrictions" in the Offering
Document. Until the termination of the distribution compliance period (as
defined in Regulation S) with respect to the offering of the Offered Securities,
interests in the Regulation S Global Securities may only be held by the DTC
participants for Euroclear and Clearstream, Luxembourg. Interests in any
permanent global Securities will be held only in book-entry form through
Euroclear, Clearstream, Luxembourg or DTC, as the case may be, except in the
limited circumstances described in the Offering Document.
Payment for the Regulation S Securities and the 144A Securities shall
be made by the Purchasers in Federal (same day) funds by wire transfer of the
Purchase Price to a bank account designated by the Company and reasonably
acceptable to CSFB, drawn to the order of Ethyl Corporation at the office of
Latham & Watkins LLP, 885 Third Avenue, New York, NY 10022 at or about 10:00
A.M., (New York time), on April 29, 2003, or at such other time not later than
one (1) full business day thereafter as CSFB and the Company determine, such
time being herein referred to as the "Closing Date," against delivery to the
Trustee as custodian for DTC of (i) the Regulation S Global Securities
representing all of the Regulation S Securities for the respective accounts of
the DTC participants for Euroclear and Clearstream, Luxembourg and (ii) the
Restricted Global Securities representing all of the 144A Securities. The
Regulation S Global Securities and the Restricted Global Securities will be made
available for checking at the above office of Latham & Watkins LLP at least 24
hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the
Company that it is an "accredited investor" within the meaning of Regulation D
under the Securities Act.
(b) Each Purchaser acknowledges that the Offered Securities have
not been 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 or pursuant to an exemption from the
registration requirements of the Securities Act. Each Purchaser severally
represents and agrees that it has offered and sold the Offered Securities and
will offer and sell the Offered Securities (i) as part of its distribution at
any time and (ii) otherwise until 40 days after the later of the commencement of
the offering and the Closing Date, only in accordance with Rule 903 or Rule 144A
under the Securities Act ("Rule 144A"). Accordingly, neither such Purchaser nor
its affiliates, nor any persons acting on its or their behalf, have engaged or
will engage in any directed selling efforts (within the meaning of Regulation S)
with respect to the Offered Securities, and such Purchaser, its affiliates and
all persons acting on its or their behalf have complied and will comply with the
offering restrictions requirement of Regulation S. Each Purchaser severally
agrees that, at or prior to confirmation of sale of the Offered Securities,
other than a sale pursuant to Rule 144A, such Purchaser will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases the Offered
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Securities 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 or
sold within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the date of the commencement
of the offering and the closing date, except in either case in
accordance with Regulation S (or Rule 144A if available) under the
Securities Act. Terms used above have the meanings given to them by
Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Offered Securities except for any such
arrangements with the other Purchasers or affiliates of the other Purchasers or
with the prior written consent of the Company and, in either case, which
arrangements are consistent with the terms of this Agreement.
(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United States by
means of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act, including, but not limited to
(i) any advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Each Purchaser severally agrees, with
respect to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or otherwise
prior to settlement of such resale a notice to the effect that the resale of
such Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees that
(i) it has not offered or sold and prior to the expiration of a period of six
months from the Closing Date will not offer or sell any Offered Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has only communicated or caused to be
communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the meaning of
section 21 of the Financial Services and Markets Act 2000 (the "FSMA")) received
by it in connection with the issue or sale of any Offered Securities in
circumstances in which section 21(1) of the FSMA does not apply to the Company
or the Guarantors; and (iii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation to the
Offered Securities in, from or otherwise involving the United Kingdom.
11
(f) Each Purchaser severally represents and agrees that, upon
receipt from the Company of a notice pursuant to Section 5(a), such Purchaser
will, as soon as reasonably practicable, forthwith discontinue any offer or sale
of the Offered Securities until such Purchaser has received an amendment or
supplement pursuant to Section 5(a) or until the Representative is advised by
the Company in writing that the use of the then-existing Final Offering Circular
may be resumed.
