E-P ACQUISITION, INC.
to be merged into Eagle-Picher Industries, Inc.
$220,000,000 9 3/8% Senior Subordinated Notes due 2008
NOTES PURCHASE AGREEMENT
February 19, 1998
New York, New York
SBC Warburg Dillon Read Inc.
535 Madison Avenue
New York, New York 10022
ABN AMRO Incorporated
1325 Avenue of the Americas
New York, New York 10019
Ladies and Gentlemen:
E-P Acquisition, Inc., a Delaware corporation (the "ISSUER"), to be
merged on or prior to the Closing Date (as defined herein) into Eagle-Picher
Industries, Inc., an Ohio corporation (the "COMPANY"), and Eagle-Picher
Holdings, Inc. ("PARENT") jointly and severally agree with you as follows:
1. ISSUANCE OF NOTES. The Issuer proposes to issue and sell to SBC
Warburg Dillon Read Inc. and ABN AMRO Incorporated (together, the "INITIAL
PURCHASERS") an aggregate of $220,000,000 principal amount of 9 3/8% Senior
Subordinated Notes due 2008 (the "ORIGINAL NOTES"). The Original Notes will be
issued pursuant to an indenture (the "NOTES INDENTURE"), to be dated the Closing
Date (as defined below), by and among the Issuer, the Guarantors and The Bank of
New York, as trustee (the "TRUSTEE"). The Issuer's obligations under the
Original Notes will be succeeded to, upon the merger, by the Company and will be
unconditionally guaranteed (the "GUARANTEES") on an unsecured senior
subordinated basis by Parent and the Subsidiary Guarantors (collectively, the
"Guarantors"). All references herein to the Original Notes include the related
Guarantees, unless the context otherwise requires. Capitalized terms used but
not otherwise defined herein shall have the meanings given to such terms in the
Notes Indenture or the Offering Memorandum (as defined below).
The Original Notes will be offered and sold to the Initial Purchasers
pursuant to an exemption from the registration requirements under the Securities
Act of 1933, as amended (the "ACT"). The Issuer has prepared a preliminary
offering memorandum dated February 4, 1998 (the "PRELIMINARY OFFERING
MEMORANDUM") and a final offering memorandum dated February 20, 1998 (the
"OFFERING MEMORANDUM") relating to the Issuer, the Company, the Guarantors and
the Original Notes.
The Initial Purchasers have advised the Issuer that the Initial
Purchasers intend, as soon as they deem practicable after this Notes Purchase
Agreement has been executed and delivered, to resell (the "EXEMPT RESALES") the
Original Notes purchased by the Initial Purchasers under this Notes Purchase
Agreement (this "AGREEMENT") in private sales exempt from registration under the
Act on the terms set forth in the Offering Memorandum, as amended or
supplemented, solely to (i) persons whom the Initial Purchasers reasonably
believe to be "qualified institutional buyers," as defined in Rule 144A under
the Act ("QIBS"), and (ii) other eligible purchasers pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Act; the persons specified in clauses (i) and (ii) are sometimes
collectively referred to herein as the "ELIGIBLE PURCHASERS."
Holders (including subsequent transferees) of the Original Notes will
have the registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT") to be dated the Closing Date in form and
substance satisfactory to the Initial Purchasers and conforming to the
description thereof in the Offering Memorandum, for so long as such Original
Notes constitute "TRANSFER RESTRICTED SECURITIES" (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Issuer will agree to (i) file with the Securities and Exchange Commission
(the "COMMISSION") under the circumstances set forth in the Registration Rights
Agreement, (a) a registration statement under the Act (the "EXCHANGE OFFER
REGISTRATION STATEMENT") relating to a new issue of debt securities (the "NEW
NOTES" and, together with the Original Notes, the "NOTES," which term includes
the Guarantees related thereto) to be offered in exchange for the Original Notes
(the "EXCHANGE OFFER") and issued under the Notes Indenture or an indenture
substantially identical to the Notes Indenture and/or (b) under certain
circumstances set forth in the Registration Rights Agreement, a shelf
registration statement pursuant to Rule 415 under the Act (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer Registration
Statement, the "REGISTRATION STATEMENTS") relating to the resale by certain
holders of the Original Notes, and (ii) to cause such Registration Statements to
be declared effective. This Agreement, the Notes, the
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Notes Indenture and the Registration Rights Agreement are hereinafter sometimes
referred to collectively as the "OPERATIVE DOCUMENTS."
Upon original issuance of the Original Notes and until such time as the
same is no longer required under the applicable requirements of the Act, the
Original Notes shall bear the legend relating thereto set forth under "Transfer
Restrictions" in the Offering Memorandum.
Concurrently with the offering of Notes hereby, Parent is offering (the
"PREFERRED STOCK OFFERING") approximately $80.0 million of gross proceeds of 11
3/4% Cumulative Redeemable Exchangeable Preferred Stock (the "PREFERRED STOCK").
In connection with the Acquisition (as defined below) and the offering of the
Original Notes hereby, the Issuer, the Company and the Guarantors will enter
into a Credit Agreement (the "CREDIT AGREEMENT") with ABN AMRO Bank N.V., as
Agent, and the other agents and lenders party thereto. The net proceeds from the
sale of the Original Notes and from the Preferred Stock Offering and borrowings
under the New Credit Agreement will be used as described under "The Acquisition
and Use of Proceeds" in the Offering Memorandum, including, but not exclusively,
(i) to pay the Merger Consideration in connection with the merger of the Issuer
into the Company (the "ACQUISITION") pursuant to a Merger Agreement (the "MERGER
AGREEMENT") dated as of December 23, 1997 by and among the Issuer, Parent, the
Company and the Eagle-Picher Industries, Inc. Personal Injury Settlement Trust
(the "TRUST") and (ii) to repay the total amount outstanding under the 10%
Debentures and (iii) to redeem 660,000 shares of Common Stock from the Trust.
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained in this Agreement, the Issuer
agrees to issue and sell to the Initial Purchasers, and the Initial Purchasers
agree to purchase from the Issuer, severally and not jointly, the aggregate
principal amount of Original Notes set forth opposite its name in Schedule I
hereto. The purchase price for the Original Notes shall be 99.836% of their
principal amount. The Guarantors shall unconditionally guarantee on an unsecured
senior subordinated basis the Issuer's obligations under the Notes.
3. DELIVERY AND PAYMENT. Delivery of, and payment of the purchase
price for, the Original Notes shall be made at 10:00 a.m., New York City time,
on February 24, 1998 (such date and time, the "CLOSING DATE") at the offices of
Howard, Darby & Levin, 1330 Avenue of the Americas, New York, New York 10019.
The Closing Date and the location of delivery of and the form of payment for the
Original Notes may be varied by mutual agreement between the Initial Purchasers
and the Issuer.
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One or more of the Original Notes in global form registered in such
names as the Initial Purchasers may request upon at least one business day's
notice prior to the Closing Date, having an aggregate principal amount
corresponding to the aggregate principal amount of the Original Notes, shall be
delivered by the Issuer to the Initial Purchasers (or as the Initial Purchasers
direct), against payment by the Initial Purchasers of the purchase price
therefor by means of transfer of immediately available funds to such account or
accounts as the Issuer shall specify prior to the Closing Date, or by such means
as the parties hereto shall agree prior to the Closing Date. The Original Notes
in global form shall be made available to the Initial Purchasers for inspection
not later than 1:00 p.m. on the business day immediately preceding the Closing
Date.
4. AGREEMENTS OF THE ISSUER. The Issuer covenants and agrees
with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified by
the Initial Purchasers, without charge, with as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any
amendments or supplements thereto, as the Initial Purchasers may
reasonably request. The Issuer consents to the use of the Preliminary
Offering Memorandum and the Offering Memorandum, and any amendments and
supplements thereto required pursuant to this Agreement, by the Initial
Purchasers in connection with Exempt Resales that are in compliance
with this Agreement.
(b) Not to amend or supplement the Offering Memorandum prior to the
Closing Date unless the Initial Purchasers shall previously have been
advised of, and shall not have objected to, such amendment or
supplement within a reasonable time, but in any event not longer than
two business days after being furnished with a copy of such amendment
or supplement. The Issuer shall promptly prepare, upon the Initial
Purchasers' reasonable request, any amendment or supplement to the
Offering Memorandum that may be necessary or advisable in connection
with Exempt Resales.
(c) If, during the time that an Offering Memorandum is required to be
delivered in connection with any Exempt Resales or market-making
transactions after the date of this Agreement and prior to the
consummation of the Exchange Offer, any event shall occur that, in the
judgment of the Issuer or in the judgment of counsel to the Initial
Purchasers, makes any statement of a material fact in the Offering
Memorandum as then amended or supplemented untrue or that requires the
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making of any additions to or changes in the Offering Memorandum in
order to make the statements in the Offering Memorandum as then amended
or supplemented, in the light of the circumstances under which they are
made, not misleading, or if it is necessary to amend or supplement the
Offering Memorandum to comply with all applicable laws, the Issuer
shall promptly notify the Initial Purchasers of such event and prepare
an appropriate amendment or supplement to the Offering Memorandum so
that (i) the statements in the Offering Memorandum as amended or
supplemented will, in the light of the circumstances at the time that
the Offering Memorandum is delivered to prospective Eligible
Purchasers, not be misleading and (ii) the Offering Memorandum will
comply with applicable law.
