1
EXHIBIT 10.14
$125,000,000
AQUA-CHEM, INC.
11 1/4% SENIOR SUBORDINATED NOTES DUE 2008
PURCHASE AGREEMENT
------------------
June 18, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, STEARNS & CO. INC.
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Aqua-Chem, Inc., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell (the "Offering") to the several initial purchasers named in
Schedule A hereto (the "Purchasers") $125,000,000 principal amount of its 11
1/4% Senior Subordinated Notes Due 2008 (the "Offered Securities") to be issued
under an indenture, dated as of June 23, 1998 (the "Indenture"), between the
Company and United States Trust Company of New York, as Trustee. The United
States Securities Act of 1933 is herein referred to as the "Securities Act".
The Offered Securities are being issued and sold in connection with the
consummation of the transactions contemplated by the Asset Purchase Agreement,
dated as of May 28, 1998 (the "Asset Purchase Agreement"), among the Company,
National Dynamics Corporation, a Nebraska corporation ("NDC") and Roger L.
Swanson, Verlyn L. Westra and Daniel T. Scully (each a shareholder of NDC, and
collectively, the "NDC Shareholders"), pursuant to which the Company has agreed,
subject to certain conditions, to acquire substantially all of the assets of NDC
(the "Acquisition").
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EXHIBIT 10.14
In connection with the Acquisition and the Offering, the Company
proposes to: (i) pay in full all outstanding borrowings under the Existing
Credit Facility (as defined in the Offering Document (as defined below)); (ii)
repurchase the Company's existing subordinated indebtedness (the "Existing
Subordinated Debt"); (iii) retire a portion of the Company's Series A Preferred
Stock (the "Preferred Stock"); and (iv) repay an existing note payable. The
foregoing transactions described in clauses (i) to (iv) above are referred to
herein as the "Transactions".
Holders (including subsequent transferees) of the Offered Securities
will have the registration rights set forth in the Registration Rights Agreement
of even date herewith among the Company and the Purchasers (the "Registration
Rights Agreement"). Pursuant to the Registration Rights Agreement, the Company
has agreed to file with the Securities and Exchange Commission (the
"Commission") (i) a registration statement under the Securi ties Act,
registering an issue of a series of senior subordinated notes (the "Exchange
Notes") identical in all material respects to the Offered Securities (except
that the Exchange Notes will not contain terms with respect to transfer
restrictions) to be offered in exchange for the Offered Securities and (ii)
under certain circumstances, a shelf registration statement pursuant to Rule 415
under the Securities Act.
This Agreement, the Indenture and the Registration Rights Agreement are
referred to herein collectively as the "Operative Documents".
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Purchasers as follows:
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EXHIBIT 10.14
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities to be offered by the Purchasers have
been prepared by the Company. Such preliminary offering circular and
offering circular, as supplemented as of the date of this Agreement,
together with any other document approved by the Company for use in
connection with the contemplated resale of the Offered Securities are
hereinafter collectively referred to as the "Offering Document". On the
date of this Agreement, the Offering Document does not include any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Offering
Document based upon written information furnished to the Company by any
Purchaser through Credit Suisse First Boston Corporation ("CSFBC")
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b).
(b) The Company and NDC have been duly incorporated and are
existing corporations in good standing under the laws of the State of
Delaware and the State of Nebraska, respectively, with power and
authority (corporate and other) to own their respective properties and
conduct their respective businesses as described in the Offering
Document; and the Company is duly qualified to do business as foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of business requires such
qualification except where the failure to so qualify would not have a
material adverse effect on the business or financial condition of the
Company and its Subsidiaries, taken as a whole.