5. Certain Agreements of the Company, each of the Domestic
Guarantors and each of the Non-Swiss Foreign Guarantors. The Company, each of
the Domestic Guarantors and each of the Non-Swiss Foreign Guarantors, jointly
and severally, agree with the several Purchasers that:
(a) The Company will advise CSFB promptly of any proposal to amend
or supplement the Offering Document and will not effect such amendment or
supplementation without CSFB's consent (which consent shall not be unreasonably
withheld). If, at any time prior to the completion of the resale of the Offered
Securities by the Purchasers, any event occurs as a result of which the Offering
Document as then amended or supplemented would include (as of its date or the
last date of its amendment or supplementation, whichever is later) 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, not misleading, the Company promptly will notify the
Purchasers through CSFB of such event and promptly will prepare, at its own
expense, an amendment or supplement which will correct such statement or
omission. Neither CSFB's consent to, nor the Purchasers' delivery to offerees or
investors of, any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 6.
(b) The Company will furnish to CSFB copies of any preliminary
offering circular, the Offering Document and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as CSFB
reasonably requests. At any time when the Company is not subject to Section 13
or 15(d) of the Exchange Act and the Offered Securities are outstanding, the
Company will promptly furnish or cause to be furnished to CSFB and, upon
request, to each of the other Purchasers and, upon request of holders and
prospective purchasers of the Offered Securities, to such holders and
purchasers, copies of the information required to be delivered to holders and
prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision thereto) in order to permit
compliance with Rule 144A in connection with resales by such holders of the
Offered Securities. The Company and the Guarantors will pay the expenses of
printing and distributing to the Purchasers (and all such holders and
prospective purchasers) all such documents.
(c) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for investment
under the laws of such jurisdictions in the United States as CSFB reasonably
designates and will continue such qualifications in effect so long as required
for the resale of the Offered Securities by the Purchasers, provided that
neither the Company nor any of the Guarantors will be required to qualify as a
foreign corporation or to file a general consent to service of process or to
subject itself to taxation in any such jurisdiction.
12
(d) During the period of two years after the Closing Date or, if
earlier until such time as the Offered Securities are no longer restricted
securities (as defined in Rule 144 under the Securities Act), the Company will,
upon request, furnish to CSFB, each of the Purchasers and any holder of Offered
Securities a copy of the restrictions on transfer applicable to the Offered
Securities.
(e) During the period of two years after the Closing Date or, if
earlier until such time as the Offered Securities are no longer restricted
securities (as defined in Rule 144 under the Securities Act), 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 Offered Securities that have been
reacquired by any of them.
(f) To the extent that the Company's periodic reports under the
Exchange Act are not readily available in the Commission's EDGAR system (or any
successor thereto), or the Company no longer files periodic reports under
Section 13 or 15(d) of the Exchange Act, during the period of five years
hereafter, the Company will furnish to CSFB and, upon request, to each of the
other Purchasers, as soon as practicable after the end of each fiscal year, a
copy of its annual report to shareholders for such year; and the Company will
furnish to CSFB and, upon request, to each of the other Purchasers (i) as soon
as available, a copy of each report and any definitive proxy statement of the
Company filed with the Commission under the Exchange Act or mailed to
shareholders, and (ii) from time to time, such other information concerning the
Company as CSFB may reasonably request.
(g) During the period of two years after the Closing Date or, if
earlier until such time as the Offered Securities are no longer restricted
securities (as defined in Rule 144 under the Securities Act), the Company will
not and the Guarantors will not be or become, an open-end investment company,
unit investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, the Indenture and the
Registration Rights Agreement, including (i) the reasonable fees and expenses of
the Trustee and its counsel; (ii) all expenses in connection with the execution,
issue, authentication, packaging and initial delivery of the Offered Securities
and, as applicable, the Exchange Securities, the preparation and printing of
this Agreement, the Registration Rights Agreement, the Offered Securities, the
Indenture, the Offering Document and amendments and supplements thereto, and any
other document relating to the issuance, offer, sale and delivery of the Offered
Securities and as applicable, the Exchange Securities; (iii) the cost of listing
the Offered Securities and qualifying the Offered Securities for trading in The
PortalSM Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of
any advertising approved by the Company in connection with the issue of the
Offered Securities (v) for any reasonable expenses (including fees and
disbursements of counsel) incurred in connection with qualification of the
Offered Securities or the Exchange Securities for sale under the laws of such
jurisdictions in the United States as CSFB reasonably designates and the
printing of memoranda relating thereto; (vi) for any fees charged by investment
rating agencies for the rating of the Securities or the Exchange Securities, and
(vii) for expenses incurred in distributing preliminary offering circulars and
the Offering Document (including any amendments and supplements thereto) to the
Purchasers. The Company will also pay or
13
reimburse the Purchasers (to the extent incurred by them) for all travel
expenses of the Purchasers and the Company's officers and employees and any
other expenses of the Purchasers and the Company in connection with attending or
hosting meetings with prospective purchasers of the Offered Securities from the
Purchasers.