(d) To cooperate with the Initial Purchasers and counsel to the
Initial Purchasers in connection with the qualification or registration
of the Original Notes under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may request and to continue
such qualification in effect so long as required for the Exempt
Resales. Notwithstanding the foregoing, neither the Issuer nor the
Company nor the Guarantors shall be required to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to
file a general consent to service of process in any such jurisdiction
or subject itself to taxation in excess of a nominal dollar amount in
any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by the
Initial Purchasers, to confirm such advice in writing, of the issuance
by any state securities commission of any stop order suspending the
qualification or exemption from qualification of any of the Original
Notes for offering or sale in any jurisdiction, or the initiation of
any proceeding for such purpose by any state securities commission or
other regulatory authority. The Issuer shall use its reasonable best
efforts to prevent the issuance of any stop order or order suspending
the qualification or exemption of any of the Original Notes under any
state securities or Blue Sky laws, and if at any time any state
securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption of any of the Original
Notes under any state securities or Blue Sky laws, the Issuer shall use
its reasonable best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement becomes effective or is terminated, to
pay all costs, expenses, fees, disbursements (including fees, expenses
and disbursements of counsel to the Issuer, the Guarantors and
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the Company, but not of counsel to the Initial Purchasers (except
pursuant to clause (iv) herein) or expenses of the Initial Purchases if
the transactions contemplated hereby are consummated) and stamp,
documentary or similar taxes incident to and in connection with: (i)
the preparation, printing and distribution of the Preliminary Offering
Memorandum and the Offering Memorandum (including, without limitation,
financial statements) and all amendments and supplements thereto, (ii)
the preparation and delivery of the Operative Documents and all other
agreements, memoranda, correspondence and documents prepared and
delivered in connection with this Agreement and with the Exempt
Resales, (iii) the issuance, transfer and delivery by the Issuer and
the Guarantors of the Original Notes and the Guarantees, respectively,
to the Initial Purchasers, (iv) the qualification or registration of
the Notes for offer and sale under the securities or Blue Sky laws of
the several states of the United States or provinces of Canada
(including, without limitation, the cost of printing and mailing a
preliminary and final Blue Sky memorandum and the fees and
disbursements of counsel to the Initial Purchasers relating thereto),
(v) the furnishing of such copies of the Preliminary Offering
Memorandum and the Offering Memorandum, and all amendments and
supplements thereto, as may be reasonably requested for use in
connection with Exempt Resales, (vi) the preparation of certificates
for the Notes, (vii) the application for quotation of the Notes in the
National Association of Securities Dealers, Inc. ("NASD") Automated
Quotation System - PORTAL ("PORTAL"), including, but not limited to,
all listing fees and expenses, (viii) the approval of the Notes by The
Depository Trust Company ("DTC") for "book-entry" transfer, (ix) the
rating of the Notes by rating agencies, (x) the fees and expenses of
the Trustee and its counsel and (xi) the performance by the Issuer, the
Company and the Guarantors of their other obligations under the
Operative Documents, including, but not limited to, the fees,
disbursements and expenses of the Issuer's counsel and accountants.
(g) To use the proceeds from the sale of the Original Notes in the
manner described in the Offering Memorandum under the caption "The
Acquisition and Use of Proceeds."
(h) To do and perform all things required to be done and performed
under this Agreement by it prior to or after the Closing Date and to
satisfy all conditions precedent on its part to the delivery of the
Original Notes.
(i) Not to, and not to permit any Subsidiary of the Company to,
sell, offer for sale or solicit offers to buy or otherwise negotiate
in respect
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of any security (as defined in the Act) that would be integrated with
the sale of the Original Notes in a manner that would require the
registration under the Act of the sale of the Original Notes to the
Initial Purchasers or any Eligible Purchasers.
(j) During the period of two years after the Closing Date or, if
earlier, until such time as the Original Notes are no longer restricted
securities (as defined in Rule 144 under the Act), not to, not to
permit any Subsidiary to, and to use its reasonable best efforts to
cause its other affiliates (as defined in Rule 144 under the Act) not
to, resell any of the Original Notes that have been reacquired by any
of them.
(k) Not to engage, not to allow any Subsidiary to engage, and to use
its reasonable best efforts to cause its other affiliates and any
person acting on its behalf (other than in any case any Initial
Purchaser, as to whom the Issuer and Parent make no covenant) not to
engage, in any form of general solicitation or general advertising
(within the meaning of Regulation D under the Act) in connection with
any offer or sale of the Original Notes in the United States.
(l) Not to engage, not to allow any Subsidiary to engage, and to use
its reasonable best efforts to cause its other affiliates and any
person acting on its behalf (other than in any case any Initial
Purchaser, as to whom the Issuer and Parent make no covenant) not to
engage in any directed selling effort with respect to the Original
Notes, and agrees to comply with the offering restrictions requirement
of Regulation S under the Act. Terms used in this paragraph have the
meanings given to them by Regulation S.
(m) In connection with the offering, until 90 days after the Closing
Date, not to, not to permit any Subsidiary to, and to use its
reasonable best efforts to cause its other affiliates not to, 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 Original Notes; 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 Original Notes.
(n) During the period of two years after the Closing Date or, if
earlier, until such time as the Original Notes are no longer restricted
securities (as defined in Rule 144 under the Act), not to be or become
a closed-end investment company required to be registered, but not
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registered, under the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT").
(o) From and after the Closing Date, for so long as any of the Notes
remain outstanding and are "restricted securities" within the meaning
of Rule 144(a)(3) under the Act and during any period in which the
Issuer is not subject to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), to make available upon
request the information required by Rule 144(d)(4) under the Act to (i)
any Holder or beneficial owner or Notes in connection with any sale of
such Notes and (ii) any prospective purchase of such Notes from any
such Holder or beneficial owner designated by the Holder or beneficial
owner. The Issuer will pay the expenses of printing and distributing
such documents.
(p) To comply with all its agreements set forth in the Registration
Rights Agreement and all agreements set forth in the representations
letter of the Issuer to DTC relating to the approval of the Notes by
DTC for "book-entry" transfer and to obtain approval of the Notes by
DTC for "book-entry" transfer.
(q) To use its reasonable best efforts to effect the inclusion of
the Original Notes in PORTAL.
(r) Prior to the Closing Date, to furnish to the Initial Purchasers,
as soon as they have been prepared by the Company and its Subsidiaries,
a copy of any regularly prepared final internal financial statements of
the Company and its Subsidiaries for any period subsequent to the
period covered by the financial statements appearing in the Offering
Memorandum and prior to the Closing Date.
(s) Not to distribute prior to the Closing Date any offering material
in connection with the offer and sale of the Original Notes other than
the Preliminary Offering Memorandum and the Offering Memorandum.
(t) To cause each Original Note to bear the legend set forth in the
form of Original Note set forth in the Notes Indenture until such
legend shall no longer be necessary or advisable because the Notes are
no longer subject to the restrictions on transfer described therein.
5. REPRESENTATIONS AND WARRANTIES. (a) Each of the Issuer
and Parent represents and warrants to the Initial Purchasers that:
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(i) Each of the Preliminary Offering Memorandum and the Offering
Memorandum has been prepared in connection with the Exempt Resales.
Neither the Preliminary Offering Memorandum nor the Offering
Memorandum, nor any supplement or amendment thereto, contains any
untrue statement of a material fact or omits 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;
provided, however, that the Issuer and Parent make no representation
or warranty with respect to information contained in or omitted from
the Preliminary Offering Memorandum or the Offering Memorandum, as
supplemented or amended, in reliance upon and in conformity with the
information set forth in Section 9 hereto and furnished to the Issuer
and Parent in writing by or on behalf of the Initial Purchasers
expressly for inclusion in the Preliminary Offering Memorandum or the
Offering Memorandum or any supplement or amendment thereto. No order
preventing the use of either the Preliminary Offering Memorandum or
the Offering Memorandum, or any order asserting that any of the
transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued or to the
knowledge of Issuer or Parent threatened.
(ii) There are no securities of either the Company or the Guarantors
that are listed on a national securities exchange registered under
Section 6 of the Exchange Act or that are quoted in a United States
automated interdealer quotation system.
(iii) As of the date of this Agreement, the Trust beneficially owns
100% of the outstanding common stock equity ownership of the Company
and, as of the Closing Date, the Company shall have an authorized
capitalization as set forth under the heading entitled "Company Pro
Forma" in the section of the Offering Memorandum entitled
"Capitalization". Attached as Schedule A is a true and complete list
of all Subsidiaries, their jurisdictions of incorporation, type of
entity and equity ownership. All of the issued and outstanding shares
of capital stock of each Subsidiary have been duly authorized and
validly issued, are fully paid and nonassessable. All shares of
capital stock of the Subsidiaries that are owned of record directly by
the Company or indirectly by a wholly-owned Subsidiary of the Company
are owned free and clear of any lien, security interest, pledge,
charge, encumbrance, equity or claim; none of the outstanding shares
of capital stock of each such Subsidiary was issued in violation of,
or subject to, any preemptive or similar rights or the charter or
by-laws of the Issuer, the Company or such Subsidiary or any agreement
to which the Issuer, the Company or such Subsidiary is a party.
