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EXHIBIT 4.2
EXECUTION COPY
NC MERGER COMPANY
$150,000,000
11-1/8 % Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
April 23, 1997
CHASE SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
c/o Chase Securities Inc.
270 Park Avenue, 4th floor
New York, New York 10017
Ladies and Gentlemen:
NC Merger Company, a Wisconsin corporation (the "Company"), proposes
to issue and sell $150,000,000 aggregate principal amount of its 11-1/8% Senior
Subordinated Notes due 2007 (the "Notes"). The Notes will be issued pursuant to
an Indenture to be dated as of April 30, 1997 (the "Indenture") between the
Company and United States Trust Company of New York, as trustee (the "Trustee").
Immediately following the consummation of the sale of the Notes hereunder and
pursuant to the Agreement and Plan of Reorganization dated November 20, 1996, as
amended (the "Merger Agreement"), among NFC Castings, Inc., a Delaware
corporation ("Holdings"), the Company and Neenah Corporation, a Wisconsin
corporation ("Neenah"), the Company will merge (the "Merger") with and into
Neenah, with Neenah being the surviving corporation. Upon consummation of the
Merger, Neenah will assume, by supplemental indenture (the "Supplemental
Indenture"), all of the obligations of the Company under the Indenture and the
Notes, Neenah will become the primary obligor on the Notes and the Notes will be
guaranteed on an unsecured senior subordinated basis (the "Guarantees", and
together with the Notes, the "Securities") by the principal operating
subsidiaries of Neenah, Neenah Foundry Company, Hartley Controls Corporation and
Neenah Transport, Inc. (collectively, the "Guarantors"). The Company confirms
its agreement with Chase Securities Inc. ("CSI") and Morgan Stanley & Co.
Incorporated (together with CSI, the "Initial Purchasers") concerning the
purchase of the Securities from the Company by the several Initial Purchasers.
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The Securities will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon an exemption therefrom. The Company has
prepared a preliminary offering memorandum dated April 4, 1997 (the "Preliminary
Offering Memorandum") and will prepare an offering memorandum dated the date
hereof (the "Offering Memorandum") setting forth information concerning the
Company, Neenah, the Guarantors and the Securities. Copies of the Preliminary
Offering Memorandum have been, and copies of the Offering Memorandum will be,
delivered by the Company to the Initial Purchasers pursuant to the terms of this
Agreement. Any references herein to the Preliminary Offering Memorandum and the
Offering Memorandum shall be deemed to include all amendments and supplements
thereto, unless otherwise noted. The Company hereby confirms that it has
authorized the use of the Preliminary Offering Memorandum and the Offering
Memorandum in connection with the offering and resale of the Securities by the
Initial Purchasers in accordance with Section 2.
Holders of the Securities (including the Initial Purchasers and
their direct and indirect transferees) will be entitled to the benefits of an
Exchange and Registration Rights Agreement, substantially in the form attached
hereto as Annex A (the "Registration Rights Agreement"), pursuant to which
Neenah and the Guarantors will agree to file with the Securities and Exchange
Commission (the "Commission") (i) a registration statement under the Securities
Act (the "Exchange Offer Registration Statement") registering an issue of senior
subordinated notes of the Company (the "Exchange Securities") which are
identical in all material respects to the Securities (except that the Exchange
Securities will not contain terms with respect to transfer restrictions) and
(ii) under certain circumstances, a shelf registration statement pursuant to
Rule 415 under the Securities Act (the "Shelf Registration Statement").
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Offering Memorandum.
1. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to, and agrees with, the several Initial
Purchasers on and as of the date hereof and the Closing Date (as defined in
Section 3) that:
(a) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, did not, and on the Closing Date
the Offering Memorandum will not, contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided
that the Company makes no representation or warranty as to information
contained in or omitted from the Preliminary Offering Memorandum or the
Offering Memorandum in reliance upon and in conformity with written
information relating to the Initial Purchasers furnished to the Company by
or on behalf of any Initial Purchaser specifically for use therein (the
"Initial Purchasers' Information").
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(b) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, contains all of the information
that, if requested by a prospective purchaser of the Securities, would be
required to be provided to such prospective purchaser pursuant to Rule
144A(d)(4) under the Securities Act.
(c) Assuming the accuracy of the representations and warranties of
the Initial Purchasers contained in Section 2 and their compliance with
the agreements set forth therein, it is not necessary, in connection with
the issuance and sale of the Securities to the Initial Purchasers and the
offer, resale and delivery of the Securities by the Initial Purchasers in
the manner contemplated by this Agreement and the Offering Memorandum, to
register the Securities under the Securities Act or to qualify the
Indenture under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
(d) Holdings has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
the Company, Neenah and each of Neenah's subsidiaries have been duly
incorporated and are validly existing as corporations under the laws of
the State of Wisconsin; and each of the Company, Holdings, Neenah and each
of Neenah's subsidiaries are duly qualified to do business and are in good
standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged and to take the actions
necessary to consummate each of the transactions contemplated by this
Agreement and the Offering Memorandum (the "Transactions"), except where
the failure to so qualify or have such power or authority would not,
singularly or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), results of operations, business or
prospects of Neenah and its subsidiaries taken as a whole (a "Material
Adverse Effect").
(e) Neenah has a capitalization as set forth in the Offering
Memorandum under the heading "Capitalization"; all of the outstanding
shares of capital stock of Holdings, the Company, Neenah and each of
Neenah's Subsidiaries have been, and upon the consummation of the
Transactions will be, duly and validly authorized and issued and are, and
upon the consummation of the Transactions will be, fully paid and
non-assessable, except as set forth in Section 180.0622(2)(b) of the
Wisconsin statutes, as judicially interpreted; and upon the consummation
of the Transactions will conform in all material respects to the
description thereof contained in the Offering Memorandum. Upon
consummation of the Transactions, all of the outstanding shares of capital
stock of Neenah and its subsidiaries will be owned directly or indirectly
by Holdings, free and clear of any lien, charge, encumbrance, security
interest, restriction
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upon voting or transfer or any other claim of any third party, other than
liens arising under the Senior Bank Facilities.
(f) Each of the Company, Neenah and the Guarantors have full right,
power and authority to execute and deliver any of this Agreement, the
Neenah Letter Agreement (as defined in Section 5(q) hereof), the
Indenture, the Supplemental Indenture, the Registration Rights Agreement,
the Securities and the Merger Agreement (collectively, the "Transaction
Documents") to which it is or will be a party and to perform its
respective obligations hereunder and thereunder; and all corporate action
required to be taken for the due and proper authorization, execution and
delivery of each of the Transaction Documents and the consummation of the
transactions contemplated thereby have been duly and validly taken.
(g) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding agreement of
the Company (and has been or will be duly authorized by Neenah and the
Guarantors and will be the valid and legally binding agreement of Neenah
and each of the Guarantors upon the execution and delivery of the Neenah
Letter Agreement by each party thereto).
(h) The Registration Rights Agreement has been or will be duly
authorized by Neenah and each of the Guarantors and, when duly executed
and delivered in accordance with its terms by Neenah, the Guarantors and
the Initial Purchasers, will constitute a valid and legally binding
agreement of Neenah and each of the Guarantors, enforceable against Neenah
and each of the Guarantors in accordance with its terms, except to the
extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at
law).
(i) The Indenture has been duly authorized by the Company and, when
duly executed and delivered in accordance with its terms by the Company
and the Trustee, will constitute a valid and legally binding agreement of
the Company (and upon the execution and delivery of the Supplemental
Indenture by each party thereto, of Neenah, as primary obligor, and of the
Guarantors, as note guarantors) enforceable against the Company (and
Neenah and each of the Guarantors, as aforesaid) in accordance with its
terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and by general equitable principles (whether considered in a proceeding in
equity or at law). On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust
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Indenture Act and the rules and regulations of the Commission applicable
to an indenture which is qualified thereunder.
(j) The Supplemental Indenture has been or will be duly authorized
by Neenah and each of the Guarantors and, when duly executed and delivered
in accordance with the terms thereof by each party thereto, will
constitute the valid and legally binding agreement of Neenah and the
Guarantors, enforceable against each of them in accordance with its terms,
except to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights generally and by
general equitable principles (whether considered in a proceeding in equity
or at law).
(k) The Neenah Letter Agreement has been or will be duly authorized
by Neenah and each of the Guarantors and when duly executed and delivered
in accordance with the terms thereof by each party thereto, will
constitute the valid and legally binding agreement of Neenah and each of
the Guarantors, enforceable against Neenah and each of the Guarantors in
accordance with its terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
(l) The Securities have been duly authorized by the Company and,
when duly executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided herein, will be duly and validly issued
and outstanding and will constitute valid and legally binding obligations
of the Company (and upon execution and delivery of the Supplemental
Indenture by each party thereto, of Neenah, as primary obligor, and of
each of the Guarantors, as note guarantors) entitled to the benefits of
the Indenture and enforceable against the Company (and Neenah and each of
the Guarantors, as aforesaid) in accordance with their terms, except to
the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights generally and by
general equitable principles (whether considered in a proceeding in equity
or at law).
(m) The Merger Agreement has been duly authorized, executed and
delivered by the Company, Holdings and Neenah and constitutes a valid and
legally binding agreement of the Company, Holdings and Neenah enforceable
against each of them in accordance with its terms, except to the extent
that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at
law).
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(n) Each Transaction Document conforms in all material respects to
the description thereof contained in the Offering Memorandum.