(i) In connection with the offering, until CSFB shall have
notified the Company and the other Purchasers of the completion of the resale of
the Offered Securities, neither the Company nor any of its affiliates has or
will, either alone or with one or more other persons, bid for or purchase for
any account in which it or any of its affiliates has a beneficial interest any
Offered Securities or attempt to induce any person to purchase any Offered
Securities; and neither it nor any of its affiliates will make bids or purchases
for the purpose of creating actual, or apparent, active trading in, or of
raising the price of, the Offered Securities.
(j) For a period of 90 days after the date of the initial offering
of the Offered Securities by the Purchasers, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, any
United States dollar-denominated debt securities issued or guaranteed by the
Company and having a maturity of more than one year from the date of issue
except issuances of Exchange Securities pursuant to the Registration Rights
Agreement, without the prior written consent of CSFB. The Company will not at
any time offer, sell, contract to sell, pledge or otherwise dispose of, directly
or indirectly, any securities under circumstances where such offer, sale,
pledge, contract or disposition would cause the exemption afforded by Section
4(2) of the Securities Act or the safe harbor of Regulation S thereunder to
cease to be applicable to the offer and sale of the Offered Securities.
(k) The Company will, concurrently with the issuance of the
Offered Securities on the Closing Date, enter into a new senior credit facility
(the "New Senior Credit Facility") and the New Senior Credit Facility will be in
full force and effect on the Closing Date, and the New Senior Credit Facility
will conform in all material respects to the description thereof contained in
the Offering Document. 6. Conditions of the Obligations of the Purchasers. The
obligations of the several Purchasers to purchase and pay for the Offered
Securities will be subject to the accuracy of the representations and warranties
on the part of the Company, the Domestic Guarantors and the Non-Swiss Foreign
Guarantors herein on the date hereof and on the Closing Date, to the accuracy of
the statements of officers of the Company made in certificates made pursuant to
the provisions hereof, to the performance by the Company and the Guarantors of
their obligations hereunder and to the following additional conditions
precedent:
(a) On or prior to midnight on the date hereof, (i) the
Company shall have caused PricewaterhouseCoopers LLP to have delivered
a "comfort letter" to the Representative, dated the date hereof and
addressed to the Purchasers and covering such matters as may be
requested by them and in form and substance satisfactory to them in all
respects, all as determined by the Representative in its sole
discretion (it being understood that in no event will the comfort
letter be less favorable than the draft delivered to Latham & Watkins
LLP on March 21, 2003) and (ii) the Final Offering Circular shall have
been finalized in form and substance satisfactory to the Representative
in all respects, all as determined by the Representative in its sole
14
discretion, or at such other time not later than 3 full business days
thereafter as the Representative and the Company may determine.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Purchasers including CSFB, is
material and adverse and makes it impractical or inadvisable to proceed
with completion of the offering or the sale of and payment for the
Offered Securities as contemplated by this agreement; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating) or any
announcement that the Company has been placed on negative outlook;
(iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as
would, in the judgment of a majority in interest of the Purchasers
including CSFB, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Offered Securities as
contemplated by this agreement, whether in the primary market or in
respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally on
the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (v) any banking moratorium declared by U.S. Federal or New York
authorities; (vi) any major disruption of settlements of securities or
clearance services in the United States; or (vii) any attack on,
outbreak or escalation of hostilities or act of terrorism involving the
United States, any declaration of war by Congress or any other national
or international calamity or emergency if, in the judgment of a
majority in interest of the Purchasers including CSFB, the effect of
any such attack, outbreak, escalation, act, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the offering or the sale of and payment for the Offered
Securities.
