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EXHIBIT 2.2
SAC Acquisition Corp.
as Acquiror of
SIMCALA, Inc.
$75,000,000
9 5/8% SENIOR NOTES DUE 2006
PURCHASE AGREEMENT
March 24, 1998
NationsBanc Montgomery Securities LLC
100 North Tryon Street
Charlotte, North Carolina 28255
Ladies and Gentlemen:
SAC Acquisition Corp., a Georgia corporation ("SAC"), proposes
to issue and sell to you (the "Initial Purchaser") $75,000,000 aggregate
principal amount of its 9 5/8% Senior Notes due 2006 (the "Securities") in
connection with SAC's acquisition (the "Acquisition") of SIMCALA, Inc., a
Delaware corporation (the "Company"). Upon consummation of the Acquisition, SAC
will be merged with and into the Company, with the Company being the surviving
corporation (the "Merger"). The Securities are to be issued pursuant to an
indenture, dated as of March 31, 1998 (the "Indenture"), between SAC and IBJ
Schroder Bank & Trust Company, as trustee (the "Trustee"). Immediately after
consummation of the Acquisition, the Company and the Initial Purchaser will
enter into the Purchase Agreement Supplement (the "Purchase Agreement
Supplement"), in substantially the form attached as Exhibit A hereto, pursuant
to which the Company will assume all the rights and obligations of SAC under
this Agreement.
The sale of the Securities to the Initial Purchaser will be
made without registration of the Securities under the Securities Act of 1933, as
amended (the "Securities Act"), in reliance upon exemptions from the
registration requirements of the Securities Act. You have advised SAC that you
will offer and sell the Securities purchased by you hereunder in accordance with
Section 3 hereof as soon as you deem advisable.
In connection with the sale of the Securities, SAC has
prepared a preliminary offering memorandum, dated March 6, 1998 (the
"Preliminary Memorandum") and a final offering memorandum, dated March 24, 1998
(the "Final Memorandum"). Each of the Preliminary Memorandum and the Final
Memorandum sets forth certain information concerning the Company and the
Securities. SAC hereby confirms that it has authorized the use of the
Preliminary Memorandum and the Final Memorandum, and any amendment or supplement
thereto, in connection with the offer and sale of the Securities by the Initial
Purchaser. Unless stated to the contrary, all references herein to the Final
Memorandum are to the Final Memorandum at the time of execution and delivery of
this
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Agreement (the "Execution Time") and are not meant to include any amendment or
supplement thereof, subsequent to the Execution Time.
The Initial Purchaser and its direct and indirect transferees
will be entitled to the benefits of the Registration Rights Agreement,
substantially in the form attached hereto as Exhibit B (the "Registration Rights
Agreement"), pursuant to which SAC will agree to use commercially reasonable
efforts to commence an offer to exchange the Securities for the Series B Notes
(as defined in the Registration Rights Agreement) that have been registered
under the Securities Act, and that otherwise are identical in all respects to
the Securities (except that holders of the Series B Notes shall not generally
have the registration rights provided by the Registration Rights Agreement), or
to cause a shelf registration statement to become effective under the Securities
Act and to remain effective for the period designated in such Registration
Rights Agreement. Immediately after consummation of the Acquisition, the Company
and the Initial Purchaser will enter into the Registration Rights Agreement
Supplement (the "Registration Rights Agreement Supplement"), in substantially
the form attached as Exhibit A thereto, pursuant to which the Company will
assume all the rights and obligations of SAC under the Registration Rights
Agreement.
1. REPRESENTATIONS AND WARRANTIES. SAC represents and warrants to the
Initial Purchaser as follows:
(a) The Preliminary Memorandum, at the date thereof, did not
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The Final
Memorandum, at the date hereof, does not, and at the Closing Date (as
defined below) will not (and any amendment or supplement thereto, at
the date thereof and at the Closing Date, will not), contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however that SAC makes no representation or warranty as to the
information relating to the Initial Purchaser contained in or omitted
from the Preliminary Memorandum or the Final Memorandum, or any
amendment or supplement thereto, in reliance upon and in conformity
with information furnished in writing to SAC by or on behalf of the
Initial Purchaser specifically for inclusion therein.
(b) Neither SAC nor the Company, nor any of their "Affiliates"
(as defined in Rule 501(b) of Regulation D under the Securities Act
("Regulation D")), nor any person acting on their behalf has, directly
or indirectly, made offers or sales of any security, or solicited
offers to buy any security, under circumstances that would require the
registration of the Securities under the Securities Act. Neither SAC
nor the Company, nor any of their Affiliates, nor any person acting on
their behalf has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with any
offer or sale of the Securities, provided, that SAC makes no
representation in this sentence regarding the Initial Purchaser. The
Securities satisfy the eligibility requirements of Rule 144A(d)(3)
under the Securities Act. The Final Memorandum and each amendment or
supplement thereto, as of its date, contains the information specified
in Rule 144A(d)(4) under the Act.
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(c) Neither SAC nor the Company nor any of their Affiliates or
any person acting on its or their behalf (other than the Initial
Purchaser, as to whom SAC makes no representation) has engaged or will
engage in any directed selling efforts within the meaning of Regulation
S under the Securities Act ("Regulation S") with respect to the
Securities. The Securities offered and sold in reliance on Regulation S
have been and will be offered and sold only in offshore transactions.
The sale of the Securities pursuant to Regulation S is not part of a
plan or scheme to evade the registration provisions of the Securities
Act. No registration under the Securities Act of the Securities is
required for the sale of the Securities to the Initial Purchaser as
contemplated hereby or for the Exempt Resales (as defined below)
assuming the accuracy of, and compliance with, the Initial Purchaser's
representations, warranties and agreements set forth in this Agreement.
The Securities sold pursuant to Regulation S will initially be
represented by a temporary global security as required by Rule
903(c)(3)(ii) of Regulation S.
(d) Neither SAC nor the Company is, or will be after giving
effect to the offering and sale of the Securities and the application
of the net proceeds therefrom as described in the Final Memorandum, an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "Investment Company Act").
(e) Assuming (i) that the representations and warranties and
covenants of the Initial Purchaser contained in Section 3 hereof are
true and correct; (ii) that the Initial Purchaser complies with its
agreements contained in Section 3 hereof and (iii) that the
representations and warranties by each Accredited Investor (as defined
herein) in the letter to be delivered by Accredited Investors,
substantially in the form of Annex A to the Final Memorandum (each, an
"AI Letter"), of such Accredited Investor are true and correct, and
compliance by such Accredited Investor therewith, registration under
the Securities Act of the Securities or qualification of the Indenture
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), is not required in connection with (A) the offer and sale of the
Securities to the Initial Purchaser in the manner contemplated by the
Final Memorandum or this Agreement and (B) initial resales of the
Securities by the Initial Purchaser on the terms and in the manner set
forth in the Final Memorandum and Section 3 hereof are exempt from the
registration requirements of the Securities Act.
(f) Since the respective dates as of which information is
given in the Preliminary Memorandum and the Final Memorandum, except as
otherwise stated therein, (i) there has been no material adverse change
in the condition (financial or otherwise), results of operations or
affairs of the Company, whether or not arising in the ordinary course
of business (a "Material Adverse Change") and (ii) there have been no
material transactions entered into by the Company.
(g) Each of the Company and SAC has been duly organized and is
validly existing as a corporation in good standing under the laws of
the state of its incorporation with corporate power and authority to
own, lease and operate its properties and conduct its business as
described in the Preliminary Memorandum and the Final Memorandum; and
each of the Company and SAC is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which the conduct of its business requires such
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qualification, except to the extent that the failure to be so qualified
or be in good standing would not, singly or in the aggregate,
reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), results of operations or affairs of
the Company (a "Material Adverse Effect").
(h) All of the issued and outstanding capital stock of the
Company at December 31, 1997 was, in all material respects, as set
forth in the "Historical" column under the caption "Capitalization" in
the Preliminary Memorandum and the Final Memorandum. All of the
outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable.
There are no subsidiaries of the Company.
(i) This Agreement has been duly authorized, executed and
delivered by SAC. Immediately after the Acquisition is consummated on
the Closing Date, the Purchase Agreement Supplement will have been duly
authorized, executed and delivered by the Company.
(j) The Securities have been duly authorized by SAC, and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchaser in
accordance with this Agreement, will constitute the valid and binding
obligations of SAC enforceable against SAC in accordance with their
terms, and will be entitled to the benefits of the Indenture, except
that enforcement thereof may be subject to (A) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws now or hereafter in effect relating to or affecting creditors'
rights generally and (B) general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at
law).
(k) The Indenture has been duly authorized by SAC and, when
duly executed and delivered by SAC (assuming the due execution and
delivery by the Trustee), will constitute a valid and binding agreement
of SAC, enforceable against SAC in accordance with its terms, except
that enforcement thereof may be subject to (A) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws now or hereafter in effect relating to or affecting creditors'
rights generally and (B) general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at
law). When the Merger is consummated on the Closing Date, the
Supplemental Indenture, dated as of March 31, 1998, by and between the
Company and the Trustee (the "Supplemental Indenture") will have been
duly authorized, executed and delivered by the Company.
(l) The Series B Notes have been duly authorized and, when
duly executed and authenticated in accordance with the provisions of
the Indenture, and issued and delivered, will be validly issued and
outstanding, and will constitute the valid and binding obligations of
SAC, entitled to the benefits of the Indenture and enforceable against
SAC in accordance with their terms except that enforcement thereof may
be subject to (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and (B)
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
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(m) The Registration Rights Agreement has been duly authorized
by SAC and when duly executed and delivered by SAC (assuming the due
execution and delivery by the Initial Purchaser), will constitute a
valid and binding agreement of SAC, enforceable against SAC in
accordance with its terms except that (i) enforcement thereof may be
subject to (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and (B)
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) and (ii) the
enforceability of any indemnification or contribution provisions
thereof may be limited under applicable securities laws or the public
policies underlying such laws. Immediately after the Acquisition is
consummated on the Closing Date, the Registration Rights Agreement
Supplement will have been duly authorized, executed and delivered by
the Company.
(n) On the Closing Date, when duly authorized, executed and
delivered by the Company (assuming the due execution and delivery by
the other parties thereto) the credit agreement (the "New Credit
Agreement") governing the New Credit Facility (as defined in the Final
Memorandum) will constitute the valid and binding agreement of the
Company enforceable against the Company in accordance with its terms
except that (i) enforcement thereof may be subject to (A) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (B) general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law) and (ii) the enforceability of any indemnification or
contribution provisions thereof may be limited under applicable
securities laws or public policies.
(o) The stock purchase agreement, dated February 10, 1998,
among SAC, the Company and the Selling Stockholders (as defined in the
Final Memorandum) (the "Stock Purchase Agreement"), pursuant to which
SAC will purchase all of the outstanding capital stock of the Company,
has been duly authorized, executed and delivered by, and constitutes
the valid and binding agreement of, the parties thereto, enforceable
against them in accordance with its terms except as enforcement thereof
may be subject to (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and (B)
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law). The Stock Purchase
Agreement is in full force and effect and, to the knowledge of SAC,
there exists no breach by any of the parties thereto of any
representation or covenant thereunder and no facts have come to the
attention of SAC that have led SAC to believe that the conditions to
the consummation of the transactions contemplated thereby will not be
satisfied or waived in accordance with the terms thereof.
(p) When duly authorized, executed and delivered by SAC and
the Company, the merger agreement (the "Merger Agreement"), pursuant to
which the Merger will be consummated, will be the valid and binding
agreement of SAC and the Company, enforceable against SAC and the
Company in accordance with its terms except as enforcement thereof may
be subject to (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights
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generally and (B) general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
(q) The execution, delivery and performance of this Agreement,
the Purchase Agreement Supplement, the Indenture, the Supplemental
Indenture, the Registration Rights Agreement, the Registration Rights
Agreement Supplement, the Merger Agreement, the Stock Purchase
Agreement and the New Credit Agreement (collectively, the "Transaction
Documents") by SAC or the Company, as the case may be, and the
consummation of the transactions contemplated hereby and thereby will
not conflict with or 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 or credit agreement or other agreement or
instrument to which the Company is a party or by which the Company or
is bound or to which any of the properties or assets of the Company are
subject, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any statute to
which it is subject or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its properties or assets (except to the extent any such conflict,
breach, violation or default singly or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect); and except
(A) for such consents, approvals, authorizations, registrations or
qualifications as may be required under applicable state securities and
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Initial Purchaser or as set forth in the Registration
Rights Agreement and (B) in connection with the registration under the
Securities Act of the Series B Notes pursuant to the Registration
Rights Agreement (including, without limitation, the qualification of
the Indenture under the Trust Indenture Act and any filings with the
NASD), no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of the Transaction
Documents by SAC or the Company (to the extent a party thereto), the
consummation of the transactions contemplated hereby and thereby, and
the issuance and sale of the Notes and the Series B Notes by SAC.
(r) The Company is not in breach or violation of any of the
terms or provisions of any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the
properties or assets of the Company are subject, nor is the Company in
violation of the provisions of its charter or by-laws or any statute or
any judgment, order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, or any of its
properties or assets (except to the extent any such conflict, breach,
violation or default is cured at or prior to the Closing Date and
within the grace period applicable thereto or would not, singly or in
the aggregate, reasonably be expected to have a Material Adverse
Effect).
(s) As of the Closing Date, the Securities and the Indenture
will conform in all material respects to the descriptions thereof
contained in the Final Memorandum. As of the Closing Date, the
provisions of the Registration Rights Agreement, the Merger Agreement
the Stock Purchase Agreement and the New Credit Agreement (as defined
in the Final Memorandum), to the extent that such provisions are
summarized in the Final Memorandum, will conform in all material
respects to the descriptions thereof contained in the Final Memorandum.
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(t) Except as set forth in the Registration Rights Agreement,
there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities owned or to be owned by such person or to
require the Company to include such securities in any securities being
registered pursuant to any registration statement filed by the Company
under the Securities Act.
(u) Except as set forth in the Preliminary Memorandum and the
Final Memorandum, there is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now
pending or, to the knowledge of SAC and the Company, threatened against
or affecting the Company which would reasonably be expected to result
in a Material Adverse Change or, singly or in the aggregate, reasonably
be expected to have a Material Adverse Effect or materially and
adversely affect the initial resale of the Securities by the Initial
Purchaser.
(v) The Company has good title to all personal property owned
by it and necessary in the conduct of the business of the Company free
and clear of all liens, encumbrances and defects except (i) such as are
referred to in the Final Memorandum or (ii) such as do not materially
and adversely affect the value of such property to the Company and do
not interfere with the use made and proposed to be made of such
property by the Company to an extent that such interference would,
singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect. All leases to which the Company is a party are valid
and binding, and no default has occurred and is continuing thereunder
which could, singly or in the aggregate, reasonably be expected to have
a Material Adverse Effect or materially and adversely affect the
offering of the Securities, and the Company and its subsidiaries enjoy
peaceful and undisturbed possession under all such leases to which any
of them is a party as lessee (with such exceptions as do not materially
interfere with the use made by the Company). The Company possesses
adequate certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now operated by it, and except as set
forth in the Final Memorandum, the Company has not received any notice
of proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would,
singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(w) Each of Ernst & Young LLP, Crowe Chizek & Company LLP and
Deloitte & Touche LLP, who have certified certain financial statements
of the Company are independent public accountants within the meaning of
the Securities Act and the rules and regulations thereunder. The
financial statements included in the Preliminary Memorandum and the
Final Memorandum present fairly in all material respects the financial
position of the Company as at the dates and for the periods indicated;
said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
during the periods involved, except as indicated therein, and comply as
to form in all material respects with the requirements applicable to
such financial statements included in registration statements under the
Securities Act. The Company maintains a system of internal accounting
controls
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sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
The pro forma financial information included in the
Preliminary Memorandum and the Final Memorandum have been prepared on a
basis consistent with the historical financial statements of the
Company and give effect to assumptions used in the preparation thereof
on a reasonable basis and in good faith and present fairly, in all
material respects, the historical and proposed transactions
contemplated by the Preliminary Memorandum and the Final Memorandum;
and such pro forma financial information comply as to form in all
material respects with the requirements applicable to pro forma
financial information included in registration statements on Form S-1
under the Act. The other pro forma financial and statistical
information and data included in the Preliminary Memorandum and the
Final Memorandum are, in all material respects, accurately presented
and prepared on a basis consistent with the pro forma financial
statements.
The historical and pro forma financial information
included in the Preliminary Memorandum and the Final Memorandum
constitute all of the financial statements that would be required to be
included in a registration statement on Form S-1 under the Securities
Act.
(x) The Company is not now and, after giving effect to the
issuance of the Securities, and the application of the net proceeds
thereof, will not be (i) insolvent, (ii) left with unreasonably small
capital with which to engage in its anticipated businesses or (iii)
incurring debts beyond its ability to pay such debts as they become
due.
(y) Except as would not reasonably be expected to have a
Material Adverse Effect, the Company owns, or otherwise possesses the
right to use, all patents, trademarks, service marks, trade names and
copyrights, all applications and registrations for each of the
foregoing, and all other proprietary rights and confidential
information used in the conduct of its business as currently conducted;
and the Company has not received any notice, or is otherwise aware, of
any infringement of or conflict with the rights of any third party with
respect to any of the foregoing which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
reasonably be expected to have a Material Adverse Effect. The Company
does not own or otherwise possess the right to use any patents,
trademarks, service marks, trade names and copyrights, the loss of
which would result in a Material Adverse Effect.
(z) The Company is (i) 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) has received all permits, licenses or
other approvals required under applicable Environmental Laws to conduct
its business and (iii) is in compliance with all terms and conditions
of any such permit, license or approval, except where such
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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, reasonably be expected to have a Material
Adverse Effect.
(aa) No labor dispute between the Company and its employees
exists or, to the knowledge of SAC, is threatened which, singly or in
the aggregate, would reasonably be expected to have a Material Adverse
Effect.
(ab) Neither the Company nor, to SAC's knowledge, any
director, officer, agent, employee, stockholder or other person, in any
such case, acting on behalf of the Company has used any corporate funds
during the last five years for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity;
made any unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in violation
of any provision of the Foreign Corrupt Practices Act of 1977, as
amended; or made any bribe, payoff, influence payment, kickback or
other payment that is unlawful.
(ac) The Company has not taken and will not take, any action
that would cause this Agreement or the issuance or sale of the
Securities and the Series B Notes to violate Regulation G, T, U or X of
the Board of Governors of the Federal Reserve System or analogous
foreign laws and regulations.
(ad) Other than as set forth on Schedule I hereto, the Company
is not a party to any contract or agreement that would be required to
be filed with the Securities and Exchange Commission (the "Commission")
as an exhibit to a registration statement on Form S-1 pursuant to
entries (2), (4) and (10) of the Exhibit Table of Item 601 of
Regulation S-K under the Securities Act.
(ae) Neither SAC nor any Affiliate of SAC has sold, offered
for sale or solicited offers to buy or otherwise negotiated in respect
of any security (as defined in the Securities Act) in a transaction
that would require the registration under the Securities Act of the
Securities.
(af) Neither the issuance or sale of the Securities nor the
application by SAC or the Company of the net proceeds therefrom as set
forth in the Final Memorandum will violate Regulation G, T, U or X of
the Board of Governors of the Federal Reserve System.
2. PURCHASE AND SALE. On the basis of the representations
and warranties contained in, and subject to the terms and conditions of, this
Agreement, SAC agrees to sell to the Initial Purchaser and the Initial Purchaser
agrees to purchase from SAC the aggregate principal amount of Securities set
forth opposite its name as shown in Schedule II hereto, at a purchase price
equal to 97.0% of the principal amount thereof.
SAC shall not be obligated to deliver any of the Securities to
be delivered except upon payment for all the Securities to be purchased as
provided herein.
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3. SALE AND RESALE OF THE SECURITIES BY THE INITIAL PURCHASER.
The Initial Purchaser represents and warrants to SAC that:
(a) It will offer the Securities to be purchased hereunder for
resale only upon the terms and conditions set forth in this Agreement
and in the Final Memorandum.
(b) It (i) will not solicit offers for, or offer or sell, the
Securities by means of any form of general solicitation or general
advertising within the meaning of Regulation D or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act, and (ii) will solicit offers for the Securities only
from, and will offer, sell or deliver the Securities, as part of its
initial offering, only to the following persons (each an "Eligible
Purchaser"): (A) persons whom the Initial Purchaser reasonably believes
to be qualified institutional buyers ("QIBs") as defined in Rule 144A
under the Securities Act, as such rule may be amended from time to time
("Rule 144A") or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or
agent, only when such person has represented to the Initial Purchaser
that each such account is a QIB, to whom notice has been given that
such sale or delivery is being made in reliance on Rule 144A, (B) to a
limited number of institutional accredited investors as defined in Rule
501(a) (1), (2), (3) or (7) under Regulation D ("Accredited Investors")
that, prior to their purchase of the Securities, execute and deliver an
AI Letter and (C) outside the United States in offshore transactions in
reliance on Regulation S ((A), (B) and (C) are, collectively, "Exempt
Resales").
(c) With respect to Securities sold in reliance on Regulation
S, (i) neither the Initial Purchaser nor any of its affiliates nor
anyone acting on its behalf has offered or sold, or will offer or sell,
any Securities by means of any directed selling efforts (as defined in
Rule 902 of Regulation S) in the United States, (ii) at or prior to
confirmation of all sales of Securities made in reliance on Regulation
S, it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases the
Securities from it during the restricted period a confirmation or
notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons (i) as part of a
distribution thereof at any time or (ii) until 40 days after
the later of the date of the commencement of the offering and
the closing date, except in either case in accordance with an
exemption from or in a transaction not subject to the
Securities Act. Terms used above have the meanings given them
by Regulation S under the Securities Act."
The sale of the Securities to non-U.S. persons in offshore transactions
is not part of a plan or scheme to avoid the registration requirements
of the Securities Act.
(d) (i) It has not solicited, and will not solicit, offers to
purchase any of the Securities from, (ii) it has not sold, and will not
sell, any of the Securities to, and (iii) it has
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not distributed, and will not distribute, the Preliminary Memorandum or
the Final Memorandum to, any person or entity in any jurisdiction
outside of the United States except, in each case, in compliance in all
material respects with all applicable laws of such jurisdiction. For
purposes of this Agreement, "United States" means the United States of
America, its territories, its possessions (including the Commonwealth
of Puerto Rico), and other areas subject to its jurisdiction.
(e) Unless prohibited by applicable law, (i) it will furnish
to each person to whom it offers any Securities, a copy of the
Preliminary Memorandum (as amended or supplemented) or Final Memorandum
or (unless delivery of such Preliminary Memorandum is required by
applicable law) shall inform each such person that a copy of such
Preliminary Memorandum or the Final Memorandum will be available upon
request and (ii) it will furnish to each person to whom it sells
Securities a copy of the Final Memorandum (as then amended or
supplemented by applicable law) and shall inform each such person that
a copy of such Final Memorandum will be available upon request.
4. DELIVERY OF AND PAYMENT FOR THE SECURITIES. Delivery of
and payment for the Securities shall be made at the office of Alston & Bird LLP,
1201 W. Peachtree Street, Atlanta, Georgia at 9:00 A.M., on March 31, 1998, or
at such other date or place as shall be determined by agreement between the
Initial Purchaser and SAC. This date and time are sometimes referred to as the
"Closing Date." On the Closing Date, SAC shall deliver or cause to be delivered
the Securities to the Initial Purchaser for the account of the Initial Purchaser
against payment to or upon the order of SAC of the purchase price by wire
transfer in immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of the Initial Purchaser hereunder. Upon delivery,
the Securities shall be in definitive fully registered form and registered in
the name of Cede & Co., as nominee of the Depositary Trust Company ("DTC"), or
such other name or names and in such denominations as the Initial Purchaser
shall request in writing not less than one business day prior to the Closing
Date. For the purpose of expediting the checking and packaging of the
Securities, SAC shall make the Securities available for inspection by the
Initial Purchaser in Atlanta, Georgia, not later than 2:00 P.M., on the business
day prior to the Closing Date.
5. FURTHER AGREEMENTS OF SAC. SAC agrees with the Initial
Purchaser as set forth below in this Section 5:
(a) SAC will furnish to the Initial Purchaser,
without charge, as many copies of the Final Memorandum and any
supplements and amendments thereto as the Initial Purchaser may
reasonably request.
(b) Prior to making any amendment or supplement to
the Preliminary Memorandum or the Final Memorandum, SAC shall furnish a
copy thereof to the Initial Purchaser and counsel to the Initial
Purchaser and will not effect any such amendment or supplement to which
the Initial Purchaser shall reasonably object by notice to SAC after a
reasonable period to review.
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(c) If, at any time prior to completion of the
distribution of the Securities by the Initial Purchaser, any event
shall occur or condition exist as a result of which it is necessary, in
the opinion of counsel for the Initial Purchaser or counsel for SAC, to
amend or supplement the Final Memorandum in order that the Final
Memorandum will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein not misleading in light of the circumstances existing at the
time it is delivered to a purchaser, or if it is necessary to amend or
supplement the Final Memorandum to comply with applicable law, SAC will
promptly prepare such amendment or supplement as may be necessary to
correct such untrue statement or omission or so that the Final
Memorandum, as so amended or supplemented, will comply in all material
respects with applicable law and furnish to the Initial Purchaser such
number of copies of such amendment or supplement as they may reasonably
request.
(d) So long as any Securities are outstanding and are
"Restricted Securities" within the meaning of Rule 144(a)(3) under the
Securities Act and during any period in which SAC is not subject to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), SAC will furnish to holders of the Securities and
prospective purchasers of Securities designated by such holders, upon
request of such holders or such prospective purchasers, the
information, if any, required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
(e) So long as the Securities and the Series B Notes
are outstanding, SAC will furnish to the Initial Purchaser copies of
any annual reports, quarterly reports and current reports filed with
the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms
as may be designated by the Commission as the successor or successors
to such forms, and such other documents, reports and information as
shall be furnished by SAC to the Trustee or to the holders of the
Securities and the Series B Notes pursuant to the Indenture.
(f) SAC will use commercially reasonable efforts to
qualify the Securities for sale under the securities or Blue Sky laws
of such jurisdictions as the Initial Purchaser reasonably designates
and to continue such qualifications in effect so long as reasonably
required for the distribution of the Securities. SAC will also arrange
for the determination of the eligibility for investment of the
Securities under the laws of such jurisdictions as the Initial
Purchaser reasonably requests. Notwithstanding the foregoing, SAC shall
not be obligated to (i) qualify as a foreign corporation or as a broker
or dealer in securities in any jurisdiction in which it would not
otherwise be required to so qualify, (ii) file a general consent to
service of process or (iii) subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise
subject.
(g) SAC will use commercially reasonable efforts to
permit the Securities to be designated National Association of
Securities Dealers, Inc. Private Offerings, Resales and Trading through
Automated Linkages Market ("PORTAL") securities in accordance with the
rules and regulations adopted by the National Association of Securities
Dealers, Inc. relating to trading in the PORTAL market and to permit
the Securities to be eligible for clearance and settlement through DTC.
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(h) Except following the effectiveness of any
Registration Statement (as defined in the Registration Rights
Agreement) and except for such offers as may be made as a result of, or
subsequent to, filing such Registration Statement or amendments thereto
in accordance with the Registration Rights Agreement prior to the
effectiveness of such filings, SAC will not solicit any offer to buy or
offer to sell the Securities by means of any form of general
solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities
Act.
(i) SAC will consummate the transactions contemplated
by the Stock Purchase Agreement in accordance with the terms thereof,
and apply the net proceeds from the sale of the Securities, in each
case, as set forth in the Final Memorandum.
(j) The Company will not take any action that would
require the registration under the Securities Act of the Securities
(other than pursuant to the Registration Rights Agreement) including,
without limitation, (i) engaging in any directed selling efforts
(within the meaning of Regulation S) during any applicable restricted
period or (ii) offering any other securities in a manner that would be
integrated with the transactions contemplated hereby.
(k) Prior to the consummation of the Exchange Offer
or the effectiveness of an applicable shelf registration statement
pursuant to the Registration Rights Agreement, if, in the reasonable
judgment of the Initial Purchaser, the Initial Purchaser or any of its
affiliates are required to deliver an offering memorandum in connection
with sales of, or market-making activities with respect to, the
Securities, (A) SAC will periodically amend or supplement the Final
Memorandum so that the information contained in the Final Memorandum
complies with the requirements of Rule 144A of the Securities Act, (B)
SAC will amend or supplement the Final Memorandum when necessary to
reflect any material changes in the information provided therein so
that the Final Memorandum will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances existing as
of the date the Final Memorandum is so delivered, not misleading and
(C) SAC will provide the Initial Purchaser with copies of each such
amended or supplemented Final Memorandum, as the Initial Purchaser may
reasonably request.
SAC hereby expressly acknowledges that the indemnification and
contribution provisions of Section 8 hereof are specifically applicable
and relate to each offering memorandum, registration statement,
prospectus, amendment or supplement referred to in this Section 5(m).
(l) On the Closing Date, immediately after
consummation of the Acquisition, the Company shall authorize, execute
and deliver the New Credit Agreement, and satisfy the conditions
precedent to the initial extension of credit thereunder (unless such
conditions shall have been waived).
(m) On the Closing Date, immediately after
consummation of the Acquisition, SAC shall cause the Company to, and
the Company shall, authorize, execute
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and deliver the Purchase Agreement Supplement, the Registration Rights
Agreement Supplement and the Supplemental Indenture.
(n) On the Closing Date, no event of default or event
which, with the giving of notice or passage of time or both, would
constitute an event of default, shall have occurred and be continuing
under the New Credit Agreement and all conditions to the extension of
credit thereunder shall have been satisfied or waived.
(o) On the Closing Date and immediately after
consummation of the Acquisition and the Merger, Alston & Bird LLP,
counsel for the Company, shall have furnished to the Initial Purchaser
its written opinion (containing customary limitations that shall be
reasonably satisfactory to the Initial Purchaser's counsel), addressed
to the Initial Purchaser and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchaser, to the
effect that:
(i) The Company has the corporate power and authority
to execute and deliver the Purchase Agreement Supplement, the
Supplemental Indenture, the Series B Notes and the
Registration Rights Agreement Supplement and to consummate the
transactions contemplated thereby.
(ii) The execution and delivery of the Purchase
Agreement Supplement and the Registration Rights Agreement
Supplement have been duly authorized by all requisite
corporate action of the Company. The Purchase Agreement
Supplement and the Registration Rights Agreement Supplement
have been duly executed and delivered by the Company.
(iii) The execution and delivery of the Supplemental
Indenture have been duly authorized by all requisite corporate
action of the Company. The Supplemental Indenture has been
duly executed and delivered by the Company and assuming due
authorization, execution and delivery by the Trustee, is a
valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject to
(A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and (B) general principles of equity (regardless of
whether enforceability is considered in proceeding n equity or
at law) and the exercise of discretionary authority of any
court before which a proceeding may be brought.
(iv) Assuming due authorization thereof by the
Trustee in accordance with the Indenture and payment therefor
by the Initial Purchaser in accordance with the Agreement, the
Securities are valid and binding obligations of the Company
enforceable against the Company in accordance with their
terms, except that enforcement thereof may be subject to (A)
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally and (B)
general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or
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at law) and the exercise of discretionary authority of any
court before which a proceeding may be brought.
(v) The execution and delivery of the Series B Notes
have been duly authorized by all requisite corporate action of
the Company and, when duly executed and delivered by the
Company and duly authenticated by the Trustee in accordance
with the Indenture, will be valid and binding obligations of
the Company entitled to the benefits of the Indenture and will
be enforceable against the Company in accordance with their
terms, subject to (A) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
now or hereafter in effect relating to or affecting creditors'
rights generally and (B) general principles of equity
(regardless of whether enforceability is considered in a
proceeding in equity or at law) and the exercise of
discretionary authority of any court before which a proceeding
may be brought.
(vi) Upon the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware and the
Articles of Merger with the Secretary of State of the State of
Georgia, each relating to the Merger, the Merger will be
effective.
(p) On the Closing Date and immediately after
consummation of the Acquisition and the Merger, Wolf, Block, Schorr &
Solis-Cohen LLP, special New York counsel to the Company, shall have
furnished to the Initial Purchaser its written opinion (containing
customary limitations that shall be reasonably satisfactory to the
Initial Purchaser's counsel), addressed to the Initial Purchaser and
dated the Closing Date, in form and substance reasonably satisfactory
to the Initial Purchaser, to the effect that:
(i) Assuming the due authorization, execution and
delivery thereof by the Company and Initial Purchaser, the
Registration Rights Agreement Supplement is a legal, valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms, except that (A)
enforceability of the Registration Rights Agreement Supplement
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of
equity and the discretion of the court before which any
proceedings therefor may be brought and (B) any rights to
indemnity or contribution thereunder may be limited by public
policy considerations.
(q) SAC will take all commercially reasonable
measures necessary to satisfy the closing conditions set forth in
Section 7 on its part to be fulfilled.
(r) The Initial Purchaser shall have received a
certificate, dated the Closing Date, signed on behalf of the Company by
(i) C. Edward Boardwine, President and Chief Executive Officer and (ii)
R. Myles Cowan, II, Vice President of Finance, confirming that (A) such
officers have participated in conferences with other officers and
representatives of the Company, representatives of the independent
public accountants of the Company and representatives of counsel to the
Company at which the contents of the Final Memorandum and related
matters were discussed and (B) the matters set forth in paragraphs (c)
and (d) of Section
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7 of this Agreement are true and correct in material respects as of the
Closing Date, except as such matters relate to SAC.
6. EXPENSES. SAC agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Securities and the Series B
Notes and any issue or stamp taxes payable in that connection; (b) the printer
costs incident to the preparation and printing of the Preliminary Memorandum,
the Final Memorandum and any amendments, supplements and exhibits thereto; (c)
the costs of distributing the Preliminary Memorandum, the Final Memorandum and
any amendment or supplement thereto; (d) the fees and expenses of qualifying the
Securities and the Series B Notes under the securities laws of the several
jurisdictions as provided in Section 5(f) and of preparing, printing and
distributing a Blue Sky Memorandum (including reasonable related fees and
expenses of counsel to the Initial Purchaser); (e) the cost of printing the
Securities and the Series B Notes; (f) the fees and expenses of the Trustee and
any agent of the Trustee and the fees and disbursements of any counsel for the
Trustee in connection with the Indenture and the Securities and the Series B
Notes; (g) any fees paid to rating agencies in connection with the rating of the
Securities and the Series B Notes; (h) the costs and expenses of DTC and its
nominee, including its book-entry system; (i) all expenses and listing fees
incurred in connection with the application for quotation of the Securities on
the PORTAL market; and (j) all other costs and expenses incident to the
performance of the obligations of SAC under this Agreement.
7. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The
obligations of the Initial Purchaser to purchase the Securities shall be subject
to the accuracy of the representations and warranties on the part of SAC
contained herein at the Execution Time and the Closing Date, to the accuracy of
the statements of SAC made in any certificates pursuant to the provisions
hereof, to the performance by SAC of its obligations hereunder in all material
respects and to the following additional conditions:
(a) The Initial Purchaser shall not have discovered
and disclosed to SAC on or prior to the Closing Date that the Final
Memorandum or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of Latham & Watkins, counsel
for the Initial Purchaser, is material or omits to state a fact which,
in the opinion of such counsel, is material and is necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading.
(b) The Final Memorandum shall have been printed and
copies distributed to the Initial Purchaser as soon as practicable but
in no event later than the Business Day following the date of this
Agreement or at such later date and time as to which the Initial
Purchaser may agree.
(c) No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by
any governmental agency which would, as of the Closing Date, singly or
in the aggregate, reasonably be expected to have a Material Adverse
Effect; no action, suit or proceeding shall have been commenced and be
pending against or affecting or, to the knowledge of SAC or the
Company, threatened against, the Company before any court or arbitrator
or any governmental body, agency or official that, singly or in the
aggregate, if adversely determined, would reasonably be expected to
result in a
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Material Adverse Effect; and no stop order shall have been issued by
the Commission or any governmental agency of any jurisdiction referred
to in Section 5(f) preventing the use of the Final Memorandum, or any
amendment or supplement thereto, or which would reasonably be expected
to have a Material Adverse Effect.
(d) Since the dates as of which information is given
in the Final Memorandum and other than as set forth in the Final
Memorandum, (i) there shall not have been any Material Adverse Change,
or any development that is reasonably likely to result in a Material
Adverse Change, or any material increase in the long-term debt, or
material increase in the short-term debt, from that set forth in the
Final Memorandum; (ii) no dividend or distribution of any kind shall
have been declared, paid or made by the Company on any class of its
capital stock; (iii) the Company shall not have incurred any
liabilities or obligations, direct or contingent, that are material,
individually or in the aggregate, to the Company and that are required
to be disclosed on a balance sheet or notes thereto in accordance with
generally accepted accounting principles and are not disclosed on the
latest balance sheet or notes thereto included in the Final Memorandum.
(e) The Initial Purchaser shall have received a
certificate, dated the Closing Date, signed on behalf of SAC by (i)
William A. Davies, Chairman of the Board and (ii) James A. O'Donnell,
President, confirming that (A) such officers have participated in
conferences with other officers and representatives of SAC and the
Company, representatives of the independent public accountants of SAC
and the Company and representatives of counsel to SAC and the Company
at which the contents of the Final Memorandum and related matters were
discussed and (B) the matters set forth in paragraphs (c) and (d) of
this Section 7 are true and correct in material respects as of the
Closing Date.
(f) All corporate proceedings and other legal matters
incident to the authorization, form and validity of the Transaction
Documents, the Securities, the Series B Notes, the Final Memorandum and
all other legal matters relating to this Agreement and the transactions
contemplated hereby and thereby, shall be reasonably satisfactory in
all material respects to counsel for the Initial Purchaser, and SAC and
the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass
upon such matters.
(g) Alston & Bird LLP, counsel for SAC, shall have
furnished to the Initial Purchaser its written opinion (containing
customary limitations that shall be reasonably satisfactory to the
Initial Purchaser's counsel), addressed to the Initial Purchaser and
dated the Closing Date, in form and substance reasonably satisfactory
to the Initial Purchaser, to the effect that:
(i) SAC is validly existing as a corporation
and is in good standing under the laws of the jurisdiction of
its incorporation. SAC is duly qualified to do business as a
foreign corporation and is in good standing in each of the
jurisdictions listed on an exhibit to such opinion.
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(ii) The Company is validly existing as a
corporation and is in good standing under the laws of its
jurisdiction of incorporation. The Company is duly qualified
to do business as a foreign corporation and is in good
standing in each of the jurisdictions listed on an exhibit to
such opinion.
(iii) Assuming, (a) the accuracy of and
compliance with the representations, warranties and covenants
of SAC set forth in Section 1 of this Agreement, and (b) the
accuracy of and compliance with the representations,
warranties and covenants of the Initial Purchaser set forth in
this Agreement, the offer, sale and delivery of the Securities
to the Initial Purchaser, and the initial reoffer, resale and
delivery of the Securities by the Initial Purchaser, as
contemplated by this Agreement and the Final Memorandum, do
not require registration under the Securities Act, or
qualification of the Indenture under the Trust Indenture Act,
it being understood that no opinion is expressed as to any
subsequent resale of Securities or any resale of Securities by
any person other than the Initial Purchaser.
(iv) SAC has the corporate power and
authority to execute and deliver and to consummate the
transactions contemplated by this Agreement. The execution and
delivery of this Agreement have been duly authorized by all
requisite corporate action of SAC. This Agreement has been
duly executed and delivered by SAC.
(v) SAC has the corporate power and
authority to execute and deliver and to consummate the
transactions contemplated by the Indenture. The execution and
delivery of the Indenture have been duly authorized by all
requisite corporate action of SAC. The Indenture has been duly
executed and delivered by SAC and assuming due authorization,
execution and delivery by the Trustee is a valid and binding
agreement of SAC, enforceable against SAC in accordance with
its terms, except that enforcement thereof may be subject to
(A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and (B) general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity
or at law) and the exercise of discretionary authority of any
court before which a proceeding may be brought.
(vi) SAC has the corporate power and
authority to issue and deliver the Securities as contemplated
by the Purchase Agreement. The execution and delivery of the
Securities have been duly authorized by all requisite
corporate action of SAC. The Securities have been duly
executed and delivered by SAC and, when authenticated by the
Trustee in accordance with the Indenture and paid for by the
Initial Purchaser in accordance with this Agreement, the
Securities will be valid and binding obligations of SAC
entitled to the benefits of the Indenture, and be enforceable
against SAC in accordance with their terms, except that
enforcement thereof may be subject to (A) bankruptcy,
insolvency, fraudulent, conveyance, reorganization, moratorium
and other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally and (B) general
principles of equity (regardless of whether enforceability is
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considered in a proceeding in equity or at law) and the
exercise of discretionary authority of any court before which
a proceeding may be brought.
(vii) SAC has the corporate power and
authority to execute and deliver and to consummate the
transactions contemplated by the Registration Rights
Agreement. The execution and delivery of the Registration
Rights Agreement have been duly authorized by all requisite
corporate action of SAC. The Registration Rights Agreement has
been duly executed and delivered by SAC.
(viii) SAC and the Company have the
corporate power and authority to execute and deliver and to
consummate the transactions contemplated by the Stock Purchase
Agreement. The execution and delivery of the Stock Purchase
Agreement have been duly authorized by all requisite corporate
action of SAC and the Company. The Stock Purchase Agreement
has been duly executed and delivered by SAC and the Company
and, assuming the due authorization, execution and delivery by
the other parties thereto, is a valid and binding agreement of
the Company and SAC, enforceable against the Company and SAC
in accordance with its terms, except that enforcement thereof
may be subject to (A) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
now or thereafter in effect relating to or affecting
creditors' rights generally and (B) general principles of
equity (regardless of whether enforceability is considered in
a proceeding in equity or at law) and the exercise of
discretionary authority of any court proceeding in equity or
at law) and the exercise of discretionary authority of any
court before which a proceeding may be brought. The foregoing
opinion shall be based on the assumption that the relevant
provisions of Georgia and Delaware law are the same.
(ix) The execution and delivery by SAC and
the Company of the Transaction Documents to which they are or
will be parties, respectively, and the consummation by SAC and
the Company of the transactions contemplated hereby and
thereby and by the Final Memorandum will not (A) to the
knowledge of such counsel, result in a breach or violation of
any of the terms or provisions of, or constitute a default
under, any agreement listed on an exhibit to such opinion or
(B) result in any violation of the provisions of the charter
or by-laws of SAC or the Company or, to the knowledge of such
counsel, any material statute, rule or regulation (other than
Securities Laws (as defined below) as to which an opinion is
given in paragraph (iii) above) with respect to SAC or the
Company or, to the knowledge of such counsel, any order of any
court or governmental agency having jurisdiction over SAC or
the Company, except in each of the foregoing cases, for such
breaches and violations that would not, singly or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(x) To the knowledge of such counsel, except
for such consents, approvals or authorizations of, or filings,
registrations or qualifications with, governmental authorities
as may be required under the Securities Act and the rules and
regulations thereunder, the Trust Indenture Act and the rules
and regulations thereunder, pursuant to the rules and
regulations of the NASD or applicable states
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securities or Blue Sky laws, rules or regulations (all of such
laws, rules and regulations are collectively referred to
herein as "Securities Laws") in connection with the purchase
and distribution of the Securities by the Initial Purchaser
and as set forth in and in order to consummate the
transactions contemplated by, the Registration Rights
Agreement and the Registration Rights Agreement Supplement, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or
body is required in connection with the execution and delivery
by SAC and the Company of the Transaction Documents to which
they are or will be party, and the consummation by SAC and the
Company of the transactions contemplated hereby and thereby.
(xi) The descriptions in the Final
Memorandum of the Indenture, the Securities, the Registration
Rights Agreement, the Merger Agreement, the Stock Purchase
Agreement and the New Credit Agreement are accurate summaries
of such documents in all material respects.
(xii) The Company is not an "investment
company" within the meaning of the Investment Company Act.
(xiii) When the Securities are issued and
delivered pursuant to this Agreement and the Purchase
Agreement Supplement such Securities will not be of the same
class (within the meaning of Rule 144A(d)(3) under the
Securities Act) as securities of the Company that are listed
on a national securities exchange registered under Section 6
of the Exchange Act or quoted on an automated inter-dealer
quotation system.
(xiv) Neither the issuance or sale of the
Securities nor the application by the Company of the net
proceeds therefrom as set forth in the Final Memorandum will
violate Regulation G, T, U or X of the Board of Governors of
the Federal Reserve System.
In addition, such counsel shall also state that such counsel
has participated in conferences with officers and representatives of
SAC and the Company, representatives of the independent public
accountants for SAC and the Company and the Initial Purchaser and its
counsel at which the contents of the Final Memorandum and related
matters were discussed and, although such counsel is not passing upon
and does not assume any responsibility for and has not verified the
accuracy, completeness or fairness of the statements contained in the
Final Memorandum, and has not made any independent check or
verification thereof, on the basis of the foregoing (relying as to
materiality to the extent they deemed appropriate upon facts provided
by officers and other representatives of SAC and the Company), no facts
have come to the attention of such counsel that lead such counsel to
believe that the Final Memorandum, as of its date or the Closing Date,
contained an untrue statement of a material fact or omitted to state
any material fact necessary to make the statements therein, in light of
the circumstances under which there were made, not misleading (it being
understood that such counsel need express no belief or opinion with
respect to (i) the financial statements and notes and schedules thereto
and other financial and statistical data included or referred to
therein and (ii) the
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matters disclosed in the Final Memorandum under "Risk
Factors--Anti-Dumping Duties on Foreign Competitors' Products" and
"Business--Environmental and Regulatory Matters--Anti-Dumping Duties on
Foreign Competitors' Products").
(h) On the Closing Date, Wolf, Block, Schorr &
Solis-Cohen LLP, special New York counsel to the Company, shall have
furnished to the Initial Purchaser its written opinion (containing
customary limitations that shall be reasonably satisfactory in all
material respects to the Initial Purchaser's counsel), addressed to the
Initial Purchaser and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchaser, to the effect that:
(i) Assuming the due authorization, execution and
delivery thereof by SAC and Initial Purchaser, the
Registration Rights Agreement is a legal, valid and binding
obligation of SAC, enforceable against SAC in accordance with
its terms, except that (A) enforceability of the Registration
Rights Agreement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before
which any proceedings therefor may be brought and (B) any
rights to indemnity or contribution thereunder may be limited
by public policy considerations.
(i) On the Closing Date, Baker & Botts LLP, special
regulatory counsel to the Company, shall have furnished to the Initial
Purchaser its written opinion (containing customary limitations that
shall be reasonably satisfactory in all material respects to the
Initial Purchaser's counsel), addressed to the Initial Purchaser and
dated the Closing Date, in form and substance reasonably satisfactory
to the Initial Purchaser, to the effect that such counsel has reviewed
the portions of the Preliminary Memorandum and the Final Memorandum set
forth under the captions "Risk Factors--Anti-Dumping Duties on Foreign
Competitors' Products" and "Business--Environmental and Regulatory
Matters--Anti-Dumping Duties on Foreign Competitors' Products"
(collectively, the "Antidumping Provisions") and, although such counsel
is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Preliminary Memorandum and the Final Memorandum, no facts have come to
such counsel's attention which lead such counsel to believe that the
Antidumping Provisions of the Preliminary Memorandum and the Final
Memorandum contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(j) You shall have received on the Closing Date an
opinion of Latham & Watkins, counsel for the Initial Purchaser, dated
the Closing Date and addressed to you, in form and substance reasonably
satisfactory to you.
(k) SAC and the Trustee shall have entered into the
Indenture and the Initial Purchaser shall have received executed
counterparts thereof.
(l) SAC and the Initial Purchaser shall have entered
into the Registration Rights Agreement and the Initial Purchaser shall
have received executed counterparts, thereof.
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(m) At the Execution Time and at the Closing Date,
Ernst & Young LLP, Crowe, Chizek and Company LLP and Deloitte & Touche
LLP shall have furnished to the Initial Purchaser a letter or letters,
dated respectively as of the Execution Time and as of the Closing Date,
in form and substance reasonably satisfactory to the Initial Purchaser,
confirming that they are independent accountants within the meaning of
the Securities Act and the Exchange Act and the applicable rules and
regulations thereunder and Rule 101 of the Code of Professional Conduct
of the American Institute of Certified Public Accountants (the "AICPA")
and otherwise reasonably satisfactory in form and substance to the
Initial Purchaser and their counsel.
(n) (i) The Company shall not have sustained since
the date of the latest financial statements included in the Final
Memorandum losses or interferences with its businesses, 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 or contemplated in the
Final Memorandum and (ii) since such date there shall not have been any
change in the capital stock or long-term debt of the Company or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company otherwise
than as set forth or contemplated in the Final Memorandum, the effect
of which, in any such case described in clause (i) or (ii), is, in the
reasonable judgment of the Initial Purchaser, so material and adverse
as to make it impracticable or inadvisable to proceed with the offering
or the delivery of the Securities being delivered on the Closing Date
on the terms and in the manner contemplated herein and in the Final
Memorandum.
(o) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange or The
NASDAQ Stock Market's National Market or in the over-the-counter market
shall have been suspended or materially limited, or minimum prices
shall have been established on such exchange by the Commission, or by
such exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared
by Federal or New York state authorities, (iii) the United States shall
have become engaged in hostilities, there shall have been an escalation
in hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv)
there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the reasonable judgment of the Initial
Purchaser, impracticable or inadvisable to proceed with the offering or
delivery of the Securities being delivered on the Closing Date on the
terms and in the manner contemplated herein and in the Final
Memorandum.
(p) As of the Closing Date, no "nationally recognized
statistical rating organization" as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act (i) will have imposed (or
will have informed the Company that it is considering imposing) any
condition (financial or otherwise) on the Company's retaining any
rating assigned to the Company any securities of the Company or (ii)
will have indicated to the Company that it is
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considering (a) the downgrading, suspension, or withdrawal of, or any
review for a possible change that does not indicate the direction of
the possible change in, any rating so assigned or (b) any change in the
outlook for any rating of the Company, or any securities of the
Company.
(q) Latham & Watkins shall have been furnished with
such documents, in addition to those set forth above, as they may
reasonably require for the purpose of enabling them to review or pass
upon the matters referred to in this Section 7 and in order to evidence
the accuracy, completeness or satisfaction in all material respects of
any of the representations, warranties or conditions herein contained.
(r) On the Closing Date, the Acquisition shall have
been consummated.
(s) Prior to the Closing Date, SAC and the Company
shall have furnished to the Initial Purchaser such further information,
certificates and documents as the Initial Purchaser may reasonably
request.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Initial Purchasers.
8. INDEMNIFICATION AND CONTRIBUTION. (a) SAC agrees to
indemnify and hold harmless the Initial Purchaser, the directors, officers,
employees and agents (including, without limitation, attorneys) of the Initial
Purchaser and each person who controls the Initial Purchaser within the meaning
of either the Securities Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law 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 a material fact contained in the Preliminary Memorandum, the Final Memorandum
or any information provided by the SAC to any holder or prospective purchaser of
Securities pursuant to Section 5(e), or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action: provided, however, that SAC will not be liable in any such
case to the Initial Purchaser to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission relating to such
Initial Purchaser made in the Preliminary Memorandum or the Final Memorandum, or
in any amendment thereof or supplement thereto, in reliance upon and in
conformity with written information furnished to SAC by or on behalf of the
Initial Purchaser specifically for inclusion therein; and, provided, further,
that neither SAC nor the Company will be liable in any such case if a copy of
the Preliminary Memorandum or the Final Memorandum (including any amendment or
supplement thereto delivered to the Initial Purchaser prior to the date such
Preliminary Memorandum or Final Memorandum was sent or given to such purchaser)
was not sent or given by or on behalf of the Initial Purchaser to such
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person at or prior to the written confirmation of the sale of Notes to such
person, and the Preliminary Memorandum or Final Memorandum (including any
amendment or supplement thereto delivered to the Initial Purchaser prior to the
date such Preliminary Memorandum or Final Memorandum was sent or given to such
purchaser) cured the defect giving rise to such losses, claims, damages,
liabilities or expenses.
(b) The Initial Purchaser agrees to indemnify and hold
harmless SAC, its directors, officers, employees and agents (including, without
limitation, attorneys), and each person who controls SAC within the meaning of
either the Securities Act or the Exchange Act, to the same extent as the
foregoing indemnity from SAC to the Initial Purchaser, but only with reference
to written information relating to the Initial Purchaser furnished to SAC by or
on behalf of the Initial Purchaser specifically for inclusion in the Preliminary
Memorandum or the Final Memorandum (or in any amendment or supplement thereto).
This indemnity agreement will be in addition to any liability which any Initial
Purchaser may otherwise have. SAC and the Initial Purchaser acknowledge that the
statements set forth in the last paragraph of the cover page and under the
heading "Plan of Distribution" in the Preliminary Memorandum and the Final
Memorandum constitute the only information furnished in writing by or on behalf
of the Initial Purchaser for inclusion in the Preliminary Memorandum or the
Final Memorandum (or any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section 8 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 this Section 8, notify the indemnifying party in writing of the
commencement thereof, but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would, in the opinion of legal counsel to the
indemnified party, present such counsel with a conflict of interest, (ii) the
actual or potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been informed in writing by legal counsel that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, (iii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after notice
of the institution of such action or (iv) the indemnifying party shall authorize
the indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party or an indemnified party will not,
without the prior written consent of the indemnified parties or the indemnifying
parties, as the case
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may be, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party or indemnifying party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, SAC and the Initial Purchaser agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which SAC and the Initial Purchaser
may be subject in such proportion as is appropriate to reflect the relative
benefits received by SAC and by the Initial Purchaser from the offering of the
Securities; provided, however, that in no case shall the Initial Purchaser be
responsible for any amount in excess of the purchase discount or commission
applicable to the Securities purchased by the Initial Purchaser hereunder. If
the allocation provided by the immediately preceding sentence is unavailable for
any reason, SAC and the Initial Purchaser shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the relative
fault of the Issuer and of the Initial Purchaser in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by SAC shall be deemed to
be equal to the total net proceeds from the offering (before deducting
expenses), and benefits received by the Initial Purchaser shall be deemed to be
equal to the total purchase discounts and commissions received by the Initial
Purchaser from the Issuer in connection with the purchase of the Securities
hereunder. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by SAC or
the Initial Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
SAC and the Initial Purchaser agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation that does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls the Initial Purchaser within the meaning of either the
Securities Act or the Exchange Act and each director, officer, employee and
agent of the Initial Purchaser shall have the same rights to contribution as the
Initial Purchaser, and each person who controls SAC within the meaning of either
the Securities Act or the Exchange Act and each partner, officer, director,
employee and agent of SAC shall have the same rights to contribution as the
Issuer, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. TERMINATION. The obligations of the Initial Purchaser
hereunder may be terminated by the Initial Purchaser by notice given to and
received by the Company prior to delivery of and payment for the Securities if,
prior to that time, any of the events described in Section 7(n) shall have
occurred or if the Initial Purchaser shall decline to purchase the Securities
for any reason permitted under this Agreement.
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10. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Initial Purchaser, shall be delivered
or sent by mail, telex or facsimile transmission to NationsBanc
Montgomery Securities, LLC., 100 North Tryon Street, 20th Floor,
Charlotte, North Carolina 28255, Attention: Mark Wilson, with a copy to
Latham & Watkins, 885 Third Avenue, New York, New York 10022,
Attention: Kirk A. Davenport;
(b) if to SAC, shall be delivered or sent by mail,
telex or facsimile transmission to SAC Acquisition Corp., c/o CGW
Southeast Partners III, L.P., Twelve Piedmont Center, Suite 210,
Atlanta, Georgia 30305, Attention: William A. Davies, with a copy to
Alston & Bird LLP, 1201 West Peachtree Street, Atlanta, Georgia
30309-3424, Attention: Teri McMahon.
Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof. SAC shall be entitled to act and
rely upon any request, consent, notice or agreement given or made on behalf of
the Initial Purchaser.
11. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the Initial Purchaser, SAC and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of SAC contained in this
Agreement shall also be deemed to be for the benefit of directors, officers,
employees and agents (including, without limitation, attorneys) of the Initial
Purchaser and the person or persons, if any, who control the Initial Purchaser
within the meaning of Section 15 of the Securities Act and (B) the indemnity
agreement of the Initial Purchaser contained in Section 8(b) of this Agreement
shall be deemed to be for the benefit of directors of the Issuer, officers,
employees and agents (including, without limitation, attorneys) of SAC and any
person controlling any of SAC within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section 12, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
12. SURVIVAL. The respective indemnities, representations,
warranties and agreements of SAC and the Initial Purchaser contained in this
Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
13. DEFINITION OF "BUSINESS DAY." For purposes of this
Agreement, "business day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York,
New York are authorized or obligated by law, executive order or regulation to
close.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.
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15. COUNTERPARTS. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
16. HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between
SAC and the Initial Purchaser, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
SAC ACQUISITION CORP.
By: /s/ William A. Davies
------------------------------------
Name: William A. Davis
Title: Chairman of the Board
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The foregoing Agreement is hereby
confirmed, accepted and agreed as
of the date first above written.
NATIONSBANC MONTGOMERY SECURITIES LLC
By: /s/ Mark Wilson
---------------------------------------
Name: Mark Wilson
Title: Managing Director