(c) Each subsidiary which meets the definition of "Significant
Subsidiary" contained in Item 101(w) of
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EXHIBIT 10.14
Regulation S-X promulgated by the Commission (each, a "Subsidiary") of
the Company has been duly incorporated and is an existing corporation
in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Offering
Document; and each Subsidiary is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification except where the failure to so qualify
would not have a material adverse effect on the business or financial
condition of the Company and its Subsidiaries taken as a whole; all of
the issued and outstanding capital stock of each Subsidiary has been
duly authorized and validly issued and is fully paid and nonassessable
except as Section 180.0622(2)(b) of the Wisconsin Statutes may be
applicable; and the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(d) The Indenture has been duly authorized; the Offered
Securities have been duly authorized; and when the Offered Securities
are delivered and paid for pursuant to this Agreement on the Closing
Date (as defined below), the Indenture will have been duly executed and
delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the description
thereof contained in the Offering Document and the Indenture and such
Offered Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
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EXHIBIT 10.14
(e) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and conforms in all
material respects to the description thereof contained in the Offering
Document. The Registration Rights Agreement constitutes a valid and
legally binding obligation of the Company.
(f) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Purchaser for a brokerage commission, finder's fee or other like
payment in connection with the issuance and sale of the Offered
Securities by the Company.
(g) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement
in connection with the issuance and sale of the Offered Securities by
the Company.
(h) The execution, delivery and performance of the Operative
Documents and the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof will not result in a
material breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company, any Subsidiary, or NDC or any of
their properties, or any agreement or instrument to which the Company,
any Subsidiary or NDC is a party or by which the Company, any
Subsidiary or NDC is bound or to which any of the properties of the
Company, any Subsidiary or NDC is subject, or the charter or by-laws of
the Company, any Subsidiary or NDC, and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
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EXHIBIT 10.14
(i) This Agreement has been duly authorized, executed and
delivered by the Company.
(j) Except as disclosed in the Offering Document, the Company,
the Subsidiaries and NDC have good and marketable title to all real
properties and all other properties and assets owned by them, in each
case free from liens, encumbrances and defects that would materially
affect the value thereof or materially interfere with the use made or
to be made thereof by them; and except as disclosed in the Offering
Document, the Company, the Subsidiaries and NDC hold any leased real or
personal property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made thereof
by them.
(k) The Company, the Subsidiaries and NDC possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company, any Subsidiary or NDC,
would individually or in the aggregate have a material adverse effect
on the Company and the Subsidiaries taken as a whole, or NDC.
(l) No labor dispute with the employees of the Company, any
Subsidiary or NDC exists or, to the knowledge of the Company, is
imminent that might have a material adverse effect on the Company and
the Subsidiaries taken as a whole or NDC.
(m) The Company, the Subsidiaries and NDC own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
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EXHIBIT 10.14
"intellectual property rights") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company, the Subsidiaries or NDC would
individually or in the aggregate have a material adverse effect on the
Company and the Subsidiaries taken as a whole, or NDC.
(n) Except as disclosed in the Offering Document, neither the
Company, any of the Subsidiaries or NDC is in violation of any statute,
any rule, regulation, decision or order of any governmental agency or
body or any court, domestic or foreign, relating to the use, disposal
or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"),
owns or operates any real property contaminated with any substance that
is subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in
the aggregate have a material adverse effect on the Company and the
Subsidiaries taken as a whole or NDC; and the Company is not aware of
any pending investigation which might lead to such a claim.
(o) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company,
the Subsidiaries of or NDC or any of their respective properties that,
if determined adversely to the Company, any Subsidiary of the Company
or NDC, would individually or in the aggregate have a material adverse
effect on the condition (financial or other), business, properties or
results of operations of the Company and the
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EXHIBIT 10.14
Subsidiaries taken as a whole or NDC or would materially and adversely
affect the ability of the Company to perform its obligations under any
of the Operative Documents, or which are otherwise material in the
context of the sale of the Offered Securities; and no such actions,
suits or proceedings are threatened or, to the Company's knowledge,
contemplated.