(c) The Representative shall have received an opinion,
dated the Closing Date, of Hunton & Williams LLP, counsel for the
Company, in substantially the form of Exhibit 2 hereto.
(d) The Representative shall have received opinions,
dated the Closing Date, from foreign counsel, concerning the Non-Swiss
Foreign Guarantors and the Swiss Guarantors named in Schedule D hereto,
in form and substance reasonably acceptable to the Representative and
customary for the type of transactions contemplated by this Agreement.
(e) The Representative shall have received from Latham &
Watkins LLP, counsel for the Purchasers, such opinion or opinions,
dated the Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities, the Final
15
Offering Circular, the exemption from registration for the offer and
sale of the Offered Securities by the Company to the several Purchasers
and the resales by the several Purchasers as contemplated hereby and
other related matters as CSFB reasonably may require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(f) The Representative shall have received a certificate,
dated the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state, on behalf of the Company, each of the
Domestic Guarantors and each of the Non-Swiss Foreign Guarantors, that
the representations and warranties of the Company, each of the Domestic
Guarantors and each of the Non-Swiss Foreign Guarantors, as applicable,
in this Agreement are true and correct, that the Company and each of
the Guarantors, as applicable, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, and that, subsequent to the
most recent financial statements included or incorporated by reference
in the Offering Document, there has been no Material Adverse Effect,
nor any development or event that would reasonably be expected to
result in a Material Adverse Effect, except as set forth in or
contemplated by the Offering Document or Exchange Act Reports.
(g) The Representative shall have received a letter,
dated the Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to the Closing Date for the purposes of this
subsection and such letter shall include all information contained in
the Final Offering Circular that would otherwise have been included in
the "comfort letter" required pursuant to subsection (a) had the Final
Offering Circular been finalized on the date hereof.
(h) The Company shall, concurrently with the issuance of
the Offered Securities on the Closing Date, enter into a new senior
credit facility (the "New Senior Credit Facility") and the New Senior
Credit Facility shall be in full force and effect on the Closing Date,
and the New Senior Credit Facility shall conform in all material
respects to the description thereof contained in the Offering Document.
The Company will furnish the Representative with such conformed copies
of such opinions, certificates, letters and documents as the Representative may
reasonably request. CSFB may in its sole discretion waive on behalf of the
Purchasers compliance with any conditions to the obligations of the Purchasers
hereunder.
7. Indemnification and Contribution.
(a) The Company, the Domestic Guarantors and the
Non-Swiss Foreign Guarantors will, jointly and severally, indemnify and
hold harmless each Purchaser, its partners, directors and officers and
each person, if any, who controls such Purchaser within the meaning of
Section 15 of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, to which such Purchaser may become
subject,
16
under the Securities Act or the Exchange Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering
Document, or any amendment or supplement thereto, or any related
preliminary offering circular, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, including any
losses, claims, damages or liabilities arising out of or based upon the
Company's failure to perform its obligations under Section 5(a) of this
Agreement, and will reimburse each Purchaser for any legal or other
expenses reasonably incurred by such Purchaser in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that none of
the Company or any of the Guarantors will be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance
upon and in conformity with written information furnished to the
Company by any Purchaser through CSFB specifically for use therein, it
being understood and agreed that the only such information consists of
the information described as such in subsection (b) below.