(o) The execution, delivery and performance by the Company, Neenah
and each of the Guarantors of each of the Transaction Documents to which
it is or will be a party, the issuance, authentication, sale and delivery
of the Securities and compliance by the Company, Neenah and each of the
Guarantors with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents (i) will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company,
Neenah or any of Neenah's subsidiaries pursuant to, any material
indenture, mortgage, deed of trust, loan agreement or other material
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 respective properties or assets are
subject, except where such conflict, breach, violation or default would
not (A) result in a Material Adverse Effect on the Company, Neenah or any
of Neenah's subsidiaries, or (B) have a material adverse effect on the
Company's ability to perform its obligations under any of the Transaction
Documents to which it is a party, and (ii) such actions will not result in
any violation of (A) the provisions of the charter or by-laws of the
Company, Neenah or any of Neenah's subsidiaries or (B) to the Company's
best knowledge, any statute or any judgment, order, decree, rule or
regulation of any court or arbitrator or governmental agency or body
having jurisdiction over the Company, Neenah or any of Neenah's
subsidiaries or any of their properties or assets; and no consent,
approval, authorization or order of, or filing or registration with, any
such court or arbitrator or governmental agency or body under any such
statute, judgment, order, decree, rule or regulation is required for the
execution, delivery and performance by each of the Company, Neenah and
each of the Guarantors of each of the Transaction Documents to which it is
or will be a party, the issuance, authentication, sale and delivery of the
Securities and compliance by the Company, Neenah and the Guarantors (as
applicable) with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for such
consents, approvals, authorizations, filings, registrations or
qualifications (i) which shall have been obtained or made prior to the
Closing Date and (ii) as may be required to be obtained or made under the
Securities Act and applicable state securities laws as provided in the
Registration Rights Agreement.
(p) Ernst & Young LLP are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning of
Rule 101 of the Code of Professional Conduct of the American Institute of
Certified Public Accountants ("AICPA") and its interpretations and rulings
thereunder. The historical financial statements (including the related
notes) contained in the Offering Memorandum comply in all material
respects with the requirements
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applicable to a registration statement on Form S-1 under the Securities
Act (except that certain consolidated financial statement schedules and
net income per common share data are omitted); such financial statements
have been prepared in accordance with generally accepted accounting
principles consis tently applied throughout the periods covered thereby
and fairly present the financial position of the entities purported to be
covered thereby at the re spective dates indicated and the results of
their operations and their cash flows for the respective periods
indicated; and the financial information contained in the Offering
Memorandum under the headings "Summary--Summary Consolidated Financial and
Other Data", "Capitalization", "Selected Consolidated Financial and Other
Data", "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and "Management--Compensation of Executive
Officers" are derived from the accounting records of the Company and its
subsidiaries and fairly present the information purported to be shown
thereby. The pro forma financial information contained in the Offering
Memorandum has been prepared on a basis consistent with the histori cal
financial statements contained in the Offering Memorandum (except for the
pro forma adjustments specified therein), includes all material
adjustments to the historical financial information required by Rule 11-02
of Regulation S-X under the Securities Act and the Exchange Act to reflect
the transactions described in the Offering Memorandum, gives effect to
assumptions made on a reasonable basis and fairly presents the historical
and proposed transactions contemplated by the Offering Memorandum and the
Transaction Documents. The other historical financial and statistical
information and data included in the Offering Memorandum are, in all
material respects, fairly presented.
(q) There are no legal or governmental proceedings pending to which
the Company, Neenah or any of Neenah's subsidiaries is a party or of which
any of their respective property or assets is the subject which,
singularly or in the aggregate, if determined adversely to the Company,
Neenah or any of Neenah's subsidiaries, could reasonably be expected to
have a Material Adverse Effect; and to the best knowledge of the Company,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(r) To the best knowledge of the Company, no action has been taken
and no statute, rule, regulation or order has been enacted, adopted or
issued by any governmental agency or body which prevents the issuance of
the Securities or suspends the sale of the Securities in any jurisdiction;
to the best knowledge of the Company, no injunction, restraining order or
order of any nature by any federal or state court of competent
jurisdiction has been issued with respect to the Company, Neenah or any of
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Neenah's subsidiaries which would prevent or suspend the issuance or sale
of the Securities or the use of the Preliminary Offering Memorandum or the
Offering Memorandum in any jurisdiction; no action, suit or proceeding is
pending against or, to the best knowledge of the Company, threatened
against or affecting the Company, Neenah or any of Neenah's subsidiaries
before any court or arbitrator or any governmental agency, body or
official, domestic or foreign, which could reasonably be expected to
interfere with or adversely affect the issuance of the Securities or in
any manner draw into question the validity or enforceability of any of the
Transaction Documents or any action taken or to be taken pursuant thereto;
and the Company has complied with any and all requests by any securities
authority in any jurisdiction for additional information to be included in
the Preliminary Offering Memorandum and the Offering Memorandum.
(s) None of the Company, Holdings, Neenah or any of Neenah's
subsidiaries is (i) in violation of its charter or by-laws, (ii) in
default in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or
to which any of its properties or assets are subject or (iii) in violation
in any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its properties or assets may be
subject, except for any violation or default under clauses (ii) or (iii)
that would not have a Material Adverse Effect.
(t) Neenah and each of Neenah's subsidiaries possess all material
licenses, certificates, authorizations and permits issued by, and have
made all declarations and filings with, the appropriate federal, state or
foreign regulatory agencies or bodies which are necessary or desirable for
the ownership of their respective properties or the conduct of their
respective businesses as described in the Offering Memorandum, except
where the failure to possess or make the same would not, singularly or in
the aggregate, have a Material Adverse Effect, and none of the Company,
Neenah or any of Neenah's subsidiaries has received notification of any
revocation or modification of any such license, certificate, authorization
or permit or has any reason to believe that any such license, certificate,
authorization or permit will not be renewed in the ordinary course.
(u) Neenah and each of Neenah's subsidiaries have filed all federal,
state, local and foreign income and franchise tax returns required to be
filed through the date hereof and have paid all taxes due thereon, and no
tax deficiency has been determined adversely to Neenah or any of Neenah's
subsidiaries which has had (nor does the Company have any knowledge of any
tax deficiency which, if determined adversely to Neenah or any of Neenah's
subsidiaries, could reasonably be expected to have) a Material Adverse
Effect.
(v) None of the Company, Neenah or any of Neenah's subsidiaries is
(i) an "investment company" or a company "controlled by" an investment
company within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), and the rules and regulations of
the Commission
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thereunder or (ii) a "holding company" or a "subsidiary company" of a
holding company or an "affiliate" thereof within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(w) Neenah and each of Neenah's subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(x) Neenah and each of its subsidiaries have insurance covering
their respective properties, operations, personnel and businesses, which
insurance is in amounts and insures against such losses and risks as are
adequate to protect Neenah and its subsidiaries and their respective
businesses. Neither Neenah nor any of its subsidiaries has received notice
from any insurer or agent of such insurer that capital improvements or
other expenditures are required or necessary to be made in order to
continue such insurance.
(y) Neenah and each of its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses and know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of their
respective businesses; and the Company has no reason to believe that the
conduct of their respective businesses will conflict in any material
respect with, and Neenah and its subsidiaries have not received any notice
of any claim of conflict with, any such rights of others.
(z) Neenah and each of its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use,
all items of real and personal property which are material to the business
of Neenah and its subsidiaries, in each case free and clear of all liens
(other than liens arising under the Senior Bank Facilities), encumbrances,
claims and defects and imperfections of title except such as (i) do not
materially interfere with the use made and proposed to be made of such
property by Neenah and its subsidiaries or (ii) could not reasonably be
expected to have a Material Adverse Effect.
(aa) No material labor disturbance by or dispute with the employees
of Neenah or any of its subsidiaries exists or, to the best knowledge of
the Company, is contemplated or threatened.
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(bb) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")) or "accumulated funding deficiency" (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect to
any employee benefit plan of Neenah or any of its subsidiaries which could
reasonably be expected to have a Material Adverse Effect; each such
employee benefit plan is in compliance in all material respects with
applicable law, including ERISA and the Code; Neenah and each of its
subsidiaries have not incurred and do not expect to incur liability under
Title IV of ERISA with respect to the termination of, or withdrawal from,
any pension plan for which Neenah or any of its subsidiaries would have
any liability; and each such pension plan that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects
and nothing has occurred, whether by action or by failure to act, which
could reasonably be expected to cause the loss of such qualification.
(cc) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission or other release of any
kind of toxic or other wastes or other hazardous substances by, due to or
caused by Neenah or any of its subsidiaries (or, to the best knowledge of
the Company, any other entity (including any predecessor) for whose acts
or omissions the Company, Neenah or any of Neenah's subsidiaries is or
could reasonably be expected to be liable) upon any of the property now or
previously owned or leased by Neenah or any of its subsidiaries, or upon
any other property, in violation of any statute or any ordinance, rule,
regulation, order, judgment, decree or permit or which would, under any
statute or any ordinance, rule (including rule of common law), regulation,
order, judgment, decree or permit, give rise to any liability, except for
any violation or liability could not reasonably be expected to have,
singularly or in the aggregate with all such violations and liabilities, a
Material Adverse Effect; and there has been no disposal, discharge,
emission or other release of any kind onto such property or into the
environment surrounding such property of any toxic or other wastes or
other hazardous substances with respect to which the Company has
knowledge, except for any such disposal, discharge, emission or other
release of any kind which could not reasonably be expected to have,
singularly or in the aggregate with all such discharges and other
releases, a Material Adverse Effect.