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Upon the closing of the Acquisition, there will not be any outstanding
rights, warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other equity
interest of the Company's Subsidiaries, which shares of capital stock
or other equity interests are held by the Company.
(iv) The Issuer, the Company, Parent and each Subsidiary has been
duly incorporated, is validly existing as a corporation in good
standing (or its equivalent in the case of non-U.S. Subsidiaries)
under the laws of its respective jurisdiction of incorporation and has
all requisite corporate power and authority, and all necessary
authorizations, approvals, orders, licenses, certificates and permits
of and from regulatory or governmental officials, bodies and
tribunals, except where the failure to obtain such authorizations,
approvals, orders, licenses, certificates and permits would not
reasonably be expected to have a Material Adverse Effect, to (A) carry
on its business as it is currently being conducted and as described in
the Offering Memorandum and (B) own, lease, license and operate its
respective properties in accordance with its business as currently
conducted. The Company and each Restricted Subsidiary is duly
qualified and in good standing as a foreign corporation authorized to
do business in each jurisdiction in which the nature of its business
or its ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not, either
individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect. A "MATERIAL ADVERSE EFFECT" means any
material adverse effect on the business, condition (financial or
other), properties, results of operations or prospects of the Company
and its Subsidiaries, taken as a whole.
(v) Each of the Issuer, the Company and each Guarantor has all
requisite corporate power and authority to execute, deliver and
perform all of its obligations under the Operative Documents to which
it is a party and to consummate the transactions contemplated by the
Operative Documents to be consummated on its part and, without
limitation, the Issuer has all requisite corporate power and authority
to issue, sell and deliver the Notes and each Guarantor has all
requisite corporate power and authority to execute, deliver and
perform all its obligations under its Guarantee.
(vi) This Agreement has been duly and validly authorized, executed
and delivered by the Issuer and Parent.
(vii) The Notes Indenture, including the Guarantees set forth
therein, has been, or upon the Closing Date will be, duly and validly
authorized by the Issuer and each Guarantor and, when duly executed
and
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delivered by the Issuer, each Guarantor and the Trustee (assuming the
due authorization, execution and delivery thereof by the Trustee),
will be a legal, valid and binding obligation of each of the Issuer
and each Guarantor, enforceable against each of them in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity and the
discretion of the court before which any proceedings therefor may be
brought. The Notes Indenture, when executed and delivered, will
conform in all material respects to the description thereof in the
Preliminary Offering Memorandum and the Offering Memorandum.
(viii) The Original Notes have been, or upon the Closing Date will
be, duly and validly authorized for issuance and sale to the Initial
Purchasers by the Issuer and, when issued, authenticated and delivered
by the Issuer against payment by the Initial Purchasers in accordance
with the terms of this Agreement and the Notes Indenture, the Original
Notes will be legal, valid and binding obligations of the Issuer,
entitled to the benefits of the Notes Indenture and enforceable
against the Issuer in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by
general principles of equity and the discretion of the court before
which any proceedings therefor may be brought. The Original Notes,
when issued, authenticated and delivered, will conform in all material
respects to the description thereof in the Preliminary Offering
Memorandum and the Offering Memorandum.
(ix) The New Notes have been, or upon the Closing Date will be, duly
and validly authorized for issuance by the Issuer and, when issued,
authenticated and delivered by the Issuer in accordance with the terms
of the Registration Rights Agreement, the Exchange Offer and the Notes
Indenture, the New Notes will be legal, valid and binding obligations
of the Issuer, entitled to the benefits of the Notes Indenture and
enforceable against the Issuer in accordance with their terms, except
that enforceability of the New Notes may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity and the discretion of the court
before which any proceedings therefor may be brought. The New Notes,
when issued, authenticated and delivered, will conform in all material
respects to the
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description thereof in the Preliminary Offering Memorandum and the
Offering Memorandum.
(x) The Registration Rights Agreement has been, or upon the Closing
Date will be, duly and validly authorized, executed and delivered by
the Issuer and, when duly executed and delivered by the Issuer and the
Initial Purchasers, will constitute a legal, valid and binding
obligation of the Issuer, enforceable against it in accordance with
its terms, except that (A) enforceability of the Registration Rights
Agreement may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles
of equity and the discretion of the court before which any proceedings
therefor may be brought and (B) any rights to indemnity or
contribution thereunder may be limited by federal and state securities
laws and public policy considerations. The Registration Rights
Agreement will conform in all material respects to the description
thereof in the Preliminary Offering Memorandum and the Offering
Memorandum.
(xi) All taxes, fees and other governmental charges that are due and
payable on or prior to the Closing Date in connection with the
execution, delivery and performance of the Operative Documents, the
Credit Agreement and the Merger Agreement and the execution, delivery
and sale of the Original Notes shall have been paid by or on behalf of
the Issuer at or prior to the Closing Date.
(xii) None of the Issuer, the Company, Parent or any Subsidiary is
(A) in violation of its charter, constitutive documents or bylaws or
(B) in default (or, with notice or lapse of time or both, would be in
default) in the performance or observance of any obligation,
agreement, covenant or condition contained in any bond, debenture,
note, indenture, mortgage, deed of trust, loan or credit agreement,
lease, license, franchise agreement, authorization, permit,
certificate or other agreement or instrument to which any of them is a
party or by which any of them is bound or to which any of their assets
or properties is subject (collectively, "AGREEMENTS AND INSTRUMENTS"),
or (C) in violation of any law, statute, rule, regulation, judgment,
order or decree of any domestic or foreign court with jurisdiction
over any of them or any of their assets or properties or other
governmental or regulatory authority, agency or other body, that, in
the case of clauses (B) and (C) herein, would reasonably be expected
to have a Material Adverse Effect. There exists no condition that,
with notice, the passage of time or otherwise, would constitute a
default by the Issuer, the Company, Parent or any Subsidiary under any
such document or
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instrument or result in the imposition of any penalty or the
acceleration of any indebtedness, other than penalties, defaults or
conditions that would not have a Material Adverse Effect.
(xiii) The Credit Agreement has been, or upon the Closing Date will
be, authorized, executed and delivered by the Issuer, the Guarantors,
ABN AMRO Bank N.V., as Agent, and the other agents and lenders party
thereto will constitute the legal, valid and binding obligations of
the Issuer and the Guarantors, enforceable against the Issuer and the
Guarantors, in accordance with their terms, except that enforceability
of the Credit Agreement may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws
affecting the enforceability of creditors' rights generally and by
general principles of equity and the discretion of the court before
which any proceedings therefor may be brought. The Credit Agreement
conforms in all material respects to the description thereof in the
Preliminary Offering Memorandum and the Offering Memorandum.
(xiv) The Merger Agreement has been duly and validly authorized,
executed and delivered by the Issuer and Parent, and constitutes a
legal, valid and binding obligation of the Issuer and Parent
enforceable against the Issuer and Parent in accordance with its terms
except that enforceability of the Merger Agreement may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws affecting the enforceability of creditors'
rights generally and by general principles of equity and the
discretion of the court before which any proceedings therefor may be
brought.
(xv) None of (A) the execution and delivery by the Issuer and Parent
of this Agreement and the Registration Rights Agreement, (B) the
execution, delivery and performance by the Issuer or each of the
Guarantors of (x) the other Operative Documents, (y) the Credit
Agreement or (z) the Merger Agreement to the extent each is a party or
(C) the consummation of the offer and sale of the Original Notes, the
Preferred Stock Offering or the Acquisition does or will violate,
conflict with or constitute a breach of any of the terms or provisions
of, or a default under (or an event that with notice or the lapse of
time, or both, would constitute a default), or require consent under,
or result in the creation or imposition of a lien (other than, as of
the Closing Date, the liens imposed under the Credit Agreement),
charge or encumbrance on any property or assets of the Issuer, the
Company, Parent or any Subsidiary or an acceleration of any
indebtedness of the Issuer, the Company, Parent or any Subsidiary
pursuant to, (i) the charter, constitutive documents or bylaws of
13
the Issuer, the Company, Parent or any Subsidiary, (ii) assuming the
consummation of the Acquisition and the transactions contemplated
thereby, any Agreement or Instrument, (iii) any law, statute, rule or
regulation applicable to the Issuer, the Company, Parent or any
Subsidiary or their respective assets or properties or (iv) any
judgment, order or decree of any domestic or foreign court or
governmental agency or authority having jurisdiction over the Issuer,
the Company, Parent or any Subsidiary or their respective assets or
properties. Assuming the accuracy of the representations and
warranties of the Initial Purchasers in Section 5(b) of this
Agreement, no consent, approval, authorization or order of, or filing,
registration, qualification, license or permit of or with, any court
or governmental agency, body or administrative agency, domestic or
foreign, is required to be obtained or made by the Issuer, the Company
or any Guarantor for (1) the execution and delivery by the Issuer or
Parent of this Agreement or the Registration Rights Agreement, (2) the
execution, delivery and performance by the Issuer and each Guarantor
of (x) the other Operative Documents, (y) the Credit Agreement or (z)
the Merger Agreement to the extent each is a party or (3) the
consummation of the Acquisition or any of the transactions
contemplated thereby, except (x) such as have been or will be obtained
or made on or prior to the Closing Date, (y) registration of the
Exchange Offer or resale of the Notes under the Act pursuant to the
Registration Rights Agreement or (z) such as may be required by the
NASD. No consents or waivers from any other person or entity are
required for the execution, delivery and performance of this Agreement
or any of the other Operative Documents, the execution, delivery and
performance of the Merger Agreement or the Credit Agreement or the
consummation of the Preferred Stock Offering or the Acquisition or any
of the transactions contemplated thereby, other than such consents and
waivers as have been obtained or will be obtained prior to the Closing
Date.