(b) Each Purchaser will severally and not jointly
indemnify and hold harmless the Company, the Domestic Guarantors and
the Non-Swiss Foreign Guarantors, their respective directors and
officers and each person, if any, who controls the Company or such
Domestic Guarantor or such Non-Swiss Foreign Guarantor within the
meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities to which the Company or such Domestic
Guarantor or such Non-Swiss Foreign Guarantor may become subject, under
the Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Offering Document, or
any amendment or supplement thereto, or any related preliminary
offering circular, or arise out of or are based upon the omission or
the alleged omission to state therein 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 each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such
Purchaser through CSFB specifically for use therein, and will reimburse
any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Purchaser consists of (i) the following information in the Preliminary
Offering Circular: (A) the last two sentences on page 8, (B) the second
sentence of the second paragraph on page 17, (C) the table set forth on
page 97, (D) the first sentence of the sixth paragraph on page 97, and
(E) the second sentence of the second paragraph on page 98, and (ii)
the names of the Purchasers on the cover page of the Final Offering
Circular and the corresponding information in the Final Offering
Circular, provided, however, that the Purchasers shall not be liable
for any
17
losses, claims, damages or liabilities arising out of or based upon the
Company's failure to perform its obligations under Section 5(a) of this
agreement.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party under this
section 7 except to the extent that the indemnifying party has been
materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided further that the failure to
notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes (i) an unconditional
release of such indemnified party from all liability on any claims that
are the subject matter of such action and (ii) does not include a
statement as to or an admission of fault-culpability or failure to act
by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7
is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, the Domestic
Guarantors and the Non-Swiss Foreign Guarantors on the one hand and the
Purchasers on the other from the offering of the Offered 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 Company, the Domestic Guarantors and the
Non-Swiss Foreign Guarantors on the one hand and the Purchasers on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by
the Company, the Domestic Guarantors and the Non-Swiss Foreign
Guarantors on the one hand and the Purchasers on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting
18
expenses) received by the Company, the Domestic Guarantors and the
Non-Swiss Foreign Guarantors bear to the total discounts and
commissions received by the Purchasers from the Company, the Domestic
Guarantors and the Non-Swiss Foreign Guarantors under this Agreement.
The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Domestic Guarantors
and the Non-Swiss Foreign Guarantors or the Purchasers and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid
by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this subsection
(d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the
amount by which the total discounts, fees and commissions received by
such Purchaser exceeds the amount of any damages which such Purchaser
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The Purchasers'
obligations in this subsection (d) to contribute are several in
proportion to their respective purchase obligations and not joint. 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.
(e) The obligations of the Company, the Domestic
Guarantors and the Non-Swiss Foreign Guarantors under this Section
shall be in addition to any liability which the Company and the
Guarantors may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Purchaser within
the meaning of the Securities Act or the Exchange Act; and the
obligations of the Purchasers under this Section shall be in addition
to any liability which the respective Purchaser may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls the Company or any of the Guarantors within the
meaning of the Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default
in their obligations to purchase Offered Securities hereunder and the aggregate
principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, CSFB may make arrangements satisfactory
to the Company for the purchase of such Offered Securities by other persons,
including any of the Purchasers, but if no such arrangements are made by the
Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to CSFB and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Purchaser, the
Company or the Guarantors, except as provided in
19
Section 9. As used in this Agreement, the term "Purchaser" includes any person
substituted for a Purchaser under this Section. Nothing herein will relieve a
defaulting Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, the Domestic Guarantors and the Non-Swiss Foreign
Guarantors or their respective officers and of the several Purchasers set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of any Purchaser, the Company, the Domestic Guarantors and the
Non-Swiss Foreign Guarantors or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Purchasers is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5(h) and the
respective obligations of the Company, the Domestic Guarantors and the Non-Swiss
Foreign Guarantors and the Purchasers pursuant to Section 7 shall remain in
effect, provided, however, if the Company does not enter into the New Senior
Credit Facility as specified in Section 6(h), the Company shall not be
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5(h). If the purchase of the Offered Securities by the Purchasers is not
consummated for any reason other than (x) solely because of the occurrence of
any event specified in clause (iii), (iv), (v), (vi) or (vii) of Section 6(b),
or (y) the Company does not enter into the New Senior Credit Facility as
specified in Section 6(h), the Company will reimburse the Purchasers for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by it in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and,
if sent to the Purchasers will be mailed, delivered or faxed and confirmed to
the Purchasers, c/o Credit Suisse First Boston LLC at Eleven Madison Avenue, New
York, N.Y. 10010-3629, Attention: Investment Banking Department - Transactions
Advisory Group (fax # 212-538-8246), or, if sent to the Company or the
Guarantors, will be mailed, delivered or faxed and confirmed to it at Ethyl
Corporation, 330 South Fourth Street, P.O. Box 2189, Richmond, Virginia
23218-2189, Attention: Secretary (fax # 804-788-5688).