(p) The financial statements included in the Offering Document
present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and, except as
otherwise disclosed in the Offering Document, such financial statements
have been prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis; and the
assumptions used in preparing the pro forma financial statements
included in the Offering Documents provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(q) The financial statements of NDC included in the Offering
Document present fairly the financial position of NDC as of the dates
shown and its results of operations and cash flows for the periods
shown, and such financial statements have been prepared in conformity
with the generally accepted accounting principles in the United States
applied on a consistent basis.
(r) Except as disclosed in the Offering Document, since the
date of the latest audited financial statements included in the
Offering Document there has been no material adverse change, nor any
development or
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EXHIBIT 10.14
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and the Subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Offering Document, there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(s) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "Investment Company Act"); and the
Company is not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as
described in the Offering Document, will not be an "investment company"
as defined in the Investment Company Act.
(t) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities are
listed on any national securities exchange registered under Section 6
of the United States Securities Exchange Act of 1934 ("Exchange Act")
or quoted in a U.S. automated inter-dealer quotation system.
(u) The offer and sale of the Offered Securities in the manner
contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act; and it is not necessary to qualify
an indenture in respect of the Offered Securities under the United
States Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act").
(v) Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf (i) has, within the six-month
period prior to the date hereof, offered or sold in the United States
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EXHIBIT 10.14
or to any U.S. person (as such terms are defined in Regulation S under
the Securities Act) the Offered Securities, or any security of the same
class or series as the Offered Securities or (ii) has offered or will
offer or sell the Offered Securities (A) in the United States by means
of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act or (B) with respect to
any such securities sold in reliance on Rule 903 of Regulation S
("Regulation S") under the Securities Act, by means of any directed
selling efforts within the meaning of Rule 902(b) of Regulation S. The
Company, its affiliates and any person acting on its or their behalf
have complied and will comply with the offering restrictions
requirement of Regulation S. The Company has not entered and will not
enter into any contractual arrangement with respect to the distribution
of the Offered Securities except for this Agreement.
(w) The execution, delivery and performance by the Company,
the Subsidiaries and NDC of their respective obligations under the
Asset Purchase Agreement and the Acquisition will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule, regulation or order of
any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company, any Subsidiary or NDC or any of
their properties, or any agreement or instrument to which the Company,
any Subsidiary or NDC is a party or by which the Company, any
Subsidiary or NDC is bound or to which any of the properties of the
Company, any subsidiary of the Company or NDC is subject, or the
charter or by-laws of the Company, any subsidiary of the Company or
NDC.
(x) The Asset Purchase Agreement has been duly authorized,
executed and delivered by the Company and
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EXHIBIT 10.14
conforms in all material respects to the descriptions thereof in the
Offering Document.
(y) The Asset Purchase Agreement, assuming due execution and
delivery by the other parties thereto, constitutes a valid and legally
binding obligation of the Company and is enforceable against the
Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(z) The Company has delivered to the Purchasers true and
correct copies of the Asset Purchase Agreement, in the form as
originally executed, and there have been no amendments or waivers
thereto or in the exhibits or schedules thereto other than those as to
which the Purchasers shall have been advised.
(aa) The Transactions have been duly authorized and will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, or any agreement or instrument to
which the Company or any such subsidiary is a party or by which the
Company or any subsidiary is a party or by which the Company or any
subsidiary is bound or to which any of the properties of the Company or
any subsidiary is subject, or the charter or by-laws of the Company or
any such subsidiary.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not
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EXHIBIT 10.14
jointly, to purchase from the Company, at a purchase price of 97% of the
principal amount thereof plus accrued interest from June 18, 1998 to the Closing
Date (as hereinafter defined), the respective principal amounts of Offered
Securities set forth opposite the names of the several Purchasers in Schedule A
hereto.