(xvi) The Issuer has delivered or made available to the Initial
Purchasers true and correct executed copies of the Merger Agreement
and the Credit Agreement and there have been no amendments,
alterations or modifications thereto or waivers of any of the
provisions thereof. The representations and warranties of the Issuer
and each Guarantor set forth in the Merger Agreement and the Credit
Agreement will be true and correct in all material respects as of the
Closing Date (except to the extent that any such representation or
warranty was expressly made as of any other date, in which case such
representation and warranty was true and correct as of such date).
14
(xvii) Except as set forth in the Offering Memorandum, there is (A)
no action, suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now
pending or, to the knowledge of the Issuer or Parent, threatened or
contemplated, to which the Issuer, the Company, Parent or any
Subsidiary is or may be a party or to which the business, assets or
property of such person is or may be subject, (B) no statute, rule,
regulation or order that has been enacted, adopted or issued or, to
the knowledge of the Issuer or Parent, that has been proposed by any
governmental body or agency, domestic or foreign, (C) no injunction,
restraining order or order of any nature by a federal or state court
or foreign court of competent jurisdiction to which the Issuer, the
Company, Parent or any Subsidiary is or may be subject that (x) in the
case of clause (A) above, if determined adversely to the Issuer, the
Company, Parent or any Subsidiary, would reasonably be expected,
either individually or in the aggregate, (1) to have a Material
Adverse Effect or (2) to interfere with or adversely affect the
issuance of the Notes or the Guarantees in any jurisdiction or
adversely affect the consummation of the transactions contemplated by
any of the Operative Documents, the Merger Agreement or the Credit
Agreement and (y) in the case of clauses (B) and (C) above, would
reasonably be expected, either individually or in the aggregate, (1)
to have a Material Adverse Effect or (2) to interfere with or
adversely affect the issuance of the Notes or the Guarantees in any
jurisdiction or adversely affect the consummation of the transactions
contemplated by any of the Operative Documents, the Merger Agreement
or the Credit Agreement. Every request of any securities authority or
agency of any jurisdiction for additional information with respect to
the Notes that has been received by the Issuer, Parent or their
counsel prior to the date hereof has been, or will prior to the
Closing Date be, complied with in all material respects.
(xviii) Except as would not reasonably be expected to have a Material
Adverse Effect, (a) no labor disturbance by the employees of the
Company or any Subsidiary exists or, to the actual knowledge of the
Issuer or Parent, is imminent; (b) the Issuer, the Company, Parent and
each Subsidiary are in compliance in all respects with, as applicable,
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); (c) no "reportable
event" (as defined in ERISA) has occurred with respect to any "pension
plan" (as defined in ERISA) for which the Issuer, the Guarantors, the
Company or any Subsidiary would have any liability; (d) none of the
Issuer, the Company, Parent or any Subsidiary has incurred or expects
to incur liability under (A) Title IV of ERISA with respect to
termination of, or
15
withdrawal from, any "pension plan" or (B) Section 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and (e) each
"pension plan" that is maintained or contributed to by the Company or
its Subsidiaries that is intended to be qualified under Section 401(a)
of the Code is so qualified and nothing has occurred, whether by
action or by failure to act, that would cause the loss of such
qualification.
(xix) Except as set forth in the Offering Memorandum, each of the
Company and each Subsidiary (A) is in compliance with, or not subject
to costs or liabilities under, all local, state, provincial, federal
and foreign laws, regulations, rules of common law, orders and
decrees, as in effect as of the date hereof, and any present judgments
and injunctions issued or promulgated thereunder relating to pollution
or protection of public and employee health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants applicable to it or its business or operations or
ownership or use of its property ("ENVIRONMENTAL LAWS"), other than
noncompliance or such costs or liabilities that would not reasonably
be expected to have a Material Adverse Effect, and (B) possesses all
permits, licenses or other approvals required under applicable
Environmental Laws, except where the failure to possess any such
permit, license or other approval would not reasonably be expected to
have a Material Adverse Effect. All currently pending and, to the
knowledge of the Issuer or Parent, threatened proceedings, notices of
violation, demands, notices of potential responsibility or liability,
suits and existing environmental conditions by any governmental
authority which the Company or its Subsidiaries could reasonably
expect to result in a Material Adverse Effect are fully and accurately
described in all material respects in the Offering Memorandum.
(xx) Each of the Company and each Subsidiary has (A) good and
marketable title to all of the properties and assets described in the
Offering Memorandum as owned by it and good and marketable title to
the leasehold estates in the real and personal property described in
the Offering Memorandum as leased by them, free and clear of all Liens
(as defined in the Notes Indenture), except for Liens described in the
Offering Memorandum and Liens permitted under the Notes Indenture, and
such Liens as would not reasonably be expected to have a Material
Adverse Effect on the rights of the holders of the Notes, (B) all
licenses, certificates, permits, authorizations, approvals, franchises
and other rights from, and has made all declarations and filings with,
all federal, state, local and foreign authorities, all self-regulatory
authorities and all courts and other tribunals (each, an
"AUTHORIZATION") necessary to engage in the
16
business conducted by it in the manner described in the Offering
Memorandum, except where failure to hold such Authorizations would not
be reasonably expected to have a Material Adverse Effect, and (C) no
reason to believe that any governmental body or agency, domestic or
foreign, is considering limiting, suspending or revoking any such
Authorization, except where such limitation, suspension or revocation
would not reasonably be expected to have a Material Adverse Effect.
All such Authorizations are valid and in full force and effect and the
Company and each Subsidiary is in compliance in all material respects
with the terms and conditions of all such Authorizations and with the
rules and regulations of the regulatory authorities having
jurisdiction with respect to such Authorizations, except for any
invalidity, failure to be in full force and effect or noncompliance
with any Authorization that would not reasonably be expected to have a
Material Adverse Effect.
(xxi) The Company and each Subsidiary owns, possesses or has the
right to employ all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names
(collectively, the "INTELLECTUAL PROPERTY") necessary to conduct the
businesses operated by it as described in the Offering Memorandum,
except where the failure to own, possess or have the right to employ
such Intellectual Property would not reasonably be expected to have a
Material Adverse Effect. None of the Company or any Subsidiary has
received any notice of infringement of or conflict with (and neither
knows of any such infringement or a conflict with) asserted rights of
others with respect to any of the foregoing that, if such assertion of
infringement or conflict were sustained, would reasonably be expected
to have a Material Adverse Effect. The use of the Intellectual
Property in connection with the business and operations of the Company
and its Subsidiaries does not infringe on the rights of any person,
except for such infringement as would not reasonably be expected to
have a Material Adverse Effect.
(xxii) All tax returns required to be filed by the Company and each
Subsidiary have been filed in all jurisdictions where such returns are
required to be filed; and all taxes, including withholding taxes,
penalties and interest, assessments, fees and other charges due or
claimed to be due from such entities or that are due and payable have
been paid, other than those being contested in good faith and for
which reserves have been provided in accordance with generally
accepted accounting principles or those currently payable without
penalty or interest and except where the failure to make such required
filings or payment would not reasonably be
17
expected to have a Material Adverse Effect. To the knowledge of the
Issuer and Parent, there are no material proposed additional tax
assessments against any of the Company and its Subsidiaries or their
assets or property.
(xxiii) None of the Issuer, the Company, Parent or any Subsidiary is
an "investment company" or a company "controlled" by an "investment
company" incorporated in the United States within the meaning of the
Investment Company Act.
(xxiv) Except as set forth in the Registration Rights Agreement or as
described in the Offering Memorandum, there are no holders of
securities of the Issuer, the Company, Parent or any Subsidiary who
have the right to request or demand that the the Issuer, the Company,
Parent or any of the Company's Subsidiaries register under the Act or
analogous foreign laws and regulations any of such securities held by
any such holders.
(xxv) Each of the Company and its Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable
assurance that: (A) transactions are executed in accordance with
management's general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of its financial
statements in conformity with United States generally accepted
accounting principles and to maintain accountability for assets; (C)
access to assets is permitted only in accordance with management's
general or specific authorization; and (D) the recorded accountability
for its assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(xxvi) Each of the Company and its Subsidiaries maintains insurance
covering its properties, assets, operations, personnel and businesses,
and such insurance is of such type and in such amounts in accordance
with customary industry practice to protect the Company and its
Subsidiaries and their businesses. None of the Company or any
Subsidiary has received notice from any insurer or agent of such
insurer that any material capital improvements or other material
expenditures will have to be made in order to continue any insurance
maintained by any of them other than capital improvements and other
expenditures that have been budgeted by the Company or its
Subsidiaries, as the case may be.
(xxvii) None of the Issuer, the Company, any Restricted Subsidiary or
their Affiliates (as defined in Rule 501(b) of Regulation D under the
Act) has (A) taken, directly or indirectly, any action designed to, or
that
18
might reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Issuer to facilitate
the sale or resale of the Original Notes or (B) since the date of the
Preliminary Offering Memorandum (x) sold, bid for, purchased or paid
any person any compensation for soliciting purchases of the Original
Notes in a manner that would require registration of the Original
Notes under the Act or (y) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities
of the Issuer, the Company or any Restricted Subsidiary in a manner
that would require registration of the Original Notes under the Act.