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company and the
Guarantors as if such holders were parties thereto.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
20
13. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to principles of conflicts of laws.
14. Submission to Jurisdiction. The Company and the Guarantors
hereby submit to the non-exclusive jurisdiction of the Federal and state courts
in the Borough of Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
15. Amendments or Waivers. No amendment or waiver of any provision
of this Agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Company, the Guarantors and the Representative.
16. Swiss Guarantors. Each of the Swiss Guarantors is executing
this Agreement solely to evidence its obligation to issue its respective
Subsidiary Guarantee and Exchange Security Guarantee pursuant to the terms of
the Indenture. Each of Ethyl Services GmbH's and Ehtyl Administration GmbH's
liability (whether arising under contract, tort or otherwise) under this
Agreement shall at all times be limited to the amount of its balance sheet
profit available at the time of the payment, as determined by their respective
independent auditors, based upon their duly audited financial statements at the
time of such payment, taking into consideration any reduction of the balance
sheet profit from the date of the annual financial statements and the time of
the payment, minus 35% for the applicable withholding tax.
17. Entire Agreement. This Agreement, including the Schedules and
Exhibit hereto, the Registration Rights Agreement, the Indenture, the Offered
Securities, the Subsidiary Guarantees, the Exchange Securities and the Exchange
Security Guarantees constitute the entire agreement among the parties pertaining
to the subject matter hereof and supercedes all other prior and contemporaneous
agreements and understandings, both oral and written, of the parties in
connection therewith.
21
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Company, the Guarantors
and the several Purchasers in accordance with its terms.
Very truly yours,
ETHYL CORPORATION
By: /s/ Thomas E. Gottwald
--------------------------------
Name: Thomas E. Gottwald
Title: President and Chief Executive Officer
ETHYL ADDITIVES CORPORATION
By: /s/ Thomas E. Gottwald
--------------------------------
Name: Thomas E. Gottwald
Title: President
ETHYL PETROLEUM ADDITIVES, INC.
By: /s/ Thomas E. Gottwald
--------------------------------
Name: Thomas E. Gottwald
Title: President
ETHYL VENTURES, INC.
By: /s/ David A. Fiorenza
--------------------------------
Name: David A. Fiorenza
Title: President and Treasurer
ETHYL ASIA PACIFIC COMPANY
By: /s/ Thomas E. Gottwald
--------------------------------
Name: Thomas E. Gottwald
Title: Chief Executive Officer
ETHYL EXPORT CORPORATION
By: /s/ David A. Fiorenza
--------------------------------
Name: David A. Fiorenza
Title: President and Treasurer
ETHYL INTERAMERICA CORPORATIOn
By: /s/ Thomas E. Gottwald
--------------------------------
Name: Thomas E. Gottwald
Title: President
THE EDWIN COOPER CORPORATION
By: /s/ Thomas E. Gottwald
--------------------------------
Name: Thomas E. Gottwald
Title: President
INTERAMERICA TERMINALS CORPORATION
By: /s/ Thomas E. Gottwald
--------------------------------
Name: Thomas E. Gottwald
Title: President
ETHYL EUROPE SPRL
By: /s/ M. A. Lewis
--------------------------------
Name: M. A. Lewis
Title: Managing Director
ETHYL ADMINISTRATION GMBH
By: /s/ David Kauzig
--------------------------------
Name: David Kauzig
Title: Director
ETHYL SERVICES, GMBH
By: /s/ David Kauzig
--------------------------------
Name: David Kauzig
Title: Director
ETHYL BRASIL ADITIVOS, LTDA
By: /s/ Tito Leal
--------------------------------
Name: Tito Leal
Title: Plant Manager
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
Acting on behalf of themselves
and as the Representative of
the several Purchasers
By CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Richard H. Whitney
-----------------------------------------
Name: Richard H. Whitney
Title: Managing Director