(dd) Neither Neenah nor, to the best knowledge of the Company, any
director, officer, agent, employee or other person associated with or
acting on behalf of Neenah or any of its subsidiaries has (i) used any
corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; (ii) made any
direct or indirect unlawful payment to any
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foreign or domestic government official or employee from corporate funds;
(iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(ee) On and immediately after the Closing Date, Neenah (on a
consolidated basis, after giving effect to the issuance of the Securities
and to the other Transactions as described in the Offering Memorandum)
will be Solvent. As used in this paragraph, the term "Solvent" means, with
respect to a particular date, that on such date (i) the present fair
market value (or present fair saleable value) of the assets of Neenah is
not less than the total amount required to pay the probable liabilities of
Neenah on its total existing debts and liabilities (including contingent
liabilities) as they become absolute and matured, (ii) Neenah is able to
realize upon its assets and pay its debts and other liabilities,
contingent obligations and commitments as they mature and become due in
the normal course of business, (iii) assuming the sale of the Securities
as contemplated by this Agreement, the Neenah Letter Agreement and the
Offering Memorandum, Neenah is not incurring debts or liabilities beyond
its ability to pay as such debts and liabilities mature and (iv) Neenah is
not engaged in any business or transaction, and is not about to engage in
any business or transaction, for which its property would constitute
unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which Neenah is engaged. In
computing the amount of such contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount that, in the
light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
(ff) Except as described in the Offering Memorandum, there are no
outstanding subscriptions, rights, warrants, calls or options to acquire,
or instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of
capital stock of or other equity or other ownership interest in Holdings,
the Company, Neenah or any of Neenah's subsidiaries.
(gg) Neither Neenah nor any of its subsidiaries owns any "margin
securities" as that term is defined in Regulations G and U of the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board"), and
none of the proceeds of the sale of the Securities will be used, directly
or indirectly, for the purpose of purchasing or carrying any margin
security, for the purpose of reducing or retiring any indebtedness which
was originally incurred to purchase or carry any margin security or for
any other purpose which might cause any of the Securities to be considered
a "purpose credit" within the meanings of Regulation G, T, U or X of the
Federal Reserve Board.
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(hh) None of the Company, Neenah or any of Neenah's subsidiaries is
a party to any contract, agreement or understanding with any person that
would give rise to a valid claim against the Company, Neenah or the
Initial Purchasers for a brokerage commission, finder's fee or like
payment in connection with the offering and sale of the Securities.
(ii) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(jj) None of the Company, Neenah, any of their respective affiliates
or any person acting on behalf of any of them has engaged or will engage
in any directed selling efforts (as such term is defined in Regulation S
under the Securities Act ("Regulation S")), and all such persons have
complied and will comply with the offering restrictions requirement of
Regulation S to the extent applicable.
(kk) None of the Company, Neenah or any of their respective
affiliates has, directly or through any agent, sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any
security (as such term is defined in the Securities Act), which is or will
be integrated with the sale of the Securities in a manner that would
require registration of the Securities under the Securities Act.
(ll) None of the Company, Neenah or any of their respective
affiliates or any other person acting on behalf of any of them has
engaged, in connection with the offering of the Securities, in any form of
general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act.
(mm) There are no securities of the Company or Neenah registered
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or listed on a national securities exchange or quoted in a U.S.
automated inter-dealer quotation system.
(nn) Neither the Company nor Neenah has taken or will take, directly
or indirectly, any action prohibited by Regulation M under the Exchange
Act in connection with the offering of the Securities.
(oo) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in
the Preliminary Offering Memorandum or the Offering Memorandum has been
made or reaffirmed without a reasonable basis or has been disclosed other
than in good faith.
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(pp) None of Neenah or any of its subsidiaries does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Florida Statutes Section 517.075.
(qq) Since the date as of which information is given in the Offering
Memorandum, except as contemplated by the Transactions, (i) there has been
no material adverse change or any development involving a prospective
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs, management or business prospects of Neenah
or any of its subsidiaries, whether or not arising in the ordinary course
of business, (ii) neither Neenah nor any of the subsidiaries have incurred
any material liability or obligation, direct or contingent, other than in
the ordinary course of business, (iii) neither Neenah nor any of its
subsidiaries have entered into any material transaction other than in the
ordinary course of business and (iv) there has not been any change in the
capital stock or long-term debt of Neenah or any of its subsidiaries, or
any dividend or distribution of any kind declared, paid or made by Neenah
on any class of its capital stock.
(rr) The Company and Holdings have not conducted business prior to
the date hereof other than the transactions contemplated by this
Agreement.
2. Purchase and Resale of the Securities. (a) On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, the Company agrees to issue and sell to
each of the Initial Purchasers, severally and not jointly, and each of the
Initial Purchasers, severally and not jointly, agrees to purchase from the
Company, the principal amount of Securities set forth opposite the name of such
Initial Purchaser on Schedule 1 hereto at a purchase price equal to 97.00% of
the principal amount thereof. The Company shall not be obligated to deliver any
of the Securities except upon payment for all of the Securities to be purchased
as provided herein.
(b) The Initial Purchasers have advised the Company that they
propose to offer the Securities for resale upon the terms and subject to the
conditions set forth herein and in the Offering Memorandum. Each Initial
Purchaser, severally and not jointly, represents and warrants to, and agrees
with, the Company that (i) it is purchasing the Securities pursuant to a private
sale exempt from registration under the Securities Act, (ii) it has not
solicited offers for, or offered or sold, and will not solicit offers for, or
offer or sell, the Securities by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) of Regulation D under the
Securities Act ("Regulation D") or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act and (iii) it has
solicited and will solicit offers for the Securities only from, and has offered
or sold and will offer, sell or deliver the Securities, as part of its initial
offering, only to persons whom it reasonably believes to be qualified
institutional buyers ("Qualified Institutional Buyers") as defined in Rule 144A
under the Securities Act, or if any such person is buying for one or more
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institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to it that each such account is a
Qualified Institutional Buyer to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A and in each case, in
transactions in accordance with Rule 144A. In addition to the foregoing, each
Initial Purchaser acknowledges and agrees that the Company and, for purposes of
the opinions to be delivered to the Initial Purchasers pursuant to Sections 5(d)
and (e), counsel for the Company and for the Initial Purchasers, respectively,
may rely upon the accuracy of the representations and warranties of the Initial
Purchasers and their compliance with their agreements contained in this Section
2, and each Initial Purchaser hereby consents to such reliance.
(c) The Company acknowledges and agrees that the Initial Purchasers
may sell Securities to any affiliate of an Initial Purchaser and that any such
affiliate may sell Securities purchased by it to an Initial Purchaser.
3. Delivery of and Payment for the Securities. (a) Delivery of and
payment for the Securities shall be made at the offices of Cravath, Swaine &
Moore ("CSM"), New York, New York, or at such other place as shall be agreed
upon by the Initial Purchasers and the Company, at 10:00 A.M., New York City
time, on April 30, 1997, or at such other time or date, not later than seven
full business days thereafter, as shall be agreed upon by the Initial Purchasers
and the Company (such date and time of payment and delivery being referred to
herein as the "Closing Date").
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by wire or book-entry transfer of
same-day funds to such account or accounts as the Company shall specify prior to
the Closing Date or by such other means as the parties hereto shall agree prior
to the Closing Date against delivery to the Initial Purchasers of the
certificates evidencing the Notes. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligations of the Initial Purchasers hereunder. Upon delivery, the Notes
shall be in global form, registered in such names and in such denominations as
CSI on behalf of the Initial Purchasers shall have requested in writing not less
than two full business days prior to the Closing Date. The Company agrees to
make one or more global certificates evidencing the Notes available for
inspection by CSI on behalf of the Initial Purchasers in New York, New York at
least 24 hours prior to the Closing Date.