(xxviii) None of the Issuer, the Company, any Restricted Subsidiary
or any of their Affiliates (as defined in Regulation D under the Act)
has, directly or through any agent, sold, offered for sale, contracted
to sell, pledged, solicited offers to buy or otherwise disposed of or
negotiated in respect of, any security (as defined in the Act) that is
currently or will be integrated with the sale of the Original Notes in
a manner that would require the registration of the Original Notes
under the Act.
(xxix) None of the Issuer, the Company, any Restricted Subsidiary or
any of their Affiliates, or any person acting on its or their behalf
(other than any Initial Purchasers, as to whom the Issuer and Parent
make no representation), is engaged in any directed selling effort
with respect to the Original Notes, and each of them has complied with
the offering restrictions requirement of Regulation S under the Act.
Terms used in this paragraph have the meaning given to them by
Regulation S.
(xxx) No registration under the Act of the Original Notes or
qualification of the Notes Indenture under the Trust Indenture Act of
1939, as amended (the "TRUST INDENTURE ACT"), is required for the sale
of the Original Notes to the Initial Purchasers as contemplated by
this Agreement or for the Exempt Resales, assuming in each case that
(A) the purchasers who buy the Original Notes in the Exempt Resales
are Eligible Purchasers and (B) the accuracy of and compliance with
the Initial Purchasers' representations, warranties and covenants
contained in Section 5(b) of this Agreement. No form of general
solicitation or general advertising (prohibited by the Act in
connection with offers or sales such as the Exempt Resales) was used
by the Issuer, the Company, any Restricted Subsidiary or any of their
representatives (other than any Initial Purchaser, as to whom the
Issuer and Parent make no representation) in connection with the offer
and sale of any of the Original Notes or in connection with Exempt
Resales, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium
19
or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising. None of the Issuer, the Company, any Restricted
Subsidiary or any of their affiliates has entered into, and none of
the Issuer, the Company, any Restricted Subsidiary or their affiliates
will enter into any contractual arrangement with respect to the
distribution of the Original Notes except for this Agreement.
(xxxi) The execution and delivery of this Agreement, the other
Operative Documents, and the sale of the Notes to be purchased by the
QIBs will not involve any prohibited transaction within the meaning of
Section 406(a) of ERISA or Section 4975(c)(1)(A)-(D) of the Code. The
representation made by the Issuer and Parent in the preceding sentence
is made in reliance upon and subject to the accuracy of, and
compliance with, the representations and covenants made or deemed made
by the Initial Purchasers in Section 5(b) and by the persons who
purchase the Notes as set forth in the Offering Memorandum under the
caption "Transfer Restrictions."
(xxxii) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, and each amendment or
supplement thereto, as of its date, contains the information specified
in, and meets the requirements of, Rule 144A(d)(4) under the Act.
(xxxiii) As of November 30, 1997, neither, the Company, nor any
Subsidiary had any material liabilities or obligations, direct or
contingent, that were not set forth in the Company's consolidated
balance sheet as of November 30, 1997 or in the notes thereto set
forth in the Offering Memorandum. Since November 30, 1997, except as
set forth or contemplated in the Offering Memorandum, (a) none of the
Issuer, the Company, Parent or any Subsidiary has (1) incurred any
liabilities or obligations, direct or contingent, that would
reasonably be expected to have a Material Adverse Effect, or (2)
entered into any material transaction not in the ordinary course of
business, (b) there has not been any event or development in respect
of the business or condition (financial or other) of the Company and
its Subsidiaries that, either individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect and (c) there
has been no dividend or distribution of any kind declared, paid or
made by the Company or any Subsidiary on any class of their capital
stock.
(xxxiv) None of the Issuer, the Company, Parent or any Subsidiary (or
any agent thereof acting on their behalf) has taken, and none of them
20
will take, any action that might cause this Agreement or the issuance
or sale of the Notes to violate Regulation G (12 C.F.R. Part 207),
Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221)
or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the
Federal Reserve System or analogous foreign laws and regulations, in
each case as in effect, or as the same may hereafter be in effect, on
the Closing Date.
(xxxv) Each firm of accountants that has certified or shall certify
the financial statements included or to be included as part of the
Offering Memorandum is an independent accountant within the meaning of
the Act. The historical financial statements and the notes thereto
included in the Preliminary Offering Memorandum and the Offering
Memorandum comply as to form in all material respects with the
requirements applicable to registration statements on Form S-1 under
the Act and present fairly in all material respects the consolidated
financial position and results of operations of Parent, the Company
and its Subsidiaries at the respective dates and for the respective
periods indicated. Such financial statements have been prepared in
accordance with United States generally accepted accounting principles
applied on a consistent basis throughout the periods presented (except
as disclosed in the Offering Memorandum). The pro forma financial
statements included in the Preliminary Offering Memorandum and the
Offering Memorandum have been prepared on a basis consistent with such
historical statements, except for the pro forma adjustments specified
therein, and give effect to assumptions made on a reasonable basis and
present fairly in all material respects the historical and proposed
transactions contemplated by the Preliminary Offering Memorandum and
the Offering Memorandum, this Agreement and the other Operative
Documents. The other financial and statistical information and data
included in the Preliminary Offering Memorandum and the Offering
Memorandum, historical and pro forma, are accurately presented in all
material respects and prepared on a basis consistent with the
financial statements and the books and records of Parent, the Company
and its Subsidiaries.
(xxxvi) None of the Issuer, the Company, Parent or any Subsidiary (A)
is "insolvent" as that term is defined in Section 101(32) of the
United States Bankruptcy Code (the "Bankruptcy Code") (11 U.S.C. '
101(32)), Section 2 of the Uniform Fraudulent Transfer Act ("UFTA") or
Section 2 of the Uniform Fraudulent Conveyance Act ("UFCA"), (B) has
"unreasonably small capital" as that term is used in Section
548(a)(2)(ii) of the Bankruptcy Code or Section 5 of the UFCA, (C) is
engaged or about to engage in a business or transaction for which its
remaining property is
21
"unreasonably small" in relation to the business or transaction as
that term is used in Section 4 of the UFTA or (D) is unable to pay its
debts as they mature or become due, within the meaning of Section
548(a)(2)(B)(iii) of the Bankruptcy Code, Section 4 of the UFTA and
Section 6 of the UFCA. The Issuer, Parent, the Company and each
Subsidiary now own assets having a value both at "fair valuation" and
at "present fair saleable value" greater than the amount required to
pay its "debts" as such terms are used in Section 2 of the UFTA and
Section 2 of the UFCA. None of the Issuer, the Company, Parent or any
Subsidiary of the Company will be rendered insolvent by the execution
and delivery of any of the Operative Documents or the Credit Agreement
or by the transactions contemplated hereunder or thereunder.
(xxxvii) Except as described in the Offering Memorandum, the
Consolidated Plan of Reorganization of the Eagle-Picher Group, the
Order of the Bankruptcy Court and the Ohio District Court and the
Injunction (together, the "Bankruptcy Plans and Orders") are in full
force and effect, and none of them has been stayed, voided, vacated or
reversed or modified in any material respect; the Eagle-Picher Group,
the Issuer and Parent have not taken any actions or omitted to take
actions in violation of the Bankruptcy Plans and Orders.
(xxxviii) Except as described in the section entitled "Certain
Relationships and Related Transactions" in the Offering Memorandum,
there are no contracts, agreements or understandings between the
Issuer, the Company, Parent or any Subsidiary and any other person
other than the Initial Purchasers that would give rise to a valid
claim against the Issuer, the Company, Parent, any Subsidiary or the
Initial Purchasers for a brokerage commission, finder's fee or like
payment in connection with the issuance, purchase and sale of the
Notes.
(xxxix) The Company has the authorized, issued and outstanding
capitalization set forth in the Preliminary Offering Memorandum and
the Offering Memorandum under the caption "Capitalization"; all of the
outstanding capital stock of the Company has been duly authorized and
validly issued, is or will be on the Closing Date fully paid and
nonassessable and was not issued in violation of any preemptive or
similar rights.
(xl) The statistical and market-related data and forward-looking
statements (within the meaning of Section 27A of the Act and Section
21E of the Exchange Act) included in the Preliminary Offering
Memorandum and the Offering Memorandum are based on or derived from
sources that
22
the Issuer and Parent believe to be reliable and accurate in all
material respects and represent their good faith estimates that are
made on the basis of data derived from such sources, and the Company
and its Subsidiaries have informed the Issuer and Parent that they
believe such sources to be reliable and accurate in all material
respects and have notified the Issuer and Parent as to their good
faith estimates made on the basis of data derived from such sources.
(xli) Each certificate signed by any officer of the Issuer or Parent
and delivered to the Initial Purchasers or counsel for the Initial
Purchasers pursuant to, or in connection with, this Agreement shall be
deemed to be a representation and warranty by the Issuer or Parent to
the Initial Purchasers as to the matters covered by such certificate.
(xlii) All of the representations and warranties made by the Issuer
and Parent in each of the Operative Documents will be true and correct
as of the Closing Date in all material respects, in each case after
giving effect to the Merger and the transactions contemplated thereby.
