Exhibit 2.3
EXECUTION COPY
$300,000,000
ALLEGHENY TECHNOLOGIES INCORPORATED
8.375 % NOTES DUE 2011
Purchase Agreement
December 13, 2001
J.P. Morgan Securities Inc.
Banc of America Securities LLC
Salomon Smith Barney Inc.
PNC Capital Markets, Inc.
BNY Capital Markets, Inc.
Mizuho International plc
Tokyo-Mitsubishi International plc
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Allegheny Technologies Incorporated, a Delaware corporation (the
"Company"), proposes to issue and sell to the several Initial Purchasers listed
in Schedule I hereto (the "Initial Purchasers") $300,000,000 principal amount of
its 8.375% Notes due 2011 (the "Securities"). The Securities will be issued
pursuant to the provisions of an Indenture to be dated as of December 18, 2001
(the "Indenture") between the Company and The Bank of New York, as trustee (the
"Trustee").
The sale of the Securities to the Initial Purchasers will be made
without registration of the Securities under the Securities Act of 1933, as
amended (the "Securities Act"), in reliance upon exemptions therefrom.
In connection with the sale of the Securities, the Company has prepared
a preliminary offering memorandum, dated December 10, 2001 (the "Preliminary
Memorandum") and has prepared a final offering memorandum dated the date hereof
(the "Final Memorandum" and, with the Preliminary Memorandum, collectively, the
"Offering Memorandum"), for the information of the Initial Purchasers and for
delivery to prospective purchasers of the Securities.
The purchasers of the Securities and their direct and indirect
transferees will be entitled to the benefits of a Registration Rights Agreement,
to be dated as of the Closing Date (as defined
below) and to be substantially in the form attached hereto as Exhibit A (the
"Registration Rights Agreement"), pursuant to which the Company will file one or
more registration statements with the Securities and Exchange Commission (the
"Commission") registering with the Commission the Securities or the Exchange
Securities referred to (and as defined) in such Registration Rights Agreement.
The Company hereby agrees with the Initial Purchasers as follows:
1. The Company agrees to issue and sell the Securities to the several
Initial Purchasers as hereinafter provided, and each Initial Purchaser, upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Company the respective principal amount of Securities set forth
opposite such Purchaser's name in Schedule I hereto at a price (the "Purchase
Price") equal to 97.791% of their principal amount plus accrued interest, if
any, from December 18, 2001 to the date of payment and delivery.
2. The Company understands that the Initial Purchasers intend (i) to
offer privately and pursuant to Regulation S under the Securities Act
("Regulation S") their respective portions of the Securities as soon after this
Agreement has become effective as in the judgment of the Initial Purchasers is
advisable and (ii) initially to offer the Securities upon the terms set forth in
the Offering Memorandum.
The Company confirms that it has authorized the Initial Purchasers,
subject to the restrictions set forth below, to distribute copies of the
Offering Memorandum in connection with the offering of the Securities. Each
Initial Purchaser hereby makes to the Company the following representations and
agreements:
(i) it is a "qualified institutional buyer" within the meaning
of Rule 144A under the Securities Act; and
(ii) (A) it will not solicit offers for, or offer to sell, the
Securities by any form of general solicitation or general advertising
(as those terms are used in Regulation D under the Securities Act
("Regulation D")) and (B) it will solicit offers for the Securities
only from, and will offer the Securities only to, persons who it
reasonably believes to be (x) in the case of offers inside the United
States "qualified institutional buyers" within the meaning of Rule 144A
under the Securities Act; and (y) in the case of offers outside the
United States, to persons other than U.S. persons ("foreign
purchasers", which term shall include dealers or other professional
fiduciaries in the United States acting on a discretionary basis for
foreign beneficial owners (other than an estate or trust)) that, in
each case, in purchasing the Securities are deemed to have represented
and agreed as provided in the Offering Memorandum.
With respect to offers and sales outside the United States, as described in
clause (ii)(B)(y) above, each Initial Purchaser hereby represents and agrees
with the Company that:
(i) it understands that no action has been or will be taken by
the Company that would permit a public offering of the Securities, or
possession or distribution of the
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Offering Memorandum or any other offering or publicity material
relating to the Securities, in any country or jurisdiction where action
for that purpose is required;
(ii) it will comply with all applicable laws and regulations
in each jurisdiction in which it acquires, offers, sells or delivers
Securities or has in its possession or distributes the Offering
Memorandum or any such other material, in all cases at its own expense;
(iii) it understands that the Securities have not been and
will not be registered under the Securities Act and may not be offered
or sold within the United States or to, or for the account or benefit
of, U.S. persons except in accordance with Regulation S or pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act;
(iv) it has offered the Securities and will offer and sell the
Securities (x) as part of its distribution at any time and (y)
otherwise until 40 days after the later of the commencement of the
Offering and the Closing Date, only in accordance with Rule 903 of
Regulation S. Accordingly, neither such Initial Purchaser, nor any of
its Affiliates (as defined in Rule 501(b) of Regulation D), nor any
persons acting on its behalf has engaged or will engage in any directed
selling efforts (within the meaning of Regulation S) with respect to
the Securities, and such Initial Purchaser, its Affiliates and any such
persons have complied and will comply with the offering restrictions
requirement of Regulation S; and
(v) it agrees that, at or prior to confirmation of sales of
the Securities, it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that
purchases 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 and sold within the United States or to, or for
the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise prior to 40 days
after the closing of the offering, except in either case in
accordance with Regulation S (or Rule 144A, if available)
under the Securities Act. Terms used above have the meaning
given to them by Regulation S."
Terms used in this Section 2 and not otherwise defined in this
Agreement have the meanings given to them by Regulation S.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company, to the
Initial Purchasers on December 18, 2001, or at such other time on the same or
such other date, not later than the fifth Business Day thereafter, as the
Initial Purchasers and the Company may agree upon in writing. The time and date
of such payment are referred to herein as the "Closing Date". As used herein,
the term "Business Day" means any day other than a day on which banks are
permitted or are required to be closed in New York City.
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Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Initial Purchasers of the Securities of one or more global notes
(collectively, the "Global Note") representing the Securities, with any transfer
taxes payable in connection with the transfer to the Initial Purchasers of the
Securities duly paid by the Company. The Global Note will be made available for
inspection by the Initial Purchasers at the office of Cravath, Swaine & Moore,
825 Eighth Avenue, New York, NY, 10019 not later than 1:00 P.M., New York City
time, on the Business Day prior to the Closing Date.
4. The Company represents and warrants to each Initial Purchaser that:
(a) the Preliminary Memorandum did not, as of its date, and
the Final Memorandum will not, in the form used by the Initial
Purchasers to confirm sales of the Securities and as of the Closing
Date, contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in
light of the circumstances existing at such dates, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information relating to any Initial Purchaser furnished
to the Company in writing by such Initial Purchaser expressly for use
therein (the "Initial Purchasers' Information");
(b) the documents incorporated by reference in the Final
Memorandum, when they were filed with the Commission, conformed in all
material respects to the requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act") and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the Final
Memorandum, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange
Act, and will not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading;
(c) the financial statements, and the related notes thereto,
included or incorporated by reference in the Offering Memorandum
present fairly the consolidated financial position of the Company and
its consolidated subsidiaries as of the dates indicated and the results
of their operations and the changes in their consolidated cash flows
for the periods specified; and said financial statements have been
prepared in conformity with generally accepted accounting principles
and practices applied on a consistent basis;
(d) since the respective dates as of which information is
given in the Preliminary Memorandum and Final Memorandum, there has not
been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries, or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as
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a whole, and neither the Company nor any of its subsidiaries has
entered into any transaction or agreement (whether or not in the
ordinary course of business) material to the Company and its
subsidiaries taken as a whole;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Offering Memorandum, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the general
affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect");
(f) each of the Company's "significant subsidiaries" (within
the meaning of Rule 1-02 of Regulation S-X) has been duly incorporated
and is validly existing as a corporation under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Offering Memorandum, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in which it owns or leases
properties or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a Material Adverse Effect; and all the
outstanding shares of capital stock of each significant subsidiary"
(within the meaning of Rule 1-02 of Regulation S-X) of the Company have
been duly authorized and validly issued, are fully-paid and
non-assessable, and (except for any directors' qualifying shares and
minority interests) are owned by the Company, directly or indirectly,
free and clear of all liens, encumbrances, security interests and
claims;
(g) this Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company;
(h) the Securities have been duly authorized, and when issued
and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
binding obligations of the Company entitled to the benefits provided by
the Indenture, except to the extent that enforceability thereof 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); the Indenture has been
duly authorized and, when executed and delivered by the Company and the
Trustee, the Indenture will constitute a valid and binding instrument,
except to the extent that enforceability thereof 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 the Securities and
the Indenture will conform to the descriptions thereof in the Offering
Memorandum;
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(i) the Registration Rights Agreement has been duly authorized
and when executed and delivered by Company and the Initial Purchasers
will constitute a valid and binding agreement, enforceable against the
Company 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 the Registration Rights Agreement will conform to the description
thereof in the Offering Memorandum;
(j) none of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale
of the Securities) will violate or result in a violation of Section 7
of the Exchange Act, or any regulation promulgated thereunder,
including, without limitation, Regulations T, U, and X of the Board of
Governors of the Federal Reserve System;
(k) neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Certificate of Incorporation or
By-Laws or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults
which individually and in the aggregate would not result in a Material
Adverse Effect; the issue and sale of the Securities and the
performance by the Company of all its obligations under the Securities,
the Indenture, the Registration Rights Agreement and this Agreement and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will any such action result in any violation of the
provisions of the Certificate of Incorporation or the By-Laws of the
Company or any of its subsidiaries or any applicable law or statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company, its subsidiaries or any of
their respective properties, except for conflicts, breaches, defaults
or violations which would not, singly or in the aggregate, have a
Material Adverse Effect; and no consent, approval, authorization,
order, license, registration or qualification of or with any such court
or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the transactions
contemplated by this Agreement, the Registration Rights Agreement or
the Indenture, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as may be required under (A)
state securities or Blue Sky Laws in connection with the purchase and
distribution of the Securities by the Initial Purchasers or (B) under
the Securities Act with respect to the registration of the Exchange
Securities pursuant to the terms of the Registration Rights Agreement;
(l) other than as set forth or incorporated by reference in
the Final Memorandum, there are no legal or governmental
investigations, actions, suits or
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proceedings pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries or any of
their respective properties or to which the Company or any of its
subsidiaries is or may be a party or to which any property of the
Company or any of its subsidiaries is or may be the subject which, if
determined adversely to the Company or any of its subsidiaries, could
individually or in the aggregate have, or reasonably be expected to
have, a Material Adverse Effect, and to the best of the Company's
knowledge, no such proceedings are threatened by governmental
authorities or threatened by others;
(m) neither the Company, nor any affiliate (as defined in Rule
501(b) of Regulation D) of the Company has directly, or through any
agent, sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Securities
Act) which is or will be integrated with the sale of the Securities in
a manner that would require the registration under the Securities Act
of the offering contemplated by the Offering Memorandum or
qualification under the Trust Indenture Act of 1939, as amended (the
"TIA");
(n) none of the Company, any affiliate of the Company or any
person acting on its or their behalf has offered or sold the Securities
by means of any general solicitation or general advertising within the
meaning of Rule 502(c) under the Act or, by means of any directed
selling efforts within the meaning of Rule 902 under the Securities Act
and the Company, any affiliate of the Company and any person acting on
its or their behalf has complied with and will implement the "offering
restrictions" requirements of Regulation S.
(o) the Securities satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act;
(p) assuming the accuracy of the representations of the
Initial Purchasers contained in Section 2 hereof, it is not necessary
in connection with the offer, sale and delivery of the Securities in
the manner contemplated by this Agreement to register the Securities
under the Securities Act or to qualify an indenture under the Trust
Indenture Act of 1939, as amended;
(q) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Memorandum, will not be an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended;
(r) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Securities Act;
(s) the Company and its subsidiaries have good and marketable
title in fee simple to all items of real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except
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such as are described or referred to in the Offering Memorandum or such
as do not materially affect the value of such property and do not
interfere with the use made or proposed to be made of such property by
the Company and its subsidiaries or which would not have a Material
Adverse Effect; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid, existing
and enforceable leases with such exceptions as are not material and do
not interfere with the use made or proposed to be made of such property
and buildings by the Company or its subsidiaries or which would not
have a Material Adverse Effect;
(t) except as would not, singly or in the aggregate, have a
Material Adverse Effect, the Company and its subsidiaries own, possess
or can acquire on reasonable terms, adequate trademarks, trade names
and other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property (collectively,
"Intellectual Property Rights") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any written 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 or any of its subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect;
(u) the Company and its subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be
filed and have paid all taxes shown thereon and all assessments
received by them or any of them to the extent that such taxes have
become due and are not being contested in good faith; and (i) except as
disclosed in the Offering Memorandum there is no tax deficiency which
has been or might reasonably be expected to be asserted against the
Company or any subsidiary which would have a Material Adverse Effect
and (ii) the Company and its subsidiaries have complied in all respects
with the rulings received from the Internal Revenue Service in
connection with the Company's 1999 restructuring and spin off;
(v) each of the Company and its subsidiaries owns, possesses
or has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case may be, and
to operate its properties and to carry on its business as conducted as
of the date hereof, and neither the Company nor any such subsidiary has
received any actual notice of any proceeding relating to revocation or
modification of any such license, permit, certificate, consent, order,
approval or other authorization, except as described in the Offering
Memorandum, and each of the Company and its subsidiaries is in
compliance with all laws and regulations relating to the conduct of its
business as conducted as of the date hereof, except where the failure
to own, posses or obtain such licenses, permits, certificates,
consents, orders, approvals and other authorizations, to make such
declarations and filings, to be party to any such proceedings, or to
comply with such laws and regulations would not, singly or in the
aggregate, have a Material Adverse Effect;
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(w) there are no existing or, to the best knowledge of the
Company, threatened labor disputes with the employees of the Company or
any of its subsidiaries which are likely to have a Material Adverse
Effect;
(x) the Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
Material Adverse Effect;
(y) in the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its
subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review,
the Company has reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a Material
Adverse Effect;
(z) each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as
amended, ("ERISA") that is maintained, administered or contributed to
by the Company or any of its affiliates for employees or former
employees of the Company and its affiliates has been maintained in
compliance with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited to
ERISA and the Internal Revenue Code of 1986, as amended, (the "Code").
No prohibited transaction, within the meaning of Section 406 of ERISA
or Section 4975 of the Code has occurred with respect to any such plan
excluding transactions effected pursuant to a statutory or
administrative exemption. For each such plan which is subject to the
funding rules of Section 412 of the Code or Section 302 of ERISA, no
"accumulated funding deficiency" as defined in Section 412 of the Code
has been incurred, whether or not waived, and the fair market value of
the assets of each such plan (excluding for these purposes accrued but
unpaid contributions) exceeded the present value of all benefits
accrued under such plan determined using reasonable actuarial
assumptions.
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5. The Company covenants and agrees with each of the several Initial
Purchasers as follows:
(a) to deliver to the Initial Purchasers as many copies of the
Preliminary Memorandum and the Final Memorandum (including all
amendments and supplements thereto) as the Initial Purchasers may
reasonably request;
(b) before distributing any amendment or supplement to the
Offering Memorandum, to furnish to the Initial Purchasers a copy of the
proposed amendment or supplement for review and not to distribute any
such proposed amendment or supplement to which the Initial Purchasers
reasonably object;
(c) if, at any time prior to the completion of the initial
placement of the Securities, any event shall occur as a result of which
it is necessary to amend or supplement the Offering Memorandum in order
to make the statements therein, in the light of the circumstances when
the Offering Memorandum is delivered to an Initial Purchaser, not
misleading, or if it is necessary to amend or supplement the Offering
Memorandum to comply with law, forthwith to prepare and furnish, at the
expense of the Company, to the Initial Purchasers and to the dealers
(whose names and addresses the Initial Purchasers will furnish to the
Company) to which Securities may have been sold by the Initial
Purchasers on behalf of the Initial Purchasers and to any other dealers
upon request, such amendments or supplements to the Offering Memorandum
as may be necessary so that the statements in the Offering Memorandum
as so amended or supplemented will not, in the light of the
circumstances when the Offering Memorandum is delivered to a purchaser,
be misleading or so that the Offering Memorandum will comply with law;
(d) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Initial Purchasers shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution
of the Securities; provided that the Company shall not be required to
file a general consent to service of process in any jurisdiction;
(e) so long as the Securities are outstanding, to furnish to
the Initial Purchasers copies of all reports or other communications
(financial or other) furnished to holders of Securities, and copies of
any reports and financial statements furnished to or filed with the
Commission or any national securities exchange or inter-dealer
quotation system;
(f) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell, or otherwise dispose of any
debt securities of or guaranteed by the Company which are substantially
similar to the Securities;
(g) to use the net proceeds received by the Company from the
sale of the Securities pursuant to this Agreement in the manner
specified in the Offering Memorandum under the caption "Use of
Proceeds";
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(h) if requested by you, to use its best efforts to cause the
Securities to be eligible for the PORTAL trading system of the National
Association of Securities Dealers, Inc.;
(i) to furnish to the holders of the Securities as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries
certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the date of
the Offering Memorandum), consolidated summary financial information of
the Company and its subsidiaries of such quarter in reasonable detail;
(j) during the period of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as
defined in Rule 144 under the Securities Act) to, resell any of the
Securities which constitute "restricted securities" under Rule 144 that
have been reacquired by any of them;
(k) whether or not the transactions contemplated on this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality of
the foregoing, all fees, costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the
Securities, including any expenses of the Trustee, (ii) incident to the
preparation, printing and distribution of the Preliminary Memorandum
and the Final Memorandum (including in each case all exhibits,
amendments and supplements thereto), (iii) incurred in connection with
the registration or qualification and determination of eligibility for
investment of the Securities under the laws of such jurisdictions as
the Initial Purchasers may designate (including fees of counsel for the
Initial Purchasers and their disbursements), (iv) in connection with
the approval for trading of the Securities on any securities exchange
or inter-dealer quotation system (as well as in connection with the
designation of the Securities as PORTAL securities, if so requested),
(v) in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the Indenture, any
Preliminary and Supplemental Blue Sky Memoranda and any Legal
Investment Survey and the furnishing to Initial Purchasers and dealers
of copies of the Offering Memorandum, including mailing and shipping,
as herein provided, (vi) related to any filing with the National
Association of Securities Dealers, Inc., (vii) payable to rating
agencies in connection with the rating of the Securities, and (viii)
any expenses incurred by the Company in connection with a "road show"
presentation to potential investors;
(l) while the Securities remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company will, during any period in which it is not
subject to Section 13 or 15(d) under the Exchange Act, make available
to the purchasers and any holder of Securities in connection with any
sale thereof and any prospective purchaser of Securities and securities
analysts, in each case
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upon request, the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Securities Act (or any
successor thereto);
(m) the Company will not take any action prohibited by
Regulation M under the Exchange Act, in connection with the
distribution of the Securities contemplated hereby;
(n) none of the Company, any of its affiliates (as defined in
Rule 501(b) under the Securities Act) or any person acting on behalf of
the Company or such affiliate will solicit any offer to buy or offer or
sell the Securities by means of any form of general solicitation or
general advertising, including: (i) any advertisement, article, notice
or other communication published in any newspaper, magazine or similar
medium or broadcast over television or radio; and (ii) any seminar or
meeting whose attendees have been invited by any general solicitation
or general advertising;
(o) none of the Company, any of its affiliates (as defined in
Rule 144(a)(1) under the Securities Act) or any person acting on behalf
of any of the foregoing will engage in any directed selling efforts
with respect to the Securities within the meaning of Regulation S under
the Securities Act;
(p) none of the Company, any of its affiliates (as defined in
Regulation 501(b) of Regulation D under the Securities Act) or any
person acting on behalf of the Company or such affiliate will sell,
offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act) which will
be integrated with the sale of the Securities in a manner which would
require the registration under the Securities Act of the Securities and
the Company will take all action that is appropriate or necessary to
assure that its offerings of other securities will not be integrated
for purposes of the Securities Act with the offerings contemplated
hereby;
(q) to comply with all of the terms and conditions of the
Registration Rights Agreement; and
(r) prior to any registration of the Securities pursuant to
the Registration Rights Agreement, or at such earlier time as may be so
required, to qualify the Indenture under the TIA, and to enter into any
necessary supplemental indentures in connection therewith.
6. The several obligations of the Initial Purchasers hereunder to
purchase the Securities on the Closing Date are subject to the performance by
the Company of its obligations hereunder and to the following additional
conditions:
(a) the representations and warranties of the Company
contained herein are true and correct on and as of the Closing Date as
if made on and as of the Closing Date and the Company shall have
complied with all agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
12
(b) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (iii) any
review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act;
(c) since the respective dates as of which information is
given in the Offering Memorandum there shall not have been any change
in the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change or any development
involving a prospective material adverse change, in or affecting the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth in the
Offering Memorandum (exclusive of any amendment or supplement thereto),
the effect of which in the judgment of the Initial Purchasers makes it
impracticable or inadvisable to proceed with the offering or the
delivery of the Securities on the Closing Date on the terms and in the
manner contemplated in the Offering Memorandum; and neither the Company
nor any of its subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by reference in
the Offering Memorandum any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth in
the Offering Memorandum (exclusive of any amendment or supplement
thereto);
(d) the Initial Purchasers shall have received on and as of
the Closing Date a certificate of either James L. Murdy, Executive Vice
President of the Company or Richard J. Harshman, Vice President and
Chief Financial Officer, satisfactory to the Initial Purchasers to the
effect set forth in subsections (a) and (b) of this Section and to the
further effect that such officer has carefully examined the Offering
Memorandum and there has not occurred any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole from that set forth
in the Offering Memorandum (exclusive of any amendment or supplement
thereto);
(e) Kirkpatrick & Lockhart LLP, counsel for the Company, shall
have furnished to the Initial Purchasers their written opinion, dated
the Closing Date, in form and substance satisfactory to the Initial
Purchasers, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with corporate
power and authority to own its properties and conduct its
business as described in the Offering Memorandum;
(ii) this Agreement has been duly authorized,
executed and delivered by the Company;
13
(iii) the Securities have been duly authorized,
executed and delivered by the Company and, when duly
authenticated in accordance with the terms of the Indenture
and delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement, will constitute
valid and binding obligations of the Company entitled to the
benefits provided by the Indenture, except to the extent that
such obligations 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 the Securities and the
Indenture conform to the descriptions thereof in the Offering
Memorandum;
(iv) the Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and
binding instrument of the Company, except to the extent that
enforceability thereof 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);
(v) the Registration Rights Agreement has been duly
authorized, executed and delivered by, and is a valid and
binding agreement of, the Company, except to the extent that
enforceability thereof 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 as
the enforceability thereof may be limited by considerations of
public policy;
(vi) The issue and sale of the Securities and the
performance by the Company of its obligations under the
Securities, the Indenture, the Registration Rights Agreement
and this Agreement and the consummation of the transactions
herein and therein contemplated will not result in a breach of
or violation any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its
subsidiaries is subject and that is listed as an exhibit to
the most recent Annual Report on Form 10-K of the Company or
subsequent Commission filings made by the Company pursuant to
Section 13 of the Exchange Act, nor will any such action
result in any violation of the provisions of the Certificate
of Incorporation or the By-Laws of the Company or any
applicable statute, rule or regulation (except that such
counsel may assume compliance with the Securities Act and
applicable state securities laws and except for the provisions
of Section 7 of this Agreement and Section 6 of the
Registration Rights Agreement, as to which such counsel need
express no opinion) of any governmental agency or body know to
such counsel having jurisdiction over the Company, any of its
subsidiaries or any of their respective properties;
14
(vii) no consent, approval, authorization, order,
license, registration or qualification of or with any court or
governmental agency or body is required for the issue and sale
of the Securities or the consummation of the other
transactions contemplated by this Agreement, the Registration
Rights Agreement or the Indenture, except such consents,
approvals, authorizations, registrations or qualifications as
may be required under (i) state securities or Blue Sky laws in
connection with the purchase and distribution of the
Securities by the Initial Purchasers or (ii) under the
Securities Act with respect to the registration of the
Exchange Securities pursuant to the terms of the Registration
Rights Agreement;
(viii) based upon the representations, warranties and
agreements of the Company in subparagraphs (m), (n) and (o) of
Section 4, subparagraphs (n), (o) and (p) of Section 5 and
subparagraph (a) of Section 6 of this Agreement and of the
Initial Purchasers in Section 2 of this Agreement and on the
truth and accuracy of the representations and agreements
deemed to be made by purchasers of the Securities contained in
the Final Memorandum, it is not necessary in connection with
the offer, sale and delivery of the Securities to the Initial
Purchasers under this Agreement or in connection with the
initial resale of such Securities by the Initial Purchasers in
accordance with Section 2 of this Agreement to register the
Securities under the Securities Act or to qualify the
Indenture under the TIA; provided however that such counsel
need not express any opinion with respect to the conditions
under which the Securities may be further resold;
(ix) the Securities satisfy the requirements set
forth in Rule 144A(d)(3) under the Securities Act;
(x) the statements in the Offering Memorandum under
"Exchange Offer; Registration Rights", "Material Federal
Income Tax Considerations", "Plan of Distribution", "Transfer
Restrictions", and "Description of Notes" insofar as such
statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly summarize
such legal matters, documents or proceedings;
(xi) the Company is not and, after giving effect to
the offering and sale of the Securities, will not be an
"investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act;
(xii) such counsel (A) is of the opinion that each
document filed with the Commission pursuant to the Exchange
Act and incorporated by reference in the Final Memorandum
(except for the financial statements and schedules and other
financial and statistical data included therein, as to which
such counsel need express no opinion) complied as to form in
all material respects, when filed with the Commission, with
the Exchange Act; and (B) believes that (except for the
financial statements and schedules and other financial and
statistical data included or incorporated by reference
therein, as to which such counsel need express no belief) the
Final Memorandum did not, as of its date of issuance, and does
not, as
15
amended or supplemented, if applicable, as of the Closing
Date, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.;
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the States of Pennsylvania and Delaware, to the extent such counsel deems proper
and to the extent specified in such opinion, if at all, upon an opinion or
opinions (reasonably satisfactory to Initial Purchasers' counsel) of other
counsel, reasonably acceptable to the Initial Purchasers' counsel, familiar with
the applicable laws; and (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company and
certificates or other written statements of officials of jurisdictions having
custody of documents respecting the corporate existence or good standing of the
Company. The opinion of such counsel for the Company shall state that the
opinion of any such other counsel upon which they relied is in form satisfactory
to such counsel and, in such counsel's opinion, the Initial Purchasers and they
are justified in relying thereon. With respect to the matters to be covered in
subparagraph (xii) above counsel may state their opinion and belief is based
upon their participation in the preparation of the Offering Memorandum and any
amendment or supplement thereto and review and discussion of the contents
thereof (including the documents incorporated by reference therein) but is
without independent check or verification except as specified.
The opinion of Kirkpatrick & Lockhart LLP, described above, shall be rendered to
the Initial Purchasers at the request of the Company and shall so state therein.
(f) Jon D. Walton, Senior Vice President, Chief Legal and
Administrative Officer of the Company, shall have furnished to the
Initial Purchasers his written opinion, dated the Closing Date, in form
and substance satisfactory to the Initial Purchasers, to the effect
that:
(i) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each jurisdiction other than that
of its incorporation in which it owns or leases properties, or
conducts any business, so as to require such qualification,
other than where the failure to be so qualified or in good
standing would not have a Material Adverse Effect;
(ii) each of the Company's "significant subsidiaries"
(within the meaning of Rule 1-02 of Regulation S-X) has been
duly incorporated and is validly existing as a corporation
under the laws of its jurisdiction of incorporation with
corporate power and authority to own its properties and
conduct its business as described in the Offering Memorandum
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified
and in good standing would not have a Material Adverse Effect;
and all of the outstanding shares of capital stock of each
"significant
16
subsidiary" (within the meaning of Rule 1-02 of Regulation
S-X) of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except for any
directors' qualifying shares and minority interests) are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(iii) other than as set forth or incorporated by
reference in the Final Memorandum, there is no legal or
governmental investigation, action, suit or proceeding pending
or, to the best of such counsel's knowledge, threatened
against or affecting the Company or any of its subsidiaries or
any of their respective properties or to which the Company or
any of its subsidiaries is or may be a party or to which any
property of the Company or its subsidiaries is or may be the
subject which, if determined adversely to the Company or any
of its subsidiaries, would have, or reasonably be expected to
have, a Material Adverse Effect;
(iv) to the best of such counsel's knowledge, neither
the Company nor any of its "significant subsidiaries" (within
the meaning of Rule 1-02 of Regulation S-X) is, or with the
giving of notice or lapse of time or both would be, in
violation of or in default under, its Certificate of
Incorporation or By-Laws or any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which it is a party or by which it or any
of its properties is bound, except for violations and defaults
which individually and in the aggregate are not material to
the Company and its subsidiaries taken as a whole; the issue
and sale of the Securities and the performance by the Company
of its obligations under the Securities, the Indenture, the
Registration Rights Agreement and this Agreement and the
consummation of the transactions herein and therein
contemplated will not result in a breach or violation of any
of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which
the Company or any of its "significant subsidiaries" (within
the meaning of Rule 1-02 of Regulation S-X) is a party or by
which it is bound or to which any of its property or assets is
subject, or any applicable law or statute or any order, rule
or regulation of any court or governmental agency or body
having jurisdiction over the Company, any of its subsidiaries
or any of their respective properties, in each case except for
such breaches, violations or defaults which would not, singly
or in the aggregate, have a Material Adverse Effect, nor will
any such action result in any violation of the provisions of
the Certificate of Incorporation or the By-Laws of the Company
or any "significant subsidiary" (within the meaning of Rule
1-02 of Regulation S-X);
(v) each of the Company and its subsidiaries owns,
possesses or has obtained all licenses, permits, certificates,
consents, orders, approvals and other authorizations from, and
has made all declarations and filings with, all federal,
state, local and other governmental authorities (including
foreign regulatory agencies), all self-regulatory
organizations and all courts and other tribunals, domestic or
foreign, necessary to own or lease, as the case may be, and to
operate
17
its properties and to carry on its business as conducted as of
the date hereof, and neither the Company nor any such
subsidiary has received any actual notice of any proceeding
relating to revocation or modification of any such license,
permit, certificate, consent, order, approval or other
authorization, except as described in the Offering Memorandum,
and each of the Company and its subsidiaries is in compliance
with all laws and regulations relating to the conduct of its
business as conducted as of the date of the Offering
Memorandum, except where the failure to own, posses or obtain
such licenses, permits, certificates, consents, orders,
approvals and other authorizations, to make such declarations
and filings, to be party to any such proceedings, or to comply
with such laws and regulations would not, singly or in the
aggregate, have a Material Adverse Effect;
(vi) each of the Company and its subsidiaries owns,
possesses or has the right to use the Intellectual Property
employed by it in connection with the business conducted by it
as of the date hereof, except where failure to so own, possess
or have the right to use such Intellectual Property would not
have a Material Adverse Effect; and
(vii) each of the Company and its subsidiaries is in
compliance with all Environmental Laws, except, in each case,
where noncompliance, individually or in the aggregate, would
not have a Material Adverse Effect; there are no legal or
governmental proceedings pending or, to the knowledge of such
counsel, threatened against or affecting the Company or any of
its subsidiaries under any Environmental Law which,
individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the States of Pennsylvania, to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or opinions
(reasonably satisfactory to Initial Purchasers' counsel) of other counsel,
reasonably acceptable to the Initial Purchasers' counsel, familiar with the
applicable laws; and (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company and certificates
or other written statements of officials of jurisdictions having custody of
documents respecting the corporate existence or good standing of the Company.
The opinion of such counsel for the Company shall state that the opinion of any
such other counsel upon which they relied is in form satisfactory to such
counsel and, in such counsel's opinion, the Initial Purchasers and they are
justified in relying thereon.
(g) on the date of the issuance of the Offering Memorandum and
also on the Closing Date, Ernst & Young LLP shall have furnished to the
Initial Purchasers letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, containing
statements and information of the type customarily included in
accountants "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Offering Memorandum;
(h) the Initial Purchasers shall have received on and as of
the Closing Date an opinion of Cravath, Swaine & Moore, counsel to the
Initial Purchasers, with respect to
18
the validity of the Indenture, the Registration Rights Agreement and
the Securities, and such other related matters as the Initial
Purchasers may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable
them to pass upon such matters;
(i) the Indenture shall have been executed and delivered by a
duly authorized officer of the Company and the Trustee, and the Initial
Purchasers shall have received a counterpart of the Registration Rights
Agreement that shall have been executed and delivered by a duly
authorized officer of the Company; and
(j) on or prior to the Closing Date the Company shall have
furnished to the Initial Purchasers such further certificates and
documents as the Initial Purchasers shall reasonably request.
7. The Company agrees to indemnify and hold harmless each Initial
Purchaser and each person, if any, who controls any Initial Purchaser within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including without limitation the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Offering Memorandum (and any amendment or supplement thereto if the Company
shall have furnished any amendments or supplements thereto) or any preliminary
offering memorandum, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with the
Initial Purchasers' Information.
Each Initial Purchaser agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers and each person who
controls the Company within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Initial Purchaser, but only with reference the Initial
Purchasers' Information.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the
19
Indemnified Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Initial
Purchasers and such control persons of the Initial Purchasers shall be
designated in writing by J.P. Morgan Securities Inc. and any such separate firm
for the Company, its directors, its officers and such control persons of the
Company shall be designated in writing by the Company. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Initial Purchasers on
the other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Initial Purchasers on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Initial Purchasers on the other
shall be deemed to be in the same respective proportions as the net proceeds
from the offering (before deducting expenses) received by the Company and the
total discounts and commissions received by the Initial Purchasers, in each case
as set forth in the table on the cover of the Offering Memorandum, bear to the
aggregate offering price of the Securities. The relative fault of the Company on
the one hand and the Initial Purchasers on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by
20
the Company or by the Initial Purchasers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Initial Purchasers were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an Initial
Purchaser be required to contribute any amount in excess of the amount by which
the total price at which the Securities purchased by it were offered exceeds the
amount of any damages that such Initial Purchaser has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section ll(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute pursuant to this Section 7 are several in
proportion to the respective principal amount of the Securities set forth
opposite their names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Initial Purchaser or any person controlling any Initial Purchaser or by
or on behalf of the Company, its officers or directors or any other person
controlling the Company and (iii) acceptance of and payment for any of the
Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Initial Purchasers, by notice given
to the Company, if after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of or
guaranteed by the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or there shall have been a material disruption in securities
settlement or clearance services, or (iv) there shall have occurred any outbreak
or escalation of hostilities or any change in financial markets or any calamity
or crisis that, in the judgment of the Initial Purchasers, is material and
adverse and which, in the judgment of the Initial Purchasers, makes it
impracticable to market the Securities on the terms and in the manner
contemplated in the Offering Memorandum.
21
9. This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
If, on the Closing Date any one or more of the Initial Purchasers shall
fail or refuse to purchase Securities which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Securities which
such defaulting Initial Purchaser or Initial Purchasers agreed but failed or
refused to purchase is not more than one-tenth of the aggregate principal amount
of the Securities to be purchased on such date, the other Initial Purchasers
shall be obligated severally in the proportions that the principal amount of
Securities set forth opposite their respective names in Schedule I bears to the
aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Initial Purchasers, or in such other proportions as the
Initial Purchasers may specify, to purchase the Securities which such defaulting
Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase
on such date; provided that in no event shall the principal amount of Securities
that any Initial Purchaser has agreed to purchase pursuant to Section 1 be
increased pursuant to this Section 9 by an amount in excess of one-tenth of such
principal amount of Securities without the written consent of such Initial
Purchaser. If, on the Closing Date any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase Securities which it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Securities to be purchased on such date, and
arrangements satisfactory to the Initial Purchasers and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Initial Purchaser or the Company. In any such case either the
Initial Purchasers or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Offering Memorandum or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Initial Purchaser from liability in respect of any
default of such Initial Purchaser under this Agreement.
10. If this Agreement shall be terminated by the Initial Purchasers, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement or any condition of the Initial Purchasers' obligations cannot be
fulfilled, the Company agrees to reimburse the Initial Purchasers or such
Initial Purchasers as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
expenses of their counsel) reasonably incurred by such Initial Purchasers in
connection with this Agreement or the offering contemplated hereunder.
11. The Company and the Initial Purchasers acknowledge and agree that
the following constitutes the only Initial Purchaser's Information furnished to
the Company in writing by any Initial Purchaser expressly for use in the
Offering Memorandum: (i) the last paragraph on the front cover page concerning
the terms of the offering by the Initial Purchasers; and (ii) the statements
concerning the Initial Purchasers contained in the third, eleventh, twelfth and
thirteenth paragraphs under the heading "Plan of Distribution".
22
12. This Agreement shall inure to the benefit of and be binding upon
the Company, the Initial Purchasers, any controlling persons referred to herein
and their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person, firm
or corporation any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. No Initial Purchaser of
Securities from any Initial Purchaser shall be deemed to be a successor by
reason merely of such purchase.
13. Any action by the Initial Purchasers hereunder may be taken by J.P.
Morgan Securities Inc. on behalf of the Initial Purchasers, and any such action
taken by J.P. Morgan Securities Inc. shall be binding upon the Initial
Purchasers. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Initial Purchasers shall be
given to the Initial Purchasers c/o J.P. Morgan Securities Inc., 270 Park
Avenue, New York, New York 10017 (telefax: (212) 834-6702); Attention:
Transaction Execution Group. Notices to the Company shall be given to it at 1000
Six PPG Place, Pittsburgh, Pennsylvania 15222-5479 (telefax: (412) 394-2800),
Attention: Jon D. Walton, Senior Vice President, Chief Legal and Administrative
Officer.
14. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS
OF LAWS PROVISIONS THEREOF.
23
If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
ALLEGHENY TECHNOLOGIES INCORPORATED
By: /s/ Robert S. Park
-------------------------------
Name: Robert S. Park
Title: Vice President and
Treasurer
ACCEPTED: DECEMBER 13, 2001
J.P. MORGAN SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
SALOMON SMITH BARNEY INC.
PNC CAPITAL MARKETS, INC.
BNY CAPITAL MARKETS, INC.
MIZUHO INTERNATIONAL PLC
TOKYO-MITSUBISHI INTERNATIONAL PLC
By: J.P. Morgan Securities Inc.
By: /s/ Jose C. Padilla
-----------------------------
Jose C. Padilla
Vice President
By: Banc of America Securities LLC
By: /s/ Lily Chang
-----------------------------
Lily Chang
Principal
24
SCHEDULE I
Principal Amount
of Securities
Initial Purchaser To Be Purchased
- ----------------- ---------------
J.P. Morgan Securities Inc................................... $ 105,000,000
Banc of America Securities LLC............................... 105,000,000
Salomon Smith Barney Inc..................................... 51,000,000
PNC Capital Markets, Inc..................................... 15,000,000
BNY Capital Markets, Inc..................................... 9,000,000
Mizuho International plc..................................... 9,000,000
Tokyo-Mitsubishi International plc........................... 6,000,000
-------------
Total:................... $ 300,000,000