4. Further Agreements of the Company. The Company agrees with each
of the several Initial Purchasers:
(a) to advise the Initial Purchasers promptly and, if requested,
confirm such advice in writing, of the happening of any event which makes
any statement of a material fact made in the Offering Memorandum untrue or
which requires the making of any additions to or changes in the Offering
Memorandum (as amended or supplemented from time to time) in order to make
the statements
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therein, in the light of the circumstances under which they were made, not
misleading; to advise the Initial Purchasers promptly of any order
preventing or suspending the use of the Preliminary Offering Memorandum or
the Offering Memorandum, of any suspension of the qualification of the
Securities for offering or sale in any jurisdiction and of the initiation
or threatening of any proceeding for any such purpose; and to use its best
efforts to prevent the issuance of any such order preventing or suspending
the use of the Preliminary Offering Memorandum or the Offering Memorandum
or suspending any such qualification and, if any such suspension is
issued, to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and
counsel for the Initial Purchasers, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum (and any
amendments or supplements thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to the Offering
Memorandum, to furnish a copy thereof to each of the Initial Purchasers
and counsel for the Initial Purchasers and not to effect any such
amendment or supplement to which the Initial Purchasers shall reasonably
object by notice to the Company after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the
Securities by the Initial Purchasers, any event shall occur or condition
exist as a result of which it is necessary, in the opinion of counsel for
the Initial Purchasers or counsel for the Company, to amend or supplement
the Offering Memorandum in order that the Offering Memorandum will not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances existing at the time it is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Offering
Memorandum to comply with applicable law, to promptly prepare such
amendment or supplement as may be necessary to correct such untrue
statement or omission or so that the Offering Memorandum, as so amended or
supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act and are not saleable pursuant to Rule 144(k) under the
Securities Act, to furnish to holders of the Securities and prospective
purchasers of the Securities designated by such holders, upon request of
such holders or such prospective purchasers, the information required to
be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless
the Company is then subject to and in compliance with Section 13 or 15(d)
of the Exchange Act (the foregoing agreement being for the benefit of the
holders from time to time of the Securities and prospective purchasers of
the Securities designated by such holders);
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(f) for so long as the Securities are outstanding, to furnish to the
Initial Purchasers copies of any annual reports, quarterly reports and
current reports filed by the Company with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports and information as shall be
furnished by the Company to the Trustee or to the holders of the
Securities pursuant to the Indenture or the Exchange Act or any rule or
regulation of the Commission thereunder;
(g) to promptly take from time to time such actions as the Initial
Purchasers may reasonably request to qualify the Securities for offering
and sale under the securities or Blue Sky laws of such jurisdictions as
the Initial Purchasers may designate and to continue such qualifications
in effect for so long as required for the resale of the Securities; and to
arrange for the determination of the eligibility for investment of the
Securities under the laws of such jurisdictions as the Initial Purchasers
may reasonably request; provided that the Company, Neenah and Neenah's
subsidiaries shall not be obligated to qualify as foreign corporations in
any jurisdiction in which they are not so qualified or to file a general
consent to service of process in any jurisdiction;
(h) to assist the Initial Purchasers in arranging for the Securities
to be designated Private Offerings, Resales and Trading through Automated
Linkages ("PORTAL") Market securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers,
Inc. ("NASD") relating to trading in the PORTAL Market and for the
Securities to be eligible for clearance and settlement through the
Depository Trust Company ("DTC");
(i) not to, and to cause their affiliates not to, sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
security (as such term is defined in the Securities Act) which could be
integrated with the sale of the Securities in a manner which would require
registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case
may be, not to, and to cause their affiliates not to, and not to authorize
or knowingly permit any person acting on their behalf to, solicit any
offer to buy or offer to sell the Securities by means of any form of
general solicitation or general advertising within the meaning of
Regulation D or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act; and not to offer, sell,
contract to sell or otherwise dispose of, directly or indirectly, any
securities under circumstances where such offer, sale, contract or
disposition would cause the exemption afforded by Section 4(2) of the
Securities Act to cease to be applicable to the offering and sale of the
Securities as contemplated by this Agreement and the Offering Memorandum;
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(k) for a period of 180 days from the date of the Offering
Memorandum, not to offer for sale, sell, contract to sell or otherwise
dispose of, directly or indirectly, or file a registration statement for,
or announce any offer, sale, contract for sale of or other disposition of
any debt securities issued or guaranteed by the Company or any of its
subsidiaries (other than the Securities or the Exchange Securities)
without the prior written consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years after
the Closing Date, without the prior written consent of the Initial
Purchasers, not to, and not permit any of its affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of the Securities that
have been reacquired by them, except for Securities purchased by the
Company or any of its affiliates and resold in a transaction registered
under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or
become, or be or become owned by, an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the Investment Company Act, and to not
be or become, or be or become owned by, a closed-end investment company
required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until CSI on
behalf of the Initial Purchasers shall have notified the Company of the
completion of the resale of the Securities, not to, and to use its
reasonable best efforts to cause its affiliated purchasers (as defined in
Rule 100 of Regulation M under the Exchange Act) not to, directly or
indirectly, either alone or with one or more other persons, bid for,
purchase, or attempt to induce any person to bid for or purchase, a
covered security during the applicable restricted period;
(o) in connection with the offering of the Securities, to make the
officers, employees, independent accountants and legal counsel of the
Company, Holdings, Neenah and Neenah's subsidiaries reasonably available
upon request by the Initial Purchasers;
(p) to furnish to each of the Initial Purchasers on the date hereof
a copy of the independent accountants' report included in the Offering
Memorandum signed by the accountants rendering such report;
(q) to do and perform all things required to be done and performed
by it under this Agreement that are within its control prior to or after
the Closing Date, and to use its best efforts to satisfy all conditions
precedent to the delivery of the Securities;
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(r) to not take, and to use best efforts to cause Holdings, Neenah
and each of Neenah's subsidiaries to not take, any action prior to the
execution and delivery of the Indenture which, if taken after such
execution and delivery, would have violated any of the covenants contained
in the Indenture;
(s) to not take, and to use best efforts to cause Holdings, Neenah
and each of Neenah's subsidiaries to not take, any action prior to the
Closing Date which would require the Offering Memorandum to be amended or
supplemented pursuant to Section 4(d);
(t) prior to the Closing Date, not to issue, and to use best efforts
to cause Holdings, Neenah and each of Neenah's subsidiaries not to issue,
any press release or other communication directly or indirectly or hold
any press conference with respect to the Company, Neenah or Neenah's
subsidiaries, their respective conditions, financial or otherwise, or
earnings, business affairs or business prospects (except for routine oral
marketing communications in the ordinary course of business and consistent
with the past practices of Neenah and of which the Initial Purchasers are
notified), without the prior written consent of the Initial Purchasers,
unless in the judgment of the Company and its counsel, and after
notification to the Initial Purchasers, such press release or
communication is required by law; and
(u) to apply the net proceeds from the sale of the Securities as set
forth in the Offering Memorandum under the heading "Use of Proceeds".
5. Conditions of Initial Purchasers' Obligations. The respective
obligations of the several Initial Purchasers hereunder are subject to (i) the
accuracy, on and as of the date hereof and the Closing Date, of the
representations and warranties of the Company contained herein, (ii) the
accuracy of the representations and warranties of Neenah and the Guarantors
contained in the Neenah Letter Agreement, (iii) the accuracy of the statements
of the Company, Neenah and the Guarantors and their respective officers made in
any certificates delivered pursuant hereto, (iv) the performance by the Company
of its obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchasers as promptly as practicable on or following the date of this
Agreement or at such other date and time as to which the Initial
Purchasers and the Company may agree; and no stop order suspending the
sale of the Securities in any jurisdiction shall have been issued and no
proceeding for that purpose shall have been commenced or shall be pending
or threatened.
(b) Neither of the Initial Purchasers shall have discovered and
disclosed to the Company on or prior to the Closing Date that the Offering
Memorandum
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or any amendment or supplement thereto contains an untrue statement of a
fact which, in the opinion of counsel for the Initial Purchasers, is
material or omits to state any fact which, in the opinion of such counsel,
is material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of each of the Transaction Documents
and the Offering Memorandum, and all other legal matters relating to the
Transaction Documents and the transactions contemplated thereby, shall be
satisfactory in all material respects to the Initial Purchasers, and the
Company, Holdings, Neenah and the Guarantors shall have furnished to the
Initial Purchasers all documents and information that they or their
counsel may reasonably request to enable them to pass upon such matters.
(d) Kirkland & Ellis ("K&E"), as counsel to the Company, Foley &
Lardner, as counsel for the Company and Neenah, and Quarles and Brady
("Q&B"), as counsel to Neenah and the Guarantors, shall have furnished to
the Initial Purchasers their written opinions, addressed to the Initial
Purchasers and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, substantially to the effect set
forth in Annex B-1, Annex B-2 and Annex B-3 hereto, respectively.
(e) The Initial Purchasers shall have received from CSM, such
opinion or opinions, dated the Closing Date, with respect to such matters
as the Initial Purchasers may reasonably require, and the Company,
Holdings, Neenah and the Guarantors shall have furnished to such counsel
such documents and information as CSM requests for the purpose of enabling
them to pass upon such matters.
(f) Neenah shall have furnished to the Initial Purchasers a letter
(the "Initial Letter") of Ernst & Young LLP, addressed to the Initial
Purchasers and dated April 24, 1997, in form and substance satisfactory to
the Initial Purchasers, substantially to the effect set forth in Annex C
hereto.
(g) Neenah shall have furnished to the Initial Purchasers a letter
(the "Bring-Down Letter") of Ernst & Young LLP, addressed to the Initial
Purchasers and dated the Closing Date (i) confirming that they are
independent public accountants with respect to Neenah and its subsidiaries
within the meaning of Rule 101 of the Code of Professional Conduct of the
AICPA and its interpretations and rulings thereunder, (ii) stating, as of
the date of the Bring-Down Letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Offering Memorandum, as of a date
not more than three business days prior to the date of the Bring-Down
Letter), that the conclusions and findings of such
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accountants with respect to the financial information and other matters
covered by the Initial Letter are accurate and (iii) confirming in all
material respects the conclusions and findings set forth in the Initial
Letter. In addition, Neenah shall have received letters from such
accountants consenting to the use, in connection with the offering of the
Securities, of the audited consolidated financial statements of Neenah
prepared by such accountants and included in the Offering Memorandum.
(h) Each of the Company, Neenah and the Guarantors shall have
furnished to the Initial Purchasers a certificate, dated the Closing Date,
of its chief executive officer or president and its chief financial
officer stating that (A) such officers have carefully examined the
Offering Memorandum, (B) in their opinion, the Offering Memorandum, as of
its date, did not include any untrue statement of a material fact and did
not omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and since the
date of the Offering Memorandum, no event has occurred which should have
been set forth in a supplement or amendment to the Offering Memorandum so
that the Offering Memorandum (as so amended or supplemented) would not
include any untrue statement of a material fact and would not omit to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading and (C) as of the Closing Date, the
representations and warranties of the Company in this Agreement and of
Neenah and the Guarantors in the Neenah Letter Agreement are true and
correct in all material respects, the Company, Neenah and each of the
Guarantors have complied with all agreements and satisfied all conditions
on their part to be performed or satisfied hereunder or under the Neenah
Letter Agreement on or prior to the Closing Date, and subsequent to the
date of the most recent financial statements contained in the Offering
Memorandum, there has been no material adverse change in the financial
position or results of operation of Neenah or any of its subsidiaries, or
any change, or any development including a prospective change, in or
affecting the condition (financial or otherwise), results of operations,
business or prospects of Neenah and its subsidiaries taken as a whole.
(i) The Indenture shall have been duly executed and delivered by the
Company and the Trustee and the Notes shall have been duly executed and
delivered by the Company and duly authenticated by the Trustee.
(j) The Securities shall have been approved by the NASD for trading
in the PORTAL Market.