The Issuer and Parent acknowledge that the Initial Purchasers
and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Section 8 of this Agreement, counsel to the
Issuer and counsel to the Initial Purchasers will rely upon the
accuracy and truth of the foregoing representations and the Issuer and
Parent hereby consent to such reliance.
(b) Each Initial Purchaser represents, warrants and covenants (as to
itself only) to the Issuer that:
(i) It is a QIB with such knowledge and experience in financial and
business matters as are necessary in order to evaluate the merits and
risks of an investment in the Notes.
(ii) (A) It has not and will not solicit offers for, or offer or sell,
the Original Notes by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) or
in any manner involving a public offering within the meaning of Section
4(2) of the Act and (B) it has and will solicit offers for the Original
Notes only from, and will offer and sell the Original Notes only to (1)
persons whom the Initial Purchaser reasonably believes to be QIBs or,
if any such person is buying for one or more institutional accounts for
which such person is acting as fiduciary or agent, only when such
person has represented to the Initial Purchaser that each such account
is a QIB to whom notice has been
23
given that such sale or delivery is being made in reliance on Rule
144A, and, in each case, in reliance on the exemption from the
registration requirements of the Act pursuant to Rule 144A, or (2)
persons other than U.S. persons outside the United States in reliance
on the exemption from the registration requirements of the Act provided
by Regulation S.
(iii) With respect to offers and sales outside the United States,
(A) such Initial Purchaser will comply with all
applicable laws and regulations in each jurisdiction in which
it acquires, offers, sells or delivers Notes or has in its
possession or distributes either any Preliminary Offering
Memorandum or Offering Memorandum or any such other material,
in all cases at its own expense;
(B) the Original Notes have not been and will not be
registered under the Act and may not be offered or sold within
the United States or to, or for the account or benefit of,
U.S. persons except in accordance with Regulation S under the
Act or pursuant to an exemption from the registration
requirements of the Act;
(C) such Initial Purchaser has offered the Original Notes
and will offer and sell the Original Notes (1) as part of its
distribution at any time and (2) otherwise until 40 days after
the later of the commencement of the offering of the Original
Notes and the Closing Date, only in accordance with Rule 903
of Regulation S or another exemption from the registration
requirements of the Act. Accordingly, neither such Initial
Purchaser 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 Original
Notes, and any such persons have complied and will comply with
the offering restrictions requirements of Regulation S;
Terms used in this Section 5(b)(iii) have the
meanings given to them by Regulation S.
(iv) The source of funds being used by it to acquire the Original
Notes does not include the assets of any "employee benefit plan"
(within the meaning of Section 3 of ERISA) or any "plan" (within the
meaning of Section 4975 of the Code).
24
Each of the Initial Purchasers understands that the Issuer
and, for purposes of the opinions to be delivered to them pursuant to
Sections 8(g) and 8(h) hereof, counsel to the Issuer and counsel to the
Initial Purchasers will rely upon the accuracy and truth of the
foregoing representations, and each of the Initial Purchasers hereby
consents to such reliance.
6. INDEMNIFICATION.
(a) Each of the Issuer and Parent, on a joint and several basis,
agrees to indemnify and hold harmless each Initial Purchaser, each
person, if any, who controls an Initial Purchaser within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, the agents,
employees, officers and directors of the Initial Purchasers and the
agents, employees, officers and directors of any such controlling
person from and against any and all losses, liabilities, claims,
damages and expenses whatsoever (including, but not limited, to
reasonable attorneys' fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and
any and all reasonable amounts paid in settlement of any claim or
litigation) (collectively, "LOSSES") to which they or any of them may
become subject under the Act, the Exchange Act or otherwise insofar as
such Losses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum, or in any supplement thereto or amendment thereof, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that the Issuer and Parent will not be
liable in any such case to the extent, but only to the extent, that any
such Loss arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein
in reliance upon and in conformity with written information relating to
the Initial Purchasers furnished to the Issuer or Parent by or on
behalf of the Initial Purchasers expressly for use therein; and,
provided further, however, that the indemnity agreement contained in
this subsection (a) with respect to any Preliminary Offering Memorandum
shall not inure to the benefit of the Initial Purchasers or their
agents, employees, officers and directors for any Loss if the Offering
Memorandum corrected any such alleged untrue statement or omission and
if such Initial Purchasers failed to send or give a copy of the
Offering Memorandum at or prior to the written confirmation of a sale
of the Notes to the person alleging such Loss. This indemnity agreement
will be in addition to any liability that each of the Issuer and
25
Parent may otherwise have, including, but not limited to, liability
under this Agreement.
(b) The Initial Purchasers agree, severally and not jointly, to
indemnify and hold harmless the Issuer and Parent, each person, if any,
who controls the Issuer and Parent within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act, and each of its agents,
employees, officers and directors and the agents, employees, officers
and directors of any such controlling person from and against any
Losses to which they or either of them may become subject under the
Act, the Exchange Act or otherwise insofar as such Losses (or actions
in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum, or in any
amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
necessary 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 any such Loss arises out of
or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with information relating to the Initial Purchasers
furnished in writing to the Issuer and Parent by the Initial Purchasers
expressly for use therein. The Issuer, Parent and the Initial
Purchasers acknowledge that the information set forth in Section 9 is
the only information furnished in writing by the Initial Purchasers to
the Issuer and Parent expressly for use in the Preliminary Offering
Memorandum or the Offering Memorandum.
(c) Promptly after receipt by an indemnified party under subsection
6(a) or 6(b) above of notice of the commencement of any action, suit or
proceeding (collectively, an "ACTION"), such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement of such
action (but the failure so to notify an indemnifying party shall not
relieve such indemnifying party from any liability that it may have
under this Section 6 except to the extent that it has been prejudiced
in any material respect by such failure or from any liability which it
may otherwise have). In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the
commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party,
26
to assume the defense of such action with counsel satisfactory to such
indemnified party. Notwithstanding the foregoing, the indemnified party
or parties shall have the right to employ its or their own counsel in
any such action, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action,
(ii) the indemnifying parties shall not have employed counsel to take
charge of the defense of such action within a reasonable time after
notice of commencement of the action, or (iii) the named parties to
such action (including any impleaded parties) include such indemnified
party and the indemnifying parties (or such indemnifying parties have
assumed the defense of such action), and such indemnified party or
parties shall have reasonably concluded that there may be defenses
available to it or them that are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of
which events such reasonable fees and expenses of counsel shall be
borne by the indemnifying parties. In no event shall the indemnifying
party be liable for the fees and expenses of more than one counsel
(together with appropriate local counsel) at any time for all
indemnified parties in connection with any one action or separate but
substantially similar or related actions arising in the same
jurisdiction out of the same general allegations or circumstances.
Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim
or action effected without its written consent; provided, however, that
such consent was not unreasonably withheld.
7. CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6 of this
Agreement is for any reason held to be unavailable from the indemnifying party,
or is insufficient to hold harmless a party indemnified under Section 6 of this
Agreement, the Issuer, Parent and the Initial Purchasers shall contribute to the
amount paid or payable by such indemnified party as a result of such aggregate
Losses of the nature contemplated by such indemnification provision (but after
deducting in the case of Losses suffered by the indemnifying party, any
contribution received by the indemnifying party from persons other than the
indemnified party who may also be liable for contribution, including persons who
control the indemnified party within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act) to which the Issuer, Parent and the Initial
Purchasers may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Issuer and Parent, on the one hand, and the
Initial Purchasers, on the other hand, from the offering of the Original Notes
or, if such
27
allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in paragraph (c) of this Section 8 and having been prejudiced in any
material respect by the absence of such notice, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Issuer and Parent, on the one hand, and the Initial
Purchasers, on the other hand, in connection with the statements or omissions
that resulted in such Losses, as well as any other relevant equitable
considerations. The relative benefits received by the Issuer and Parent, on the
one hand, and the Initial Purchasers, on the other hand, shall be deemed to be
in the same proportion as (x) the total proceeds from the offering of Original
Notes (net of discounts and commissions but before deducting expenses) received
by the Issuer and Parent, and (y) the total discounts and commissions received
by the Initial Purchasers as set forth in the table on the cover page of the
Offering Memorandum. The relative fault of the Issuer and Parent, on the one
hand, and the Initial Purchasers, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Issuer, Parent or the Initial Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or alleged
statement or omission.
The Issuer, Parent 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 or by any other method of allocation that does not take
into account the equitable considerations referred to above. Notwithstanding the
provisions of this Section 7, (i) in no case shall the Initial Purchasers be
required to contribute any amount in excess of the amount by which the total
discount and commissions applicable to the Original Notes pursuant to this
Agreement exceeds the amount of any damages that the Initial Purchasers have
otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person, if
any, who controls the Initial Purchasers within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as the Initial Purchasers, and each person, if any, who controls
the Issuer and Parent within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as the
Issuer and Parent, subject in each case to clauses (i) and (ii) of this Section
7. Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim for
contribution may be made against another party or parties under this Section 7,
28
notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 7 or otherwise, except to the extent that it has been
prejudiced in any material respect by such failure; provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under Section 6 for purposes of indemnification. Anything in this
section to the contrary notwithstanding, no party shall be liable for
contribution with respect to any action or claim settled without its written
consent, provided, however, that such written consent was not unreasonably
withheld.
8. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The obligations of
the Initial Purchasers to purchase and pay for the Original Notes, as provided
for in this Agreement, shall be subject to satisfaction of the following
conditions prior to or concurrently with such purchase:
(a) All of the representations and warranties of the Issuer and Parent
contained in this Agreement shall be true and correct, or true and
correct in all material respects where such representations and
warranties are not qualified by materiality or Material Adverse Effect,
on the date of this Agreement and, in each case after giving effect to
the Merger and the transactions contemplated thereby, on the Closing
Date, except that if a representation and warranty is made as of a
specific date, and such date is expressly referred to therein, such
representation and warranty shall be true and correct (or true and
correct in all material respects, as applicable) as of such date. The
Issuer and Parent shall have performed or complied with all of the
agreements contained in this Agreement and required to be performed or
complied with by them at or prior to the Closing Date.
(b) The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchasers not later than 5:00 p.m., New
York City time, on the day following the date of this Agreement or at
such later date and time as the Initial Purchasers may agree. No stop
order suspending the qualification or exemption from qualification of
the Original Notes in any jurisdiction shall have been issued and no
proceeding for that purpose shall have been commenced or shall be
pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency that would, as of the Closing Date, prevent the issuance of the
Original Notes or consummation of the Exchange Offer; except as
disclosed in the Offering Memorandum, no action, suit or
29
proceeding shall have been commenced and be pending against or
affecting or, to the best knowledge of the Issuer and Parent,
threatened against the Issuer, the Company, Parent and/or any
Subsidiary before any court or arbitrator or any governmental body,
agency or official that, if adversely determined, would reasonably be
expected to have a Material Adverse Effect; and no stop order
preventing the use of the Offering Memorandum, or any amendment or
supplement thereto, or any order asserting that any of the transactions
contemplated by this Agreement are subject to the registration
requirements of the Act shall have been issued.
(d) As of November 30, 1997, neither, the Company, nor any Subsidiary
had any material liabilities or obligations, direct or contingent, that
were not set forth in the Company's consolidated balance sheet as of
November 30, 1997 or in the notes thereto set forth in the Offering
Memorandum. Since November 30, 1997, except as set forth or
contemplated in the Offering Memorandum, (a) none of the Issuer, the
Company, Parent or any Subsidiary has (1) incurred any liabilities or
obligations, direct or contingent, that would reasonably be expected to
have a Material Adverse Effect, or (2) entered into any material
transaction not in the ordinary course of business, (b) there has not
been any event or development in respect of the business or condition
(financial or other) of the Company and its Subsidiaries that, either
individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect and (c) there has been no dividend or
distribution of any kind declared, paid or made by the Company or any
Subsidiary on any class of their capital stock.
(e) The Initial Purchasers shall have received certificates, dated the
Closing Date, signed by two authorized officers of each of the Issuer
and Parent confirming, as of the Closing Date, the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 8.
(f) The Initial Purchasers shall have received on the Closing Date an
opinion dated the Closing Date, addressed to the Initial Purchasers, of
Howard, Darby & Levin, counsel to the Issuer, the Guarantors and the
Company, in form and substance reasonably satisfactory to the Initial
Purchasers and counsel to the Initial Purchasers.
(g) The Initial Purchasers shall have received on the Closing Date an
opinion (satisfactory in form and substance to the Initial Purchasers)
dated the Closing Date of Davis Polk & Wardwell, special counsel to the
Initial Purchasers, covering such matters as are customarily covered in
such opinions.
30
In addition, such counsel shall state that they have
participated in discussions with your representatives, representatives
of the Issuer and the Guarantors and their counsel and independent
public accountants concerning the preparation of the Offering
Memorandum. Such counsel shall state that, although they are not
passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of any of the statements in the Offering
Memorandum, on the basis of the foregoing (relying as to materiality to
a large extent upon officers or other representatives of the Issuer and
the Company and upon your representations), no facts have come to their
attention that lead such counsel to believe that the Offering
Memorandum (other than the financial statements and other financial and
statistical data contained therein as to which such counsel need
express no belief), on the date of such Offering Memorandum and as of
the date of the time of purchase, contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(h) Prior to the execution of this Agreement, the Initial Purchasers
shall have received a "comfort letter" from each of KPMG Peat Marwick
LLP and Deloitte & Touche LLP, independent public accountants for the
Company, dated as of the date of this Agreement, addressed to the
Initial Purchasers and in form and substance satisfactory to the
Initial Purchasers and counsel to the Initial Purchasers. In addition,
as of the Closing Date, the Initial Purchasers shall have received a
"bring-down comfort letter" from Deloitte & Touche LLP in form and
substance satisfactory to the Initial Purchasers and counsel to the
Initial Purchasers covering the same items and matters as covered in
their "comfort letter" but as of a date that is not more than three
days prior to the date thereof and any changes and additions to the
Preliminary Offering Memorandum that were made producing the Offering
Memorandum.
(i) The Issuer and each of the Guarantors shall have entered into the
Notes Indenture and the Initial Purchasers shall have received copies,
conformed as executed, thereof.
(j) The Issuer shall have entered into the Registration Rights
Agreement and the Initial Purchasers shall have received counterparts,
conformed as executed, thereof.
31
(k) The Issuer and each of the Guarantors shall have entered into the
Credit Agreement, and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof.
(l) The Initial Purchasers shall have received on the Closing Date a
certificate from the Company dated the Closing Date as to the solvency
of the Company and its Subsidiaries, addressed to the Initial
Purchasers and to the lenders in connection with the Issuer and
Guarantors entering into the Credit Agreement.
(m) Simultaneously with the purchase by the Initial Purchasers of the
Original Notes under this Agreement, the Initial Purchasers shall have
consummated the Preferred Stock Offering.
(n) Prior to or simultaneously with the closing of the transactions
contemplated by this Agreement, the Acquisition shall have been
consummated or will be consummated and the Issuer shall have been
merged into, or on the Closing Date will be merged into, the Company.
(o) The Initial Purchasers shall have been furnished with copies of
such documents as they may reasonably request and all closing documents
from the closings of the transactions contemplated hereby.
(p) Davis Polk & Wardwell, counsel to the Initial Purchasers, shall
have been furnished with such documents as they may reasonably request
to enable them to review or pass upon the matters referred to in this
Section 8 and in order to evidence the accuracy, completeness or
satisfaction in all material respects of any of the representations,
warranties or conditions contained in this Agreement.
(q) The Original Notes shall be eligible for trading in the PORTAL
market upon issuance.
(r) The Notes shall have initially been assigned ratings of "B-" and
"B3" by Standard & Poor's Rating Services and Moody's Investors
Service, Inc., respectively, and no such rating shall have been
downgraded or placed on any "watch list" for possible downgrading as of
or prior to the Closing Date.
(s) All agreements set forth in the representation letter of the
Issuer to DTC relating to the approval of the Notes by DTC for
"book-entry" transfer shall have been complied with.
32
If any of the conditions specified in this Section 8 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Initial Purchasers on notice to the Issuer at
any time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party. Notwithstanding any such termination,
the provisions of Sections 4(f), 6, 7, 10, 11(d) and 14 shall remain in effect.
The Issuer's obligation under this Agreement to sell the Original Notes
to the Initial Purchasers on the Closing Date is subject to the Initial
Purchasers purchasing and paying for all of the Original Notes and the accuracy
of, and compliance with, the representations and warranties and agreements in
Section 5(b).
9. INITIAL PURCHASERS' INFORMATION. The Issuer, Parent and the
Initial Purchasers severally acknowledge that the statements with respect to the
offer and sale of the Original Notes set forth in (i) the last paragraph of the
cover page, (ii) the first paragraph of page 3 and (iii) in the second, fourth,
and fifth paragraph under the caption "Plan of Distribution", all in the
Offering Memorandum constitute the only information furnished in writing by the
Initial Purchasers expressly for use in the Preliminary Offering Memorandum or
the Offering Memorandum.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations
and warranties, covenants and agreements contained in this Agreement, including
the agreements contained in Sections 4(f) and 11(d), the indemnity agreements
contained in Section 6 and the contribution agreements contained in Section 7
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Initial Purchasers or any controlling
person thereof or by or on behalf of the Issuer, Parent or any controlling
person of any thereof, and shall survive delivery of and payment for the
Original Notes to and by the Initial Purchasers. The agreements contained in
Sections 4(f), 6, 7, 11(d) and 14 shall survive the termination of this
Agreement, including pursuant to Section 11.
11. EFFECTIVE DATE OF AGREEMENT; TERMINATION. (a) This
Agreement shall become effective upon execution and delivery of a counterpart
hereof by each of the parties hereto.