The Company will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global securities in
definitive form (the "Global Securities") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any Global Securities will be held
only in book-entry form through DTC, except in the limited circumstances
described in the Offering Document. Payment for the Offered Securities shall be
made by the Purchasers in Federal (same day) funds by official check or checks
or wire transfer to an account at a bank acceptable to CSFBC drawn to the order
of the Company at the office of Cravath, Swaine & Moore at 10:00 A.M. (New York
time), on June 23, 1998, or at such other time not later than seven full
business days thereafter as CSFBC and the Company determine, such time being
herein referred to as the "Closing Date", against delivery to the Trustee as
custodian for DTC and Euroclear of the Global Securities representing all of the
Offered Securities. The Global Securities will be made available for checking at
the above office of Cravath, Swaine & Moore at least 24 hours prior to the
Closing Date.
4. Representations by Purchasers; Resale by Purchasers. (a) Each
Purchaser severally represents and warrants to the Company that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may
not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with
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EXHIBIT 10.14
Regulation S or pursuant to an exemption from the registration
requirements of the Securities Act. Each Purchaser severally represents
and agrees that it has offered and sold the Offered Securities, and
will offer and sell the Offered Securities as part of its distribution
or at any time only in accordance with Rule 903 or Rule 144A under the
Securities Act ("Rule 144A"). Accordingly, neither such Purchaser nor
its affiliates, nor any persons acting on its or their behalf, have
engaged or will engage in any directed selling efforts with respect to
the Offered Securities, and such Purchaser, its affiliates and all
persons acting on its or their behalf have complied and will comply
with the offering restrictions requirement of Regulation S. Each
Purchaser severally agrees that, at or prior to confirmation of sale of
the Offered Securities, other than a sale pursuant to Rule 144A, such
Purchaser will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that
purchases the Offered Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons in accordance with
Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meanings given to them by
Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for
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EXHIBIT 10.14
any such arrangements with the other Purchasers or affiliates of the
other Purchasers or with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United
States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act,
including, but not limited to (i) any advertisement, article, notice or
other communication published in any newspaper, magazine or similar
media or broadcast over television or radio, or (ii) any seminar or
meeting whose attendees have been invited by any general solicitation
or general advertising. Each Purchaser severally agrees, with respect
to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or
otherwise prior to settlement of such resale a notice to the effect
that the resale of such Offered Securities has been made in reliance
upon the exemption from the registration requirements of the Securities
Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees
that (i) it has not offered or sold and prior to the date six months
after the date of issue of the Offered Securities will not offer or
sell any Offered Securities to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Act 1986 with respect
to anything done by it in relation to the Offered Securities in, from
or otherwise involving the
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EXHIBIT 10.14
United Kingdom; and (iii) it has only issued or passed on and will only
issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Offered Securities to a person who is
of a kind described in Article 11(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1996 or is a person to
whom such document may otherwise lawfully be issued or passed on.
5. Certain Agreements of the Company. The Company agrees with the
several Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to
amend or supplement the Offering Document and will not effect such
amendment or supplementation without CSFBC's consent (which consent
shall not be unreasonably withheld). If, at any time prior to the
completion of the resale of the Offered Securities by the Purchasers,
any event occurs as a result of which the Offering Document as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, the Company promptly will notify CSFBC of
such event and promptly will prepare, at its own expense, an amendment
or supplement which will correct such statement or omission. Neither
CSFBC's consent to, nor the Purchasers' delivery to offerees or
investors of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(b) The Company will furnish to CSFBC copies of any
preliminary offering circular, the offering circular and all amendments
and supplements to such documents, in each case as soon as available
and in such quantities as CSFBC requests, and the Company will furnish
to CSFBC on the date hereof three copies of the Offering Document
signed by a duly authorized officer
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EXHIBIT 10.14
of the Company, one of which will include the independent accountants'
reports therein manually signed by such independent accountants. At any
time when the Company is not subject to Section 13 or 15(d) of the
Exchange Act, the Company will promptly furnish or cause to be
furnished to CSFBC (and, upon request, to each of the other Purchasers)
and, upon request of holders and prospective purchasers of the Offered
Securities, to such holders and purchasers, copies of the information
required to be delivered to holders and prospective purchasers of the
Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto) in order to permit compliance with
Rule 144A in connection with resales by such holders of the Offered
Securities. The Company will pay the expenses of printing and
distributing to the Purchasers all such documents.