(k) If any event shall have occurred that requires the Company under
Section 4(d) to prepare an amendment or supplement to the Offering
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Memorandum, such amendment or supplement shall have been prepared, the
Initial Purchasers shall have been given a reasonable opportunity to
comment thereon, and copies thereof shall have been delivered to the
Initial Purchasers reasonably in advance of the Closing Date.
(l) There shall not have occurred any invalidation of Rule 144A
under the Securities Act by any court or any withdrawal or proposed
withdrawal of any rule or regulation under the Securities Act or the
Exchange Act by the Commission or any amendment or proposed amendment
thereof by the Commission which in the judgment of the Initial Purchasers
would materially impair the ability of the Initial Purchasers to purchase,
hold or effect resales of the Securities as contemplated hereby.
(m) Subsequent to the execution and delivery of this Agreement or,
if earlier, the dates as of which information is given in the Offering
Memorandum (exclusive of any amendment or supplement thereto), there shall
not have been any change in the capital stock or long-term debt or any
change, or any development involving a prospective change, in or affecting
the condition (financial or otherwise), results of operations, business or
prospects of Neenah and its subsidiaries taken as a whole, the effect of
which, in any such case described above, is, in the judgment of the
Initial Purchasers, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Securities on the
terms and in the manner contemplated by this Agreement and the Offering
Memorandum (exclusive of any amendment or supplement thereto).
(n) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance
or sale of the Securities; and no injunction, restraining order or order
of any other nature by any federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would
prevent the issuance or sale of the Securities.
(o) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the Securities
by any "nationally recognized statistical rating organization", as such
term is defined by the Commission for purposes of Rule 436(g)(2) of the
rules and regulations of the Commission under the Securities Act and (ii)
no such organization shall have publicly announced that it has under
surveillance or review (other than an announcement with positive
implications of a possible upgrading), its rating of the Securities.
(p) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange, the
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NASDAQ market or the over-the-counter market shall have been suspended or
limited, or minimum prices shall have been established on any such
exchange or market by the Commission, by any such exchange or by any other
regulatory body or governmental authority having jurisdiction, or (ii) any
moratorium on commercial banking activities shall have been declared by
federal or New York state authorities or (iii) an outbreak or escalation
of hostilities or a declaration by the United States of a national
emergency or war or (iv) a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such)
the effect of which, in the case of this clause (iv), is, in the judgment
of the Initial Purchasers, so material and adverse as to make it
impracticable or inadvisable to proceed with the sale or the delivery of
the Securities on the terms and in the manner contemplated by this
Agreement and in the Offering Memorandum (exclusive of any amendment or
supplement thereto).
(q) Substantially simultaneously with the sale of the Securities
hereunder (i) the Merger shall have been consummated, (ii) the Initial
Purchasers shall have received a counterpart of an agreement in the form
of Exhibit D hereto (the "Neenah Letter Agreement") which shall have been
executed and delivered by a duly authorized officer of Neenah and each of
the Guarantors, whereby, among other things, Neenah (as the surviving
entity after the Merger) and the Guarantors will become parties to this
Agreement and be subject to the obligations of the Company under this
Agreement, including, but not limited to, the obligations under Sections
8, 9, 10 and 12 hereof, (iii) the Initial Purchasers shall have received a
counterpart of the Supplemental Indenture which shall have been executed
and delivered by the parties thereto and pursuant to the terms thereof
Neenah shall have become the primary obligor under the Indenture and the
Guarantors shall have become note guarantors under the Indenture and (iv)
the Initial Purchasers shall have received a counterpart of the
Registration Rights Agreement which shall have been executed and delivered
by a duly authorized officer of Neenah and each of the Guarantors.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
6. Termination. The obligations of the Initial Purchasers hereunder
may be terminated by the Initial Purchasers, in their absolute discretion, by
notice given to and received by the Company prior to delivery of and payment for
the Securities if, prior to that time, any of the events described in Section
5(l), (m), (n), (o) or (p) shall have occurred and be continuing.
7. Defaulting Initial Purchasers. (a) If, on the Closing Date, any
Initial Purchaser defaults in the performance of its obligations under this
Agreement, the non-
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defaulting Initial Purchaser may make arrangements for the purchase of the
Securities which such defaulting Purchaser agreed but failed to purchase by
other persons satisfactory to the Company and the non-defaulting Initial
Purchaser, but if no such arrangements are made within 36 hours after such
default, this Agreement shall terminate without liability on the part of the
non-defaulting Initial Purchasers or the Company, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Sections 8 and 12 and except that the provisions of Sections 9 and 10 shall not
terminate and shall remain in effect. As used in this Agreement, the term
"Initial Purchasers" includes, for all purposes of this Agreement unless the
context otherwise requires, any party not listed in Schedule 1 hereto that,
pursuant to this Section 7, purchases Securities which a defaulting Initial
Purchaser agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company or any non-defaulting
Initial Purchaser for damages caused by its default. If other persons are
obligated or agree to purchase the Securities of a defaulting Initial Purchaser,
either the non-defaulting Initial Purchaser or the Company may postpone the
Closing Date for up to seven full business days in order to effect any changes
that in the opinion of counsel for the Company or counsel for the Initial
Purchasers may be necessary in the Offering Memorandum or in any other document
or arrangement, and the Company agrees to promptly prepare any amendment or
supplement to the Offering Memorandum that effects any such changes.
8. Reimbursement of Initial Purchasers' Expenses. If (a) this
Agreement shall have been terminated pursuant to Section 6 or Section 7, (b) the
Company shall fail to tender the Securities for delivery to the Initial
Purchasers for any reason permitted under this Agreement or (c) the Initial
Purchasers shall decline to purchase the Securities for any reason permitted
under this Agreement, the Company shall reimburse the Initial Purchasers for
such out-of-pocket expenses (including reasonable fees and disbursements of
counsel) as shall have been reasonably incurred by the Initial Purchasers in
connection with this Agreement and the proposed purchase and resale of the
Securities. If this Agreement is terminated pursuant to Section 7 by reason of
the default of one or more of the Initial Purchasers, the Company shall not be
obligated to reimburse any defaulting Initial Purchaser on account of such
expenses.
9. Indemnification. (a) The Company shall indemnify and hold
harmless each Initial Purchaser, its affiliates, their respective officers,
directors, employees, representatives and agents, and each person, if any, who
controls any Initial Purchaser within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 9(a) and
Section 10 as an Initial Purchaser), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
without limitation, any loss, claim, damage, liability or action relating to
purchases and sales of the Securities), to which that Initial Purchaser may
become subject, whether commenced or threatened, under the Securities Act, the
Exchange Act, any other federal or state statutory law or regulation, at common
law or
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otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) 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 or supplement thereto or in any information
provided by the Company pursuant to Section 4(e) or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and shall reimburse
each Initial Purchaser promptly upon demand for any legal or other expenses
reasonably incurred by that Initial Purchaser in connection with investigating
or defending or preparing to defend against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with any Initial Purchasers'
Information; and provided, further, that with respect to any such untrue
statement in or omission from the Preliminary Offering Memorandum, the indemnity
agreement contained in this Section 9(a) shall not inure to the benefit of any
such Initial Purchaser to the extent that the sale to the person asserting any
such loss, claim, damage, liability or action was an initial resale by such
Initial Purchaser and any such loss, claim, damage, liability or action of or
with respect to such Initial Purchaser results from the fact that both (A) to
the extent required by applicable law, a copy of the Offering Memorandum was not
sent or given to such person at or prior to the written confirmation of the sale
of such Securities to such person and (B) the untrue statement in or omission
from the Preliminary Offering Memorandum was corrected in the Offering
Memorandum unless, in either case, such failure to deliver the Offering
Memorandum was a result of non-compliance by the Company with Section 4(b).
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Company, its affiliates, their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 9(b) and
Section 10 as the Company), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) 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 or supplement
thereto or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with any Initial
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Purchasers' Information, and shall reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending or preparing to defend against or appearing as a third party witness
in connection with any such loss, claim, damage, liability or action as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 9(a) or 9(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 9 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 9. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that an
indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in
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Sections 9(a) and 9(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
The obligations of the Company and the Initial Purchasers in this
Section 9 and in Section 10 are in addition to any other liability that the
Company or the Initial Purchasers, as the case may be, may otherwise have,
including in respect of any breaches of representations, warranties and
agreements made herein by any such party.
10. Contribution. If the indemnification provided for in Section 9
is unavailable or insufficient to hold harmless an indemnified party under
Section 9(a) or 9(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Initial Purchasers on the other from the offering of the Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Initial Purchasers on the other with respect
to the statements or omissions that resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Initial Purchasers on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Securities purchased under this Agreement (before deducting expenses)
received by or on behalf of the Company, on the one hand, and the total
discounts and commissions received by the Initial Purchasers with respect to the
Securities purchased under this Agreement, on the other, bear to the total gross
proceeds from the sale of the Securities under this Agreement, in each case as
set forth in the table on the cover page of the Offering Memorandum. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to the Company or information
supplied by the Company on the one hand or to any Initial Purchasers'
Information on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission.