(b) The Initial Purchasers shall have the right to terminate this
Agreement at any time prior to the Closing Date by notice to the Issuer
from the Initial Purchasers, without liability (other than with respect
to Sections 6 and 7) on the Initial Purchasers' part to the Issuer if,
on or prior to such date, (i) the Issuer and Parent shall have failed,
refused or been
33
unable to perform in any material respect any agreement on its part to
be performed under this Agreement when and as required, (ii) any other
condition to the obligations of the Initial Purchasers under this
Agreement to be fulfilled by the Issuer or any of the Guarantors
pursuant to Section 8 is not fulfilled when and as required in any
material respect, (iii) trading in securities generally on the New York
Stock Exchange or the American Stock Exchange shall have been suspended
or materially limited, or minimum prices shall have been established on
such exchange by the Commission, or by such exchange or other
regulatory body or governmental authority having jurisdiction, (iv) a
general banking moratorium shall have been declared by federal, New
York or Ohio authorities or (v) there is an outbreak or escalation of
armed hostilities involving the United States on or after the date of
this Agreement, or if there has been a declaration by the United States
of a national emergency or war or other national or international
calamity or crisis (economic, political, financial or otherwise) which
affects the U.S. and international markets, making it, in the Initial
Purchasers' judgment, impracticable to proceed with the offering or
delivery of the Original Notes on the terms and in the manner
contemplated in the Offering Memorandum.
(c) Any notice of termination pursuant to this Section 11 shall be
given at the address specified in Section 12 below by telephone, telex,
telephonic facsimile or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to clause (i) or
(ii) of Section 11(b), or if the sale of the Notes provided for in this
Agreement is not consummated because the Issuer or Parent to satisfy
any condition to the obligations of the Initial Purchasers set forth in
this Agreement to be satisfied on their part or because of any refusal,
inability or failure on the part of either of the Issuer or Parent to
perform any agreement in this Agreement or comply with any provision of
this Agreement, the Issuer will, subject to demand by the Initial
Purchasers, reimburse the Initial Purchasers for all of their
reasonable out-of-pocket expenses (including the fees and expenses of
the Initial Purchasers' counsel) incurred in connection with this
Agreement.
12. NOTICE. All communications with respect to or under this
Agreement, except as may be otherwise specifically provided in this Agreement,
shall be in writing and, if sent to the Initial Purchasers, shall be mailed,
delivered, or telexed, telegraphed or telecopied and confirmed in writing to SBC
Warburg Dillon Read Inc., 535 Madison Avenue, New York, New York 10022
(telephone: (212) 906-7000), Attention: Syndicate Department, telecopy number:
203-719-1075; and if sent to the Issuer or Parent, shall be mailed, delivered or
telexed,
34
telegraphed or telecopied and confirmed in writing to Eagle-Picher Industries,
Inc., 250 East Fifth Street, Cincinnati, Ohio 45202 (telephone: (513) 721-7010,
Telecopy (513) 721-2341, Attention: President).
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged by telecopier machine, if telecopied; and one
business day after being timely delivered to a next-day air courier.
13. PARTIES. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Initial Purchasers, the Issuer and Parent and the
controlling persons and agents referred to in Sections 6 and 7, and their
respective successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained. The
term "successors and assigns" shall not include a purchaser, in its capacity as
such, of Notes from the Initial Purchasers.
14. CONSTRUCTION. This Agreement shall be construed in accordance with
the internal laws of the State of New York (without giving effect to any
provisions thereof relating to conflicts of law) and each of the parties hereto
consent to the jurisdiction of the courts of the State of New York. Each of the
parties hereto agrees to submit to the jurisdiction of the courts of the State
of New York and the U.S. federal courts sitting in the City of New York for the
purposes of any suit, action or proceeding arising out of or relating to this
Agreement. Nothing herein shall affect the right to serve process in any other
manner permitted by law or shall limit the right of the Initial Purchasers to
bring proceedings against the Company in the courts of any other jurisdiction.
15. CAPTIONS. The captions included in this Agreement are included
solely for convenience of reference and are not to be considered a part of this
Agreement.
16. COUNTERPARTS. This Agreement may be executed in various
counterparts that together shall constitute one and the same instrument.
35
If the foregoing Notes Purchase Agreement correctly sets forth the
understanding among the Issuer, Parent and the Initial Purchasers, please so
indicate in the space provided below for the purpose, whereupon this letter and
your acceptance shall constitute a binding agreement among the Issuer, Parent
and the Initial Purchasers.
E-P ACQUISITION, INC.
By: /s/ Joel P. Wyler
-------------------------------
Name: Joel P. Wyler
Title: Chairman and President
EAGLE-PICHER HOLDINGS, INC.
By: /s/ Joel P. Wyler
-------------------------------
Name: Joel P. Wyler
Title: Chairman and President
Confirmed and accepted as of
the date first above written:
SBC WARBURG DILLON READ INC.
By: /s/ John G. Brim
---------------------------------------
Name: John G. Brim
Title: Managing Director
ABN AMRO INCORPORATED
By: /s/ Linda A. Dawson
---------------------------------------
Name: Linda A. Dawson
Title: Managing Director
SCHEDULE I
Principal Amount of
Initial Purchaser Original Notes
- ------------------ ------------------------
SBC Warburg Dillon Read Inc..................................... $200,903,282
ABN AMRO Incorporated........................................... 19,096,718
-------------
Total $220,000,000
=============
SCHEDULE A
SUBSIDIARIES
Jurisdiction
Name Type of Entity Of Incorporation Equity Ownership and Direct Owner
- -------------------------------------------------------------------------------------------------------------------------
1. DOMESTIC OPERATING SUBSIDIARIES
Daisy Parts, Inc. corporation Michigan Eagle-Picher Industries, Inc. - 100%
Eagle-Picher Development Company, Inc. corporation Dealware Eagle-Picher Industries, Inc. - 100%
Eagle-Picher Far East, Inc. corporation Dealware Eagle-Picher Industries, Inc. - 100%
Eagle-Picher Fluid Systems, Inc. corporation Michigan Eagle-Picher Industries, Inc. - 100%
Eagle-Picher Minerals, Inc. corporation Nevada Eagle-Picher Industries, Inc. - 100%
Hillsdale Tool & Manufacturing Co. corporation Michigan Eagle-Picher Industries, Inc. - 100%
Michigan Automotive Research Corporation corporation Michigan Eagle-Picher Development Company, Inc. - 100%
2. FOREIGN SUBSIDIARIES
Eagle-Picher Automotive GmbH Gesellschaft mit Germany Eagle-Picher Industries, Europe B.V. - 100%
Beschraeckter
Haftung (company
with limited
liability)
Eagle-Picher Espana, S.A. Sociedad Anonima Spain Eagle-Picher Industries, Europe B.V. - 100%
(joint stock
company)
Eagle-Picher Fluid Systems, Ltd. private limited England & Wales Eagle-Picher UK Limited - 100%
company
Eagle-Picher Hillsdale Limited private limited England & Wales Eagle-Picher UK Limited - 100%
company
Eagle-Picher Industries Europe B.V. Besloten Netherlands Eagle-Picher Industries Inc - 100%
Venwootschap
(private company
with limited
liability)
Jurisdiction
Name Type Of Entity Of Incorporation Equity Ownership and Direct Owner
- ------------------------------- -------------------- ---------------- ----------------------------------
Eagle-Pitcher Technologies GmbH Gesellschaft mit Germany Eagle-Picher Wolverine GmbH - 100%
beschraenkter Haftung
(company with limited
liability)
Eagle-Picher Industries of Canada corporation Ontario, Canada Eagle-Picher Industries, Inc. - 100%
Limited
Eagle-Picher Minerals International Societe a Responsabilite France Eagle-Picher Minerals, Inc. - 100%
S.A.R.L. Limite (limited liability
company)
Eagle-Picher UK Limited private limited company England & Wales Eagle-Picher Industries Europe B.V. - 100%
Eagle-Picher Wolverine GmbH private limited company Germany Eagle-Picher Industries Europe B.V.
- 99.95% (DM 3,798,000); A Ruijssenaars
in trust for Eagle-Picher Industries, Inc.
- .05% (DM 2,000)
Eagle-Picher, Inc. foreign sales corporation Virgin Islands Eagle-Picher Industries, Inc. - 100%
EPTEC, S.A. de C.V. Sociedad Anonima de Mexico Eagle-Picher Industries, Inc. (28,582,138
Capital Variable shares) & Hillsdale Tool & Manufacturing
(corporation with Co. (1 share)
variable capital)
Equipos de Acuna, S.A. de C.V. Sociedad Anonima de Mexico Eagle-Picher Industries, Inc. (999 shares
Capital Variable of Series A, 19,794,801 shares of Series
(corporation with B, 1,508,248 shares of Series C; James A.
variable capital) Ralston - 1 share of Series A
United Minerals GmbH & Co. KG Kommandit Gesellschaft Germany Eagle-Picher Minerals International
(limited partnership) S.A.R.L. - 100%
United Minerals Verwaltungs-und Gesellschaft mit Germany Eagle-Picher Minerals International
Beteiligungs GmbH beschraenkter Haftung S.A.R.L - 100%
(company with limited
liability)
3. IMMATERIAL SUBSIDIARIES
Fabricon Corporation corporation Michigan Eagle-Picher Industries, Inc. - 100%
Fabricon Products Corporation of corporation Pennsylvania Fabricon Corporation - 100%
Pennsylvania
Jurisdiction
Name Type Of Entity Of Incorporation Equity Ownership and Direct Owner
- ---------------------------------- -------------------- ---------------- ----------------------------------
Ross Aluminum Foundries, Inc. corporation Ohio Eagle-Picher Industries, Inc. - 100%
Wolverine Gasket and Manufacturing corporation Michigan Eagle-Picher Industries, Inc. - 100%
Company
Cincinnati Industrial Machinery corporation Ohio Eagle-Picher Industries, Inc. - 100%
Sales Company