(c) The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their eligibility
for investment under the laws of such jurisdictions in the United
States and Canada as CSFBC designates and will continue such
qualifications in effect so long as required for the resale of the
Offered Securities by the Purchasers, provided that the Company will
not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such state.
(d) During the period of ten years (or such lesser period as
the Offered Securities or Exchange Securities (as defined in the
Registration Rights Agreement) are outstanding) hereafter, the Company
will furnish to CSFBC and, upon request, to each of the other
Purchasers, as soon as practicable after the end of each fiscal year, a
copy of its annual report to shareholders for such year; and the
Company will furnish to CSFBC and, upon request, to each of the other
Purchasers (i) as soon as available, a copy of each report or other
document furnished to the
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EXHIBIT 10.14
Commission or mailed to its shareholders generally, and (ii) from time
to time, such other information concerning the Company as CSFBC may
reasonably request.
(e) During the period of two years (or such lesser period as
the Offered Securities or Exchange Securities are outstanding) after
the Closing Date, the Company will, upon request, furnish to CSFBC,
each of the other Purchasers and any holder of Offered Securities a
copy of the restrictions on transfer applicable to the Offered
Securities.
(f) During the period of two years (or such lesser period as
the Offered Securities or Exchange Securities are outstanding) after
the Closing Date, the Company will not, and will not permit any of its
affiliates (as defined in Rule 144 under the Securities Act) to, resell
any of the Offered Securities that have been reacquired by any of them.
(g) During the period of two years (or such lesser period as
the Offered Securities or Exchange Securities are outstanding) after
the Closing Date, the Company will not be or become, an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act.
(h) The Company will pay all expenses incidental to the
performance of its obligations under the Operative Documents, including
(i) the fees and expenses of the Trustee and its professional advisers;
(ii) all expenses in connection with the execution, issue,
authentication, packaging and initial delivery of the Offered
Securities, the preparation and printing of the Operative Documents,
the Offered Securities, the Offering Document and amendments and
supplements thereto, and any other document relating to the issuance,
offer, sale and delivery of the Offered
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EXHIBIT 10.14
Securities; (iii) the cost of qualifying the Offered Securities for
trading in The Portal(SM) Market ("PORTAL") and any expenses incidental
thereto; (iv) the cost of any advertising approved by the Company in
connection with the issue of the Offered Securities; (v) any expenses
(including fees and disbursements of counsel) incurred in connection
with qualification of the Offered Securities for sale under the laws of
such jurisdictions in the United States and Canada as CSFBC designates
and the printing of memoranda relating thereto; (vi) any fees charged
by investment rating agencies for the rating of the Offered Securities;
and (vii) expenses incurred in distributing preliminary offering
circulars and the offering circulars (including any amendments and
supplements thereto) to the Purchasers. The Company will also pay or
reimburse the Purchasers (to the extent incurred by them) for all
travel expenses of the Purchasers and the Company's officers and
employees and any other expenses of the Purchasers and the Company in
connection with attending or hosting meetings with prospective
purchasers of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have
notified the Company and the other Purchasers of the completion of the
resale of the Offered Securities, neither the Company nor any of its
affiliates has or will, either alone or with one or more other persons,
bid for or purchase for any account in which it or any of its
affiliates has a beneficial interest any Offered Securities or attempt
to induce any person to purchase any Offered Securities; and neither it
nor any of its affiliates will make bids or purchases for the purpose
of creating actual, or apparent, active trading in, or of raising the
price of, the Offered Securities.