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The Company and the Initial Purchasers agree that it would not be just and
equitable if contributions pursuant to this Section 10 were to be determined by
pro rata allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation that does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 10
shall be deemed to include, for purposes of this Section 10, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 10, no Initial Purchaser shall be
required to contribute any amount in excess of the amount by which the total
discounts and commissions received by such Initial Purchaser with respect to the
Securities purchased by it under this Agreement exceeds the amount of any
damages which such Initial Purchaser has otherwise paid or become liable to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute as provided in this Section 10 are several
in proportion to their respective purchase obligations and not joint.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the Company
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except as provided in
Sections 9 and 10 with respect to affiliates, officers, directors, employees,
representatives, agents and controlling persons of the Company and the Initial
Purchasers and in Section 4(e) with respect to holders and prospective
purchasers of the Securities. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
11, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
12. Expenses. The Company agrees with the Initial Purchasers to pay
(a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Securities and any taxes payable in that connection; (b) the
costs incident to the preparation, printing and distribution of the Preliminary
Offering Memorandum, the Offering Memorandum and any amendments or supplements
thereto; (c) the costs of reproducing and distributing each of the Transaction
Documents; (d) the costs incident to the preparation, printing and delivery of
the certificates evidencing the Securities, including stamp duties and transfer
taxes, if any, payable upon issuance of the Securities; (e) the fees and
expenses of the Company's counsel and independent accountants; (f) the fees and
expenses of qualifying the Securities under the securities laws of the several
jurisdictions as provided in Section 4(h) and of preparing, printing and
distributing Blue Sky Memoranda (including related fees and expenses of counsel
for the Initial Purchasers); (g) any fees charged by rating agencies for rating
the
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Securities; (h) the fees and expenses of the Trustee and any paying agent
(including related fees and expenses of any counsel to such parties); (i) all
expenses and application fees incurred in connection with the application for
the inclusion of the Securities on the PORTAL Market and the approval of the
Securities for book-entry transfer by DTC; and (j) all other costs and expenses
incident to the performance of the obligations of the Company under this
Agreement which are not otherwise specifically provided for in this Section 12;
provided, however, that except as provided in this Section 12 and Section 8, the
Initial Purchasers shall pay their own costs and expenses.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Initial
Purchasers contained in this Agreement or made by or on behalf of the Company or
the Initial Purchasers pursuant to this Agreement or any certificate delivered
pursuant hereto shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
of them or any of their respective affiliates, officers, directors, employees,
representatives, agents or controlling persons.
14. Notices, etc.. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by mail
or telecopy transmission to Chase Securities Inc., 270 Park Avenue, New
York, New York 10017, Attention: Gerard J. Murray (telecopier no.: (212)
270-0994); or
(b) if to the Company, shall be delivered or sent by mail or
telecopy transmission to the address of the Company set forth in the
Offering Memorandum, Attention: James K. Hildebrand (telecopier no.:
614-889-8308);
provided that any notice to an Initial Purchaser pursuant to Section 9(c) shall
also be delivered or sent by mail to such Initial Purchaser at its address set
forth on the signature page hereof. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Initial Purchasers by CSI.
15. Definition of Terms. For purposes of this Agreement, (a) the
term "business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
16. Initial Purchasers' Information. The parties hereto acknowledge
and agree that the Initial Purchasers' Information consists solely of the
following
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information in the Preliminary Offering Memorandum and the Offering Memorandum:
(i) the last paragraph on the front cover page concerning the terms of the
offering by the Initial Purchasers; (ii) the first paragraph on the inside front
cover page concerning over-allotment and trading activities by the Initial
Purchasers; and (iii) the statements concerning the Initial Purchasers contained
in the third, fourth, sixth and seventh paragraphs under the heading "Plan of
Distribution".
17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
18. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
19. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the several
Initial Purchasers in accordance with its terms.
Very truly yours,
NC MERGER COMPANY
By
------------------------------
Name:
Title:
Accepted:
CHASE SECURITIES INC.
By
----------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
1 Chase Plaza, 25th floor
New York, New York 10081
Attention: Legal Department
MORGAN STANLEY & CO. INCORPORATED
By
----------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
1585 Broadway (33rd Floor)
New York, NY 10036
Attention: Legal Department
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SCHEDULE 1
Principal
Amount
Initial Purchasers of Securities
------------------ -------------
Chase Securities Inc. $ 112,500,000
Morgan Stanley & Co. Incorporated 37,500,000
-----------
Total $ 150,000,000
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ANNEX A
[Form of Exchange and Registration Rights Agreement]
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ANNEX B-1
[Form of Opinion of Counsel for the Company]
Kirkland & Ellis shall have furnished to the Initial Purchasers
their written opinion, as counsel to the Company, addressed to the Initial
Purchasers and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, substantially to the effect set forth
below:
(i) Holdings has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, is
duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such qualification, and
has all power and authority necessary to own or hold its properties and to
conduct the businesses in which it is engaged (except where the failure to
so qualify or have such power or authority would not, singularly or in the
aggregate, have a Material Adverse Effect);
(ii) all of the outstanding shares of capital stock of Holdings have
been, and upon the consummation of the Merger all of the outstanding
shares of capital stock of Holdings will be, duly and validly authorized
and issued and fully paid and non-assessable;
(iii) the statements in the Offering Memorandum under the heading
"Certain United States Federal Income Tax Considerations", to the extent
that they constitute summaries of matters of law or regulation or legal
conclusions, have been reviewed by such counsel and fairly summarize the
matters described therein in all material respects; and such counsel does
not have actual knowledge of any current or pending legal or governmental
actions, suits or proceedings which would be required to be described in
the Offering Memorandum if the Offering Memorandum were a prospectus
included in a registration statement on Form S-1 which are not described
as so required;
(iv) the Indenture conforms in all material respects with the
requirements of the Trust Indenture Act and the rules and regulations of
the Commission applicable to an indenture which is qualified thereunder;
(v) Holdings has full right, power and authority to execute and
deliver each of the Transaction Documents to which is a party and to
perform its obligations thereunder; and all corporate action required to
be taken for the due and proper authorization, execution and delivery of
each of the Transaction
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Documents to which Holdings is a party and the consummation of the
transactions contemplated thereby have been duly and validly taken;
(vi) assuming the due authorization, execution and delivery of the
Purchase Agreement by the Company, the Purchase Agreement constitutes a
valid and legally binding agreement of the Company (and, upon the due
authorization, execution, and delivery of the Neenah Letter Agreement by
the parties thereto, of Neenah and the Guarantors) enforceable against the
Company (and Neenah and each of the Guarantors) in accordance with its
terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and by general equitable principles (whether considered in a proceeding in
equity or at law) and except to the extent that the indemnification
provisions thereof may be limited by applicable law;
(vii) upon the due authorization, execution and delivery of the
Registration Rights Agreement by Neenah and the Guarantors, the
Registration Rights Agreement will constitute a valid and legally binding
agreement of the Neenah and each of the Guarantors, enforceable against
each of them in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law) and except to the
extent that the indemnification provisions thereof may be limited by
applicable law;
(viii) assuming the due authorization, execution and delivery of the
Indenture by the Company and the Trustee, the Indenture constitutes a
valid and legally binding agreement of the Company (and, upon the due
authorization, execution and delivery of the Supplemental Indenture by the
parties thereto, of Neenah and the Guarantors) enforceable against the
Company (and Neenah as primary obligor and each of the Guarantors as note
guarantors) in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law);
(ix) assuming the due authorization and execution of the Securities
by the Company and, assuming due authentication thereof by the Trustee and
upon payment and delivery in accordance with the Purchase Agreement, the
Securities constitute valid and legally binding obligations of the Company
(and, upon the due authorization, execution and delivery of the
Supplemental Indenture by the parties thereto, of Neenah and the
Guarantors) entitled to the benefits of the Indenture and enforceable
against the Company (and Neenah as primary obligor
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and each of the Guarantors as note guarantors) in accordance with their
terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and by general equitable principles (whether considered in a proceeding in
equity or at law);
(x) the Merger Agreement has been duly authorized, executed and
delivered by Holdings;
(xi) each Transaction Document conforms in all material respects to
the description thereof contained in the Offering Memorandum;
(xii) the execution, delivery and performance by Holdings of each of
the Transaction Documents to which it is a party, the compliance by
Holdings with the terms of each of the Transaction Documents to which it
is a party and the consummation of the Transactions will not conflict with
or result in a breach or violation of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of Holdings
pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which Holdings is a party or by which it
is bound or to which its property or assets is subject, nor will such
actions result in any violation of the provisions of the charter or
by-laws of Holdings or any statute or any judgment, order, decree, rule or
regulation of any court or arbitrator or governmental agency or body
having jurisdiction over Holdings or any of its properties or assets; and
no consent, approval, authorization or order of, or filing or registration
with, any such court or arbitrator or governmental agency or body under
any such statute, judgment, order, decree, rule or regulation is required
for the execution, delivery and performance by Holdings of each of the
Transaction Documents to which it is a party, the compliance by Holdings
with the terms of each of the Transaction Documents to which it is a party
and the consummation of the Transactions, except for such consents,
approvals, authorizations, filings, registrations or qualifications (i)
which have been obtained or made prior to the Closing Date and (ii) as may
be required to be obtained or made under the Securities Act and applicable
state securities laws as provided in the Registration Rights Agreement;
(xiii) to the best knowledge of such counsel, there are no pending
actions or suits or judicial, arbitral, rule-making, administrative or
other proceedings to which Holdings is a party or of which any property or
assets of Holdings is the subject which (A) singularly or in the
aggregate, if determined adversely to Holdings, could reasonably be
expected to have a Material Adverse Effect or (B) questions the validity
or enforceability of any of the Transaction Documents or any action taken
or to be taken pursuant thereto; and to the best
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knowledge of such counsel, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(xiv) Holdings is not (A) in violation of its charter or by-laws,
(B) in default in any material respect, and no event has occurred which,
with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which it is a party
or by which it is bound or to which any of its property or assets is
subject or (C) in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its property
or assets may be subject;
(xv) neither the consummation of the transactions contemplated by
the Purchase Agreement nor the sale, issuance, execution or delivery of
the Securities will violate Regulation G, T, U or X of the Federal
Reserve Board; and
(xvi) assuming the accuracy of the representations, warranties and
agreements of the Company (and, upon the due authorization, execution and
delivery of the Neenah Letter Agreement, of Neenah and the Guarantors) and
of the Initial Purchasers contained in the Purchase Agreement, the
issuance and sale of the Securities and the offer, resale and delivery of
the Securities in the manner contemplated by the Purchase Agreement and
the Offering Memorandum, are exempt from the registration requirements of
the Securities Act, and it is not necessary to qualify the Indenture under
the Trust Indenture Act.
Such counsel shall also state that they have participated in
conferences with representatives of the Company and Neenah and with
representatives of Neenah's independent accountants and counsel at which
conferences the contents of the Offering Memorandum and any amendment and
supplement thereto and related matters were discussed and, although such counsel
assume no responsibility for the accuracy, completeness or fairness of the
Offering Memorandum, any amendment or supplement thereto (except as expressly
provided above), nothing has come to the attention of such counsel to cause such
counsel to believe that the Offering Memorandum or any amendment or supplement
thereto (other than the financial statements and other financial and statistical
information contained therein, as to which such counsel need express no belief)
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of Neenah and public officials which are furnished to the Initial
Purchasers.
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ANNEX B-2
[Form of Opinion of Counsel for the Company and Neenah]
Foley & Lardner shall have furnished to the Initial Purchasers their
written opinion, as counsel to the Company and to Neenah, addressed to the
Initial Purchasers and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, substantially to the effect set forth
below:
(i) The Company has been, and upon consummation of the Merger each
of Neenah and each of the Guarantors will be, duly incorporated and
validly existing as corporations under the laws of the State of Wisconsin;
(ii) all of the outstanding shares of capital stock of the Company
have been, and upon the consummation of the Merger all of the outstanding
shares of capital stock of Neenah will be, duly and validly authorized and
issued and fully paid and non-assessable, except as set forth in Section
180.0622(2)(b) of the Wisconsin Statutes, as judicially interpreted; and
upon the consummation of the Merger and the other Transactions the capital
stock of Neenah will conform in all material respects to the description
thereof contained in the Offering Memorandum;
(iii) each of the Company, Neenah and each of the Guarantors has
full right, power and authority to execute and deliver each of the
Transaction Documents to which is a party and to perform its obligations
thereunder; and all corporate action required to be taken for the due and
proper authorization, execution and delivery of each of the Transaction
Documents to which any of the Company, Neenah or any of the Guarantors is
a party and the consummation of the transactions contemplated thereby have
been duly and validly taken;
(iv) the Purchase Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company (and, upon the due authorization, execution, and
delivery of the Neenah Letter Agreement by the parties thereto, of Neenah
and the Guarantors) enforceable against the Company (and Neenah and each
of the Guarantors) in accordance with its terms, except to the extent that
such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law) and except to the
extent that the indemnification provisions thereof may be limited by
applicable law;
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(v) the Indenture has been duly authorized, executed and delivered
by the Company and, assuming due authorization, execution and delivery
thereof by the Trustee, constitutes a valid and legally binding agreement
of the Company (and, upon the due authorization, execution and delivery of
the Supplemental Indenture by the parties thereto, of Neenah and the
Guarantors) enforceable against the Company (and Neenah as primary obligor
and each of the Guarantors as note guarantors) in accordance with its
terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insol vency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and by general equitable principles (whether considered in a proceeding in
equity or at law);
(vi) the Securities have been duly authorized and issued by the
Compa ny and, assuming due authentication thereof by the Trustee and upon
payment and delivery in accordance with the Purchase Agreement, will
constitute valid and legally binding obligations of the Company (and, upon
the due authorization, execution and delivery of the Supplemental
Indenture by the parties thereto, of Neenah and the Guarantors) entitled
to the benefits of the Indenture and enforceable against the Company (and
Neenah as primary obligor and each of the Guarantors as note guarantors)
in accordance with their terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law);
(vii) the Merger Agreement has been duly authorized, executed and
delivered by the Company, and assuming due authorization, execution and
delivery by Neenah and Holdings, will constitute a valid and legally
binding agreement of Neenah, the Company and Holdings enforceable against
Neenah, the Company and Holdings in accordance with its terms, except to
the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights generally and by
general equitable principles (whether considered in a proceeding in equity
or at law);
(viii) the execution, delivery and performance by each of the
Company, Neenah and each of the Guarantors of each of the Transaction
Documents, the issuance, authentication, sale and delivery of the
Securities by the Company, the compliance by each of the Company, Neenah
and each of the Guarantors with the terms of each of the Transaction
Documents to which each is a party and the consummation of the
Transactions will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company, Neenah or any of the
Guarantors pursuant to any indenture, mortgage, deed of trust, loan
agreement or other agreement or
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instrument to which the Company, Neenah or any of the Guarantors is a
party or by which any of them are bound or to which the property or assets
of any of them is subject, nor will such actions result in any violation
of the provisions of the charter or by-laws of any of the Company, Neenah
or any of the Guarantors or any statute or any judgment, order, decree,
rule or regulation of any court or arbitrator or governmental agency or
body having jurisdiction over any of the Company, Neenah or any of the
Guarantors or any of their properties or assets; and no consent, approval,
authorization or order of, or filing or registration with, any such court
or arbitrator or governmental agency or body under any such statute,
judgment, order, decree, rule or regulation is required for the execution,
delivery and performance by each of the Company, Neenah and each of the
Guarantors of each of the Transaction Documents to which each is a party,
the issuance, authentication, sale and delivery of the Securities by the
Company, the compliance by each of the Company, Neenah and each of the
Guarantors with the terms of each of the Transaction Documents to which
each is a party and the consummation of the Transactions, except for such
consents, approvals, authorizations, filings, registrations or
qualifications (i) which have been obtained or made prior to the Closing
Date and (ii) as may be required to be obtained or made under the
Securities Act and applicable state securities laws as provided in the
Registration Rights Agreement;
(ix) to the best knowledge of such counsel, there are no pending
actions or suits or judicial, arbitral, rule-making, administrative or
other proceedings to which the Company is a party or of which any property
or assets of the Company is the subject which (A) singularly or in the
aggregate, if determined adversely to the Company, could reasonably be
expected to have a Material Adverse Effect or (B) questions the validity
or enforceability of any of the Transaction Documents or any action taken
or to be taken pursuant thereto; and to the best knowledge of such
counsel, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(x) the Company is not (A) in violation of its charter or by-laws,
(B) in default in any material respect, and no event has occurred which,
with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which it is a party
or by which it is bound or to which any of its property or assets is
subject or (C) in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its property
or assets may be subject;
(xi) neither the Company, Neenah nor any of Neenah's subsidiaries is
(A) an "investment company" or a company "controlled by" an investment
company within the meaning of the Investment Company Act and the rules and
regulations of the Commission thereunder, without taking account of any
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exemption under the Investment Company Act arising out of the number of
holders of securities of the Company, Neenah or Neenah's subsidiaries or
(B) a "holding company" or a "subsidiary company" of a holding company or
an "affiliate" thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended;
(xii) each of the Letter Agreement, the Supplemental Indenture and
the Registration Rights Agreement has been duly authorized, executed and
delivered by Neenah and each of the Guarantors, and each of the Letter
Agreement, the Supplemental Indenture and the Registration Rights
Agreement is enforceable against Neenah and each of the Guarantors in
accordance with its terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law);
(xii) neither the consummation of the transactions contemplated by
the Purchase Agreement nor the assumption of the Notes by Neenah or the
guarantee of the Notes by the Guarantors will violate Regulation G, T, U
or X of the Federal Reserve Board.
In rendering such opinion, such counsel may rely as to matters of fact, to
the extent such counsel deems proper, on certificates of responsible officers of
the Company, Neenah and public officials which are furnished to the Initial
Purchasers.
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ANNEX B-3
[Form of Opinion of Counsel for Neenah]
Quarles & Brady shall have furnished to the Initial Purchasers their
written opinion, as counsel to Neenah and the Guarantors, addressed to the
Initial Purchasers and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, substantially to the effect set forth
below:
(i) Neenah and each of the Guarantors has been duly incorporated and
is validly existing as a corporation under the laws of Wisconsin, is duly
qualified to do business and is in good standing as a foreign corporation
in each jurisdiction in which its ownership or lease of property or the
conduct of its businesses requires such qualification, and has all power
and authority necessary to own or hold its properties and to conduct the
businesses in which it is engaged (except where the failure to so qualify
or have such power or authority would not, singularly or in the aggregate,
have a Material Adverse Effect),
(ii) all of the outstanding shares of capital stock of Neenah and
each of the Guarantors have been duly and validly authorized and issued
and are fully paid and non-assessable, except as set forth in Section
180.0622(2)(b) of the Wisconsin Statutes, as judicially interpretated.