(j) For a period of 180 days after the date of the initial
offering of the Offered Securities by the
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EXHIBIT 10.14
Purchasers, the Company will not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, any United States
dollar-denominated debt securities issued or guaranteed by the Company
and having a maturity of more than one year from the date of issue, or
publicly disclose the intention to make any such offer, sale, pledge or
disposition, without the prior written consent of CSFBC. The Company
will not at any time offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any securities under circumstances
where such offer, sale, pledge, contract or disposition would cause the
exemption afforded by Section 4(2) of the Securities Act or the safe
harbor of Regulation S thereunder to cease to be applicable to the
offer and sale of the Offered Securities.
(k) The Company will use its best efforts to have the Offered
Securities become eligible for the PORTAL trading system.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the
date of this Agreement, of Arthur Andersen LLP in form and substance
satisfactory to the Purchasers concerning the financial information
with respect to the Company set forth in the Offering Document.
(b) The Purchasers shall have received a letter, dated the
date of this Agreement, of KPMG Peat Marwick
19
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EXHIBIT 10.14
LLP (Milwaukee, WI) in form and substance satisfactory to the
Purchasers concerning the financial information with respect to the
Company set forth in the Offering Document.
(c) The Purchasers shall have received a letter, dated the
date of this Agreement, of KPMG Peat Marwick LLP (Omaha, NE) in form
and substance satisfactory to the Purchasers concerning the financial
information with respect to NDC set forth in the Offering Document.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of CSFBC,
be likely to prejudice materially the success of the proposed issue,
sale or distribution of the Offered Securities, whether in the primary
market or in respect of dealings in the secondary market, or (ii) (A)
any change, or any development or event involving a prospective change,
in the condition (financial or other), business, properties or results
of operations of the Company, the Subsidiaries or NDC which, in the
judgment of a majority in interest of the Purchasers including CSFBC,
is material and adverse and makes it impractical or inadvisable to
proceed with completion of the offering or the sale of and payment for
the Offered Securities; (B) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Securities Act), or any public announcement that any such organization
has under surveillance or review its rating of any debt securities of
the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating); (C) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum
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EXHIBIT 10.14
prices for trading on such exchange, or any suspension of trading of
any securities of the Company or NDC on any exchange or in the
over-the-counter market; (D) any banking moratorium declared by U.S.
Federal or New York authorities; or (E) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Purchasers including CSFBC, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the offering
or sale of and payment for the Offered Securities.
(e) The Purchasers shall have received an opinion, dated the
Closing Date, of Whyte Hirschboeck Dudek S.C., counsel for the Company,
substantially in the form of Annex A.
(f) The Purchasers shall have received from Cravath, Swaine &
Moore, counsel for the Purchasers, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Offering Document, the
exemption from registration for the offer and sale of the Offered
Securities by the Company to the several Purchasers and the resales by
the several Purchasers as contemplated hereby and other related matters
as CSFBC may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(g) The Purchasers shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the
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EXHIBIT 10.14
representations and warranties of the Company in this Agreement are
true and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, and that, subsequent to the
dates of the most recent financial statements in the Offering Document,
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, or NDC, except as
set forth in or contemplated by the Offering Document or as described
in such certificate.
(h) The Purchasers shall have received a letter, dated the
Closing Date, of each of Arthur Andersen LLP and KPMG Peat Marwick LLP
(Omaha, NE) which meets the requirements of subsection (a), (b) or (c)
of this Section, as the case may be, except that the specified date
referred to in such subsection will be a date not more than two
business days prior to the Closing Date for the purposes of this
subsection.
(i) Concurrently with or prior to the issuance and sale of the
Offered Securities by the Company, the Company shall have consummated
the Acquisition on terms that conform in all material respects to the
description thereof in the Offering Document and the Purchasers shall
have received (i) true and correct copies of all documents pertaining
to the Acquisition and (ii) a certificate, dated the Closing Date, of
the President or any Vice President and a principal financial or
accounting officer of the Company in which such officers, to the best
of their knowledge after reasonable investigation, shall state that the
Acquisition has been consummated on terms that conform in all material
respects to the description thereof in the Offering Document.
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EXHIBIT 10.14
(j) The Purchasers shall have received from the Company a
signed copy of the letter agreement between the Company and Lyonnaise
American Holding, Inc. in form and substance satisfactory to the
Purchasers.
The Company will furnish the Purchasers with such conformed copies of
such opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder,
whether in respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Purchaser against any losses, claims, damages or liabilities,
joint or several, to which such Purchaser may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any breach of any of the representations and warranties of the Company
contained herein or any untrue statement or alleged untrue statement of any
material fact contained in the Offering Document, or any amendment or supplement
thereto, or any related preliminary offering circular, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and will reimburse
each Purchaser for any legal or other expenses reasonably incurred by such
Purchaser in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Purchaser through CSFBC specifically
for use therein, it
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EXHIBIT 10.14
being understood and agreed that the only such information consists of the
information described as such in subsection (b) below.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Purchaser through CSFBC specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Purchaser consists of the following information in
the Offering Document furnished on behalf of each Purchaser: the last paragraph
at the bottom of the cover page concerning the terms of the offering by the
Purchasers, the legend concerning over-allotments and stabilizing on the inside
front cover page and the seventh paragraph under the caption "Plan of
Distribution".
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
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EXHIBIT 10.14
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Purchasers on the other from the offering of the Offered
Securities or (ii) if the
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EXHIBIT 10.14
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 Purchasers on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Purchasers on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total discounts
and commissions received by the Purchasers from the Company under this
Agreement. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Purchasers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Offered Securities purchased by it were
resold exceeds the amount of any damages which such Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. The Purchasers' obligations in this subsection (d) to
contribute are several in proportion to their respective purchase obligations
and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may
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EXHIBIT 10.14
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Purchaser within the meaning of the Securities
Act or the Exchange Act; and the obligations of the Purchasers under this
Section shall be in addition to any liability which the respective Purchasers
may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Offered Securities hereunder and the aggregate
principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, CSFBC may make arrangements satisfactory
to the Company for the purchase of such Offered Securities by other persons,
including any of the Purchasers, but if no such arrangements are made by such
the Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to CSFBC and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Purchaser or the
Company, except as provided in Section 9. As used in this Agreement, the term
"Purchaser" includes any person substituted for a Purchaser under this Section.
Nothing herein will relieve a defaulting Purchaser from liability for its
default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
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EXHIBIT 10.14
Company or its officers and of the several Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Purchaser, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Purchasers is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Purchasers pursuant to Section 7 shall remain
in effect. If the purchase of the Offered Securities by the Purchasers is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (C), (D) or (E) of Section 6(b)(ii), the Company will reimburse the
Purchasers for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to
the Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department--Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 7800 North 113th Street,
Milwaukee, WI 53224, Attention: Jeffrey A. Miller; provided, however, that any
notice to a Purchaser pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or
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EXHIBIT 10.14
obligation hereunder, except that holders of Offered Securities shall be
entitled to enforce the agreements for their benefit contained in the second and
third sentences of Section 5(b) hereof against the Company as if such holders
were parties thereto.
12. Representation of Purchasers. You will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by you jointly or by CSFBC will be binding upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to
principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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EXHIBIT 10.14
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
AQUA-CHEM, INC.
by /s/ JA Miller
------------------------------
Name: Jeffrey A. Miller
Title: Chairman of the
Board, President and
Chief Executive
Officer
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, STEARNS & CO. INC.
by CREDIT SUISSE FIRST BOSTON CORPORATION
by
-------------------------------
Name:
Title:
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EXHIBIT 10.14
SCHEDULE A
PRINCIPAL
AMOUNT OF
OFFERED
MANAGER SECURITIES
- ------- ----------
Credit Suisse First Boston Corporation $81,250,000
Bear, Stearns & Co. Inc. ............. 43,750,000
============
Total...... $125,000,000
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EXHIBIT 10.14
ANNEX A
32
Form of Legal Opinion