Upon consummation of and by virtue of the Merger, each outstanding share
of the Company's common stock, without par value, will be converted into
one share of the Class A Common Stock of Neenah, and each outstanding
share of the Common Stock of Neenah will be converted into cash as
provided in the Merger Agreement;
(iii) to the best knowledge of such counsel, there are not any
current or pending legal or governmental actions, suits or proceedings
which would be required to be described in the Offering Memorandum if the
Offering Memorandum were a prospectus included in a registration
statement on Form S-1 which are not described as so required;
(iv) the Merger Agreement has been duly authorized, executed and
delivered by Neenah, and assuming due authorization, execution and
delivery by the Company and Holdings, will constitute a valid and legally
binding agreement of Neenah enforceable against Neenah in accordance with
its terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and by general equitable principles (whether considered in a proceeding in
equity or at law);
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(v) the execution, delivery and performance by Neenah of the Merger
Agreement and compliance by Neenah with the terms thereof will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of Neenah or any of its subsidiaries pursuant to, any material indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which Neenah or any of its subsidiaries is a party or by
which Neenah or any of its subsidiaries is bound or to which any of the
property or assets of Neenah or any of its subsidiaries is subject, nor
will such actions result in any violation of the provisions of the charter
or by-laws of Neenah or any of its subsidiaries or any statute or any
judgment, order, decree, rule or regulation of any court or arbitrator or
governmental agency or body having jurisdiction over Neenah or any of its
subsidiaries or any of their properties or assets; and no consent,
approval, authorization or order of, or filing or registration with, any
such court or arbitrator or governmental agency or body under any such
statute, judgment, order, decree, rule or regulation is required for the
execution, delivery and performance by Neenah of the Merger Agreement, and
compliance by Neenah with the terms thereof and the consummation of the
Merger, except for such consents, approvals, authorizations, filings,
registrations or qualifications which have been obtained or made prior to
the Closing Date;
(vi) to the best knowledge of such counsel, there are no pending
actions or suits or judicial, arbitral, rule-making, administrative or
other proceedings to which Neenah or any of its subsidiaries is a party or
of which any property or assets of Neenah or any of its subsidiaries is
the subject which (A) singularly or in the aggregate, if determined
adversely to Neenah or any of its subsidiaries, could reasonably be
expected to have a Material Adverse Effect or (B) questions the validity
or enforceability of any of the Transaction Documents or any action taken
or to be taken pursuant thereto; and to the best knowledge of such
counsel, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(vii) neither Neenah nor any of its subsidiaries is (A) in violation
of its charter or by-laws, (B) in default in any material respect, and no
event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any material indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument to
which it is a party or by which it is bound or to which any of its
property or assets is subject or (C) in violation in any material respect
of any law, ordinance, governmental rule, regulation or court decree to
which it or its property or assets may be subject;
[Such counsel shall also state that they have participated in conferences
with representatives of Neenah and with representatives of Neenah's independent
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accountants and counsel at which conferences the contents of the Offering
Memorandum and any amendment and supplement thereto and related matters were
discussed and, although such counsel assume no responsibility for the accuracy,
completeness or fairness of the Offering Memorandum, any amendment or supplement
thereto (except as expressly provided above), nothing has come to the attention
of such counsel to cause such counsel to believe that the Offering Memorandum or
any amendment or supplement thereto (other than the financial statements and
other financial and statistical information contained therein, as to which such
counsel need express no belief) contains any untrue statement of a material fact
or omits to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.]
In rendering such opinion, such counsel may rely as to matters of fact, to
the extent such counsel deems proper, on certificates of responsible officers of
Neenah and public officials which are furnished to the Initial Purchasers.
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ANNEX C
[Form of Initial Comfort Letter]
Neenah shall have furnished to the Initial Purchasers a letter of
Ernst & Young LLP, addressed to the Initial Purchasers and dated the date of the
Purchase Agreement, in form and substance satisfactory to the Initial
Purchasers, substantially to the effect set forth below:
(i) they are independent certified public accountants with respect
to the Company within the meaning of Rule 101 of the Code of Professional
Conduct of the AICPA and its interpretations and rulings;
(ii) in their opinion, the audited financial statements and pro
forma financial information included in the Offering Memorandum and
reported on by them comply in form in all material respects with the
accounting requirements of the Exchange Act and the related published
rules and regulations of the Commission thereunder that would apply to the
Offering Memorandum if the Offering Memorandum were a prospectus included
in a registration statement on Form S-1 under the Securities Act (except
that certain supporting schedules are omitted);
(iii) based upon a reading of the latest unaudited financial
statements made available by Neenah, the procedures of the AICPA for a
review of interim financial information as described in Statement of
Auditing Standards No. 71, reading of minutes and inquiries of certain
officials of Neenah who have responsibility for financial and accounting
matters and certain other limited procedures requested by the Initial
Purchasers and described in detail in such letter, nothing has come to
their attention that causes them to believe that (A) any unaudited
consolidated financial statements included in the Offering Memorandum do
not comply as to form in all material respects with applicable accounting
requirements, (B) any material modifications should be made to the
unaudited consolidated financial statements included in the Offering
Memorandum for them to be in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
audited consolidated financial statements included in the Offering
Memorandum or (C) the information included under the headings
["Summary--Summary Consolidated Financial and Other Data",
"Capitalization", "Selected Consolidated Financial and Other Data",
"Management's Discussion and Analysis of Results of Operations and
Financial Condition" and "Management--Compensation of Executive
Officers"] is not in conformity with the disclosure requirements of
Regulation S-K that would apply to the Offering Memorandum
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if the Offering Memorandum were a prospectus included in a registration
statement on Form S-1 under the Securities Act;
(iv) based upon the procedures detailed in such letter with respect
to the period subsequent to the date of the last available balance sheet,
including reading of minutes and inquiries of certain officials of Neenah
who have responsibility for financial and accounting matters, nothing has
come to their attention that causes them to believe that (A) at a
specified date not more than three business days prior to the date of such
letter, there was any change in capital stock, increase in long-term debt
or decrease in net current assets as compared with the amounts shown in
the December 31, 1996 unaudited balance sheet included in the Offering
Memorandum or (B) for the period from December 31, 1996 to a specified
date not more than three business days prior to the date of such letter,
there were any decreases, as compared with the corresponding period in the
preceding year, in net sales, income from operations, EBITDA or net
income, except in all instances for changes, increases or decreases that
the Offering Memorandum discloses have occurred or which are set forth in
such letter, in which case the letter shall be accompanied by an
explanation by Neenah as to the significance thereof unless said
explanation is not deemed necessary by the Initial Purchasers;
(v) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company) set forth in the Offering Memorandum agrees with the
accounting records of Neenah, excluding any questions of legal
interpretation; and
(vi) on the basis of a reading of the unaudited pro forma financial
information included in the Offering Memorandum, carrying out certain
specified procedures, reading of minutes and inquiries of certain
officials of Neenah who have responsibility for financial and accounting
matters and proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma financial
information, nothing came to their attention which caused them to believe
that the pro forma financial information does not comply in form in all
material respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such
information.
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EXHIBIT D
April__, 1997
CHASE SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
c/o CHASE SECURITIES INC.
270 Park Avenue
New York, NY 10017
Dear Sirs:
Reference is hereby made to the Purchase Agreement dated April__, 1997
(the "Purchase Agreement"), between NC Merger Company, a Wisconsin corporation
(the "Company"), and you pursuant to which the Company has agreed to issue and
sell and you have agreed to purchase the Securities described therein on the
terms set forth therein. Capitalized terms used herein but not otherwise defined
herein have meanings assigned thereto in the Purchase Agreement (including by
reference therein to the Offering Memorandum). This is the letter agreement
referred to in Section 5(q) of the Purchase Agreement.
The parties hereto agree that this Letter Agreement is being executed and
delivered in connection with the issue and sale of the Securities pursuant to
the Purchase Agreement and to induce the Initial Purchasers to purchase the
Securities thereunder.
Neenah (as the Company's successor after the Merger) and each of the
Guarantors hereby confirm their agreement with you as follows:
SECTION 1. In accordance with Section 5(q) of the Purchase Agreement,
Neenah and each of the Guarantors by their respective signatures below each
becomes a party to the Purchase Agreement on the same terms and with the same
ongoing obligations and rights as the Company thereunder with the same force and
effect as if originally named therein as a party and Neenah and each of the
Guarantors jointly and severally agrees to all the terms and provisions of the
Purchase Agreement applicable to the Company thereunder including, but not
limited to, under Sections 8, 9, 10 and 12 thereof.
SECTION 2. Neenah and each of the Guarantors hereby represents and
warrants to, and agrees with, each of you as of the date hereof that:
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(a) each of them has full right, power and authority to execute and
deliver this Letter Agreement and perform its obligations hereunder and
all corporate action required to be taken by each of them for the due and
proper authorization, execution, delivery and performance of this Letter
Agreement and the consummation of the transactions contemplated hereby has
been duly and validly taken and this Letter Agreement has been duly
authorized and validly executed and delivered by each of them and is the
valid and legally binding agreement of each of them enforceable against
each of them in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
and similar laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is sought
in a proceeding at law or in equity), and except as rights to indemnity
and contribution may be limited under applicable law;
(b) each of them has full right, power and authority to execute and
deliver the Supplemental Indenture and perform its obligations thereunder
and all corporate action required to be taken by each of them for the due
and proper authorization, execution, delivery and performance of the
Supplemental Indenture and the consummation of the transactions
contemplated thereby have been duly and validly taken; the Supplemental
Indenture has been duly authorized by each of them, and, when duly
executed and delivered in accordance with its terms by each party thereto,
the Supplemental Indenture will constitute the valid and legally binding
agreement of Neenah, as primary obligor, and of each of the Guarantors, as
note guarantors, and will be enforceable against Neenah and each of the
Guarantors in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and similar
laws affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity); and
(c) the representations, warranties and agreements set forth in
Section 1 of the Purchase Agreement are true and accurate on the date
hereof as if made on such date by Neenah and each of the Guarantors, and
each reference therein to the knowledge of the Company shall be deemed to
be a reference to the knowledge of Neenah and each of the Guarantors.
SECTION 3. THIS LETTER AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 4. This Letter Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
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SECTION 5. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Letter Agreement.
If the foregoing is in accordance with your understanding of the agreement
among the parties hereto, kindly indicate your acceptance in the space provided
for that purpose below.
Very truly yours,
NEENAH CORPORATION,
By
----------------------
Name:
Title:
NEENAH FOUNDRY
COMPANY,
By
----------------------
Name:
Title:
HARTLEY CONTROLS
CORPORATION,
By
----------------------
Name:
Title:
NEENAH TRANSPORT, INC.,
By
----------------------
Name:
Title:
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CHASE SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
By CHASE SECURITIES INC.,
By _________________
Name:
Title: