EXHIBIT 4.1
EXECUTION COPY
THE GOODYEAR TIRE & RUBBER COMPANY
$400,000,000 Senior Notes due 2015
Purchase Agreement
June 20, 2005
Citigroup Global Markets Inc.
as representative of the several
Purchasers listed on Schedule I hereto
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
The Goodyear Tire & Rubber Company, an Ohio corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Purchasers named in Schedule I hereto (the "Purchasers") an aggregate of
$400,000,000 principal amount of the 9.00% Senior Notes due 2015 (the
"Securities"). The Securities will be issued pursuant to an indenture (the
"Indenture") to be dated as of June 23, 2005, among the Company, the subsidiary
guarantors signatory hereto (the "Subsidiary Guarantors") and Wells Fargo Bank,
N.A., as trustee (the "Trustee") and will be guaranteed on an unsecured senior
basis by each of the Subsidiary Guarantors (the "Guarantees"). Capitalized terms
used but not defined herein shall have the meanings given to such terms in the
Offering Memorandum (as defined below).
The sale of the Securities to the Purchasers will be made without
registration under the Securities Act of 1933, as amended (the "Securities
Act"), in reliance upon exemptions from the registration requirements of the
Securities Act.
1. The Company and each of the Subsidiary Guarantors jointly and severally
represent and warrant to, and agree with, each of the Purchasers that:
(a) A preliminary offering memorandum, dated June 20, 2005 (the
"Preliminary Offering Memorandum") and an offering memorandum, dated June
20, 2005 (the "Offering Memorandum", in each case including the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 2004,
Quarterly Report on Form 10-Q for the quarter ended March 31, 2005 and the
Current Reports on Form 8-K filed on January 3, January 14, February 23,
February 25, February 28, March 2, March 8, March 18, April 14, April 19,
April 27, May 3 and June 20, 2005 each of which are incorporated by
reference in and made a part of the Preliminary Offering Memorandum and
the Offering Memorandum), have been prepared in connection with the
offering of the Securities. Any reference to the Preliminary Offering
Memorandum or the Offering Memorandum shall be deemed to refer to and
include the Company's
most recent Annual Report on Form 10-K and all subsequent documents filed
with the United States Securities and Exchange Commission (the
"Commission") pursuant to Section 13(a), 13(c) or 15(d) of the United
States Securities Exchange Act of 1934, as amended (the "Exchange Act")
(excluding information furnished under Item 2.02 or Item 7.01 of any
current report on Form 8-K filed on or after January 1, 2005) on or prior
to the date of the Preliminary Offering Memorandum or the Offering
Memorandum, as the case may be, and any reference to the Preliminary
Offering Memorandum or the Offering Memorandum, as the case may be, as
amended or supplemented, as of any specified date, shall be deemed to
include any documents filed with the Commission pursuant to Section 13(a),
13(c) or 15(d) of the Exchange Act after the date of the Preliminary
Offering Memorandum or the Offering Memorandum, as the case may be, prior
to such specified date (excluding information furnished under Item 2.02 or
7.01 of any current report on Form 8-K); and all documents filed under the
Exchange Act and so deemed to be included or incorporated by reference in
the Preliminary Offering Memorandum or the Offering Memorandum, as the
case may be, or any amendment or supplement thereto are hereinafter called
the "Exchange Act Reports". The Exchange Act Reports, when they were or
are filed with the Commission, conformed or will conform, as the case may
be, in all material respects to the applicable requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder. The Preliminary Offering Memorandum or the Offering Memorandum
and any amendments or supplements thereto insofar as such amendments or
supplements are incorporated into the Offering Memorandum and the Exchange
Act Reports did not and will not, as of their respective dates, contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to, and the
Company makes no representation or warranty with respect to, any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a Purchaser through
Citigroup Global Markets Inc. expressly for use therein;
(b) 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 loss or
interference with its business that is material to the Company and its
subsidiaries taken as a whole 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, except as set forth or
contemplated in the Offering Memorandum; and, since the respective dates
as of which information is given in the Offering Memorandum, there has not
been any change in the capital stock (other than issuances pursuant to
equity incentive plans) or increase in long-term debt of the Company or
any of its subsidiaries that is material to the Company and its
subsidiaries taken as a whole, or any material adverse change, or any
development that would reasonably be expected to result in a material
adverse change, in or affecting the business, properties, financial
position or results of operations of the Company and its subsidiaries
taken as a whole, except as set forth or contemplated in the Offering
Memorandum. As used in this Agreement, a "subsidiary" of any person means
any corporation, association, partnership or other business entity of
which more than 50% of the total voting power of
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shares of capital stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at
the time owned or controlled, directly or indirectly, by: (i) such person,
(ii) such person and one or more subsidiaries of such person or (iii) one
or more subsidiaries of such person.
(c) The Company and its subsidiaries have good and marketable title
in fee simple to all 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 (i) such as are described in the Offering
Memorandum or (ii) such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries or (iii) such as could
not reasonably be expected, individually or in the aggregate, to have a
material adverse effect on the business, properties, financial position or
results of operations of the Company and its subsidiaries taken as a whole
or on the performance by the Company of its obligations under the
Securities (a "Material Adverse Effect") or (iv) "Permitted Liens" as
defined in the Indenture; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material
and do not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries taken as a
whole in any material respect;
(d) The Company and its subsidiaries own, license or otherwise
possess adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service
mark registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the conduct
of their respective businesses, except where the failure to own, license
or otherwise possess such rights would not reasonably be expected to have
a Material Adverse Effect; and the conduct of their respective businesses
will not conflict in any respect with any such rights of others, and the
Company and, to the best of the Company's knowledge, its subsidiaries,
have not received written notice of any claim of infringement of or
conflict with any such rights of others, except in each case such
conflicts or infringements that, if adversely determined against the
Company or any of its subsidiaries, would not reasonably be expected to
have a Material Adverse Effect.
(e) The financial statements and the related notes thereto included
or incorporated by reference in the Offering Memorandum present fairly in
all material respects 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 cash flows for the
periods specified, in each case, on a consolidated basis; such financial
statements have been prepared in conformity with United States generally
accepted accounting principles applied on a consistent basis throughout
the periods covered thereby; and the other financial information included
or incorporated by reference in the Offering Memorandum has been derived
from the accounting records of the Company and its subsidiaries and
presents fairly in all material respects the information shown thereby.
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(f) Since the date of the latest audited financial statements of the
Company included or incorporated by reference in the Offering Memorandum,
neither the Company nor any of its subsidiaries has entered into any
transaction or agreement that is material to the Company and its
subsidiaries taken as a whole or incurred any liability or obligation,
direct or contingent, that is material to the Company and its subsidiaries
taken as a whole, other than as set forth in the Company's filings with
the Commission incorporated into the Offering Memorandum or the Offering
Memorandum.
(g) Each of the Company and the Subsidiary Guarantors has been duly
organized and is validly existing and in good standing under the laws of
their respective jurisdictions of organization, with all requisite power
and authority (corporate and other) necessary to own its properties and
conduct its business as described in the Offering Memorandum, and has been
duly qualified as a foreign corporation or limited liability company 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, or is subject to no
liability or disability that is material to the Company and its
subsidiaries taken as a whole by reason of the failure to be so qualified
or in good standing in any such jurisdiction;
(h) The Company has an authorized capitalization as set forth in the
Offering Memorandum, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable; and all of the issued shares of capital stock or
other equity interests of each significant subsidiary (for purposes of
this Section, as defined in Rule 1.02 of Regulation S-X under the Exchange
Act) of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and (except for directors' qualifying shares
and except as otherwise set forth in the Offering Memorandum) the capital
stock or other equity interests of each Subsidiary Guarantor and each
significant subsidiary is owned directly or indirectly by the Company,
free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third party
other than those which are "Permitted Liens" as defined in the Indenture.
Except as described in the Offering Memorandum, there are no outstanding
subscriptions, rights, warrants, calls or options to acquire, or
instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of
capital stock of or other equity or other ownership interest in the
Company or any of its significant subsidiaries;
(i) Each of the Company and the Subsidiary Guarantors has full
right, corporate or limited liability company power, as applicable, and
authority to execute and deliver, as applicable, this Agreement, the
Securities, the Indenture (including each Guarantee set forth therein),
the Exchange Securities (as defined in the Indenture) (including the
related guarantees) and the Registration Rights Agreement dated as of the
Closing Date among the Company, the Subsidiary Guarantors and the
Purchasers therein (the "Registration Rights Agreement" and together with
this Agreement, the Securities, the Exchange Securities (including the
related guarantees) and the Indenture (including each Guarantee set forth
therein), the "Transaction Documents") and to perform their respective
obligations hereunder and thereunder; and all corporate or limited
liability
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company action, as applicable, required to be taken for the due and proper
authorization, execution and delivery of each of the Transaction Documents
and the consummation of the transactions contemplated thereby has been
duly and validly taken.
(j) The Indenture has been duly authorized by the Company and each
of the Subsidiary Guarantors and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute
a valid and legally binding agreement of the Company and each of the
Subsidiary Guarantors enforceable against the Company and each of the
Subsidiary Guarantors in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles regardless of whether considered in a proceeding in equity or
at law (collectively, the "Enforceability Exceptions"), and on the Closing
Date, the Indenture will conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission applicable
to an indenture qualified thereunder;
(k) The Securities have been duly authorized by the Company and,
when duly executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided herein, will be duly and validly issued
and outstanding and will constitute valid and legally binding obligations
of the Company enforceable against the Company in accordance with their
terms, subject to the Enforceability Exceptions, and will be entitled to
the benefits of the Indenture; and the Guarantees have been duly
authorized by each of the Subsidiary Guarantors and, when the Securities
have been duly executed, authenticated, issued and delivered as provided
in the Indenture and paid for as provided herein, will be valid and
legally binding obligations of each of the Subsidiary Guarantors,
enforceable against each of the Subsidiary Guarantors in accordance with
their terms, subject to the Enforceability Exceptions, and will be
entitled to the benefits of the Indenture.
(l) On the Closing Date, the Exchange Securities (including the
related guarantees) will have been duly authorized by the Company and each
of the Subsidiary Guarantors and, when duly executed, authenticated,
issued and delivered in accordance with the Indenture and the Registration
Rights Agreement, will be duly and validly issued and outstanding and will
constitute valid and legally binding obligations of the Company, as
issuer, and each of the Subsidiary Guarantors, as guarantor, enforceable
against the Company and each of the Subsidiary Guarantors in accordance
with their terms, subject to the Enforceability Exceptions, and will be
entitled to the benefits of the Indenture.
(m) This Agreement has been duly authorized, executed and delivered
by the Company and each of the Subsidiary Guarantors; and the Registration
Rights Agreement has been duly authorized by the Company and each of the
Subsidiary Guarantors and, when duly executed and delivered in accordance
with its terms by each of the parties thereto, will constitute a valid and
legally binding agreement of the Company and each of the Subsidiary
Guarantors enforceable against the Company and each of the Subsidiary
Guarantors in accordance with its terms, subject to the Enforceability
Exceptions, and except that rights to indemnity and contribution
thereunder may be limited by applicable
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law and public policy. There are no other persons with registration rights
or similar rights to have any securities of the Company or the Subsidiary
Guarantors ((i) other than the Securities, (ii) the Company's 11% Senior
Secured Notes due 2011 and Senior Secured Floating Rate Notes due 2011
(collectively, the "Senior Secured Notes") and (iii) the Company's 4.00%
Convertible Senior Notes due 2034 (the "Convertible Notes") offered and
sold in reliance on Rule 144A under the Securities Act) registered under a
registration statement filed under the Securities Act;
(n) Each Transaction Document conforms in all material respects to
the description thereof contained in the Preliminary Offering Memorandum
and the Offering Memorandum.
(o) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of
the Securities as described in the Offering Memorandum) 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;
(p) Prior to the date hereof, neither the Company nor any of its
affiliates (as defined in Rule 144 under the Securities Act) has taken any
action which is designed to or which has constituted or which might have
been expected to cause or result in stabilization or manipulation of the
price of any security of the Company in connection with the offering of
the Securities;
(q) The execution, delivery and performance by each of the Company
and the Subsidiary Guarantors of each of the Transaction Documents to
which it is a party, the issuance and sale of the Securities (including
the Guarantees) and the compliance by each of the Company and the
Subsidiary Guarantors with all of the provisions of the Transaction
Documents, and the consummation of the transactions herein and therein
contemplated will not (i) 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 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, (ii) result in any violation of the provisions of the Certificate
of Incorporation or By-laws of the Company or any of the Subsidiary
Guarantors or (iii) result in any violation of any law or 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 subsidiaries or
any of their properties or assets, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach or violation that would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and no consent, approval, authorization, order,
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 and the Subsidiary Guarantors of the
transactions contemplated by the Transaction Documents, except for (i)
such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in connection
with the purchase and resale of the Securities by the Purchasers and (ii)
the
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filing of a registration statement pursuant to the Securities Act by the
Company with the Commission pursuant to the Registration Rights Agreement;
(r) Neither the Company nor any of its subsidiaries is (i) in
violation of its Certificate of Incorporation or By-laws, (ii) in default
in the performance or observance of any obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound or (iii) in violation of any statute,
law, rule, regulation, judgment, order or decree applicable to the Company
or any of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its properties,
as applicable, except, in the case of clauses (ii) and (iii), for any
default or violation that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(s) The statements set forth in the Offering Memorandum under the
caption "Description of Notes", insofar as they purport to constitute a
summary of the terms of the Securities and the Guarantees, and under the
caption "Certain United States Federal Income Tax Considerations", insofar
as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair in all material
respects;
(t) Other than as set forth in the Offering Memorandum, there are no
legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or to which any property of the Company or any
of its subsidiaries is the subject, which would be required to be
disclosed in the Company's Annual Report on Form 10-K if such report were
filed on the date hereof; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(u) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the
meaning of Rule 144A under the Securities Act) as securities which are
listed on a national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation system;
(v) The Company is subject to Section 13 or 15(d) of the Exchange
Act;
(w) Neither the Company nor any of its subsidiaries is, and after
giving effect to the offering and sale of the Securities, none of them
will be an "investment company", as such term is defined in the United
States Investment Company Act of 1940, as amended (the "Investment Company
Act");
(x) Neither the Company, nor any person acting on its or their
behalf (other than the Purchasers, or any persons acting on their behalf,
as to which no representation is made), has (i) offered or sold the
Securities by means of any general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act or (ii)
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engaged in any directed selling efforts within the meaning of Regulation S
under the Securities Act ("Regulation S"), and all such persons have
complied with the offering restrictions requirement of Regulation S;
(y) Within the preceding six months, neither the Company nor any
other person acting on behalf of the Company has offered or sold to any
person any Securities, or any securities of the same or a similar class as
the Securities, other than Securities offered or sold to the Purchasers
hereunder. The Company will take reasonable precautions designed to insure
that any offer or sale, direct or indirect, in the United States or to any
U.S. person (as defined in Rule 902 under the Securities Act) of any
Securities or any substantially similar security issued by the Company,
within six months subsequent to the date on which the distribution of the
Securities has been completed (as notified to the Company by the
Purchasers), is made under restrictions and other circumstances reasonably
designed not to affect the status of the offer and sale of the Securities
in the United States and to U.S. persons contemplated by this Agreement as
transactions exempt from the registration provisions of the Securities
Act;
(z) PricewaterhouseCoopers LLP, who have certified certain
consolidated financial statements of the Company and its consolidated
subsidiaries, are independent public accountants as required by the
Securities Act and the rules and regulations of the Commission thereunder
within the meaning of Rule 101 of the Code of Professional Conduct of the
American Institute of Certified Public Accountants and its interpretations
and rulings thereunder;
(aa) The Company and its subsidiaries have paid all federal, state,
local and foreign taxes (except for such taxes that are not yet delinquent
or that are being contested in good faith and by proper proceedings) and
filed all tax returns required to be paid or filed through the date
hereof, except in each case where the failure to pay or file would not
reasonably be expected to have a Material Adverse Effect; and except as
otherwise disclosed in the Offering Memorandum or as would not reasonably
be expected to have a Material Adverse Effect, there is no tax deficiency
that has been, or could reasonably be expected to be, asserted against the
Company or any of its subsidiaries or any of their respective properties
or assets;
(bb) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made
all declarations and filings with, the appropriate federal, state, local
or foreign governmental or regulatory authorities that are necessary for
the ownership or lease of their respective properties or the conduct of
their respective businesses as described in the Offering Memorandum,
except where the failure to possess or make the same would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and except as described in the Offering
Memorandum or as would not reasonably be expected to have a Material
Adverse Effect, neither the Company nor any of its subsidiaries has
received written notice of any revocation or modification of any such
license, certificate, permit or authorization or has any reason to believe
that any such license, certificate, permit or authorization will not be
renewed in the ordinary course;
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(cc) Except as described in the Offering Memorandum, no labor
disturbance by or dispute with employees of the Company or any of its
subsidiaries exists or, to the best knowledge of the Company, is
contemplated or threatened, in each case that would be reasonably expected
to have a Material Adverse Effect;
(dd) The Company and its subsidiaries (i) are in compliance with any
and all applicable federal, state, local and foreign laws, rules,
regulations, decisions and orders relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (collectively, "Environmental Laws");
(ii) have received and are in compliance with all permits, licenses or
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses; and (iii) have not received notice of
any actual or potential liability for the investigation or remediation of
any disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except in any such case for any such failure
to comply with, or failure to receive required permits, licenses or
approvals, or liability, as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(ee) Except as would not reasonably be expected to have a Material
Adverse Effect, 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 is in compliance in all material respects 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; and for each such
plan that is subject to the funding rules of Section 412 of the Code or
Section 302 of ERISA, except as set forth in the Preliminary Offering
Memorandum or the Offering Memorandum, the fair market value of the assets
of each such plan (excluding for these purposes accrued but unpaid
contributions) exceeds the present value of all benefits accrued under
such plan determined using reasonable actuarial assumptions, and no
"accumulated funding deficiency" as defined in Section 412 of the Code has
been incurred, whether or not waived;
(ff) Except as would not reasonably be expected to have a Material
Adverse Effect, the Company and its subsidiaries maintain systems of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The foregoing
is subject to the disclosures set forth in Note 2 to the Financial
Statements and Item 9A, in each case, of the Company's Annual Report on
Form 10-K for the fiscal year
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ended December 31, 2004, and Item 4 of the Company's Quarterly Report on
Form 10-Q for the quarter ended March 31, 2005;
(gg) Except as would not reasonably be expected to have a Material
Adverse Effect, the Company and its subsidiaries have insurance covering
their respective properties, operations, personnel and businesses,
including business interruption insurance, which insurance is in amounts
and insures against such losses and risks as are customary among companies
of established reputation engaged in the same or similar businesses and
operating in the same or similar locations; and neither the Company nor,
to the best of the Company's knowledge, any of the Company's subsidiaries,
has (i) received written notice from any insurer or agent of such insurer
that capital improvements or other expenditures are required or necessary
to be made in order to continue such insurance or (ii) any reason to
believe that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage at
reasonable cost from similar insurers as may be necessary to continue its
business;
(hh) Except as would not reasonably be expected to have a Material
Adverse Effect, neither the Company nor any of its subsidiaries nor, to
the best knowledge of the Company, any director, officer, agent, employee
or other person associated with or acting on behalf of the Company or any
of its subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate
funds; (iii) violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment;
(ii) On and immediately after the Closing Date, the Company (after
giving effect to the issuance of the Securities and the other transactions
related thereto as described in the Offering Memorandum) will be Solvent.
As used in this paragraph, the term "Solvent" means, with respect to a
particular date, that on such date (i) the present fair market value (or
present fair saleable value) of the assets of the Company is not less than
the total amount required to pay the liabilities of the Company on its
total existing debts and liabilities (including contingent liabilities)
(which liabilities are calculated for purposes of this representation in
the manner used in the preparation of the Company's consolidated financial
statements) as they become absolute and matured; (ii) the Company is able
to realize upon its assets and pay its debts and other liabilities,
contingent obligations and commitments as they mature and become due in
the normal course of business (assuming the ability to refinance existing
obligations in the normal course of business); (iii) assuming consummation
of the issuance of the Securities as contemplated by this Agreement and
the Offering Memorandum, the Company is not incurring debts or liabilities
beyond its ability to pay as such debts and liabilities mature (assuming
the ability to refinance existing obligations in the normal course of
business); and (iv) the Company is not engaged in any business or
transaction, and does not propose to engage in any business or
transaction, for which its property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in the
industry in which the Company is engaged;
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(jj) Neither the Company nor any of its affiliates (as defined in
Rule 501(b) of Regulation D of the Securities Act) 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), that is or will be integrated with the sale of the
Securities in a manner that would require registration of the Securities
under the Securities Act; and
(kk) Assuming the accuracy of the representations and warranties of
the Purchasers contained in Section 3 and their compliance with their
agreements set forth therein, it is not necessary, in connection with the
issuance and sale of the Securities to the Purchasers, the offer, resale
and delivery of the Securities by the Purchasers in the manner
contemplated by this Agreement and the Offering Memorandum, to register
the Securities under the Securities Act or to qualify the Indenture under
the Trust Indenture Act.
2. On the basis of the representations and warranties contained herein and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to each of the Purchasers, and each of the Purchasers agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
97.75% of the principal amount thereof, the principal amount of Securities set
forth opposite the name of such Purchaser in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the
several Purchasers propose to offer the Securities for sale upon the terms and
conditions set forth in this Agreement and the Offering Memorandum and each
Purchaser hereby represents and warrants to, and agrees with the Company that:
(a) It has not solicited offers for, or offered or sold, and will not
solicit offers for, or offer or sell, the Securities except (i) to persons who
it reasonably believes are "qualified institutional buyers" ("QIBs") within the
meaning of Rule 144A under the Securities Act in transactions meeting the
requirements of Rule 144A and (ii) to persons who are not U.S. persons, who are
not purchasing for the account or benefit of a U.S. person (other than a
distributor) and who are purchasing Securities in an offshore transaction in
accordance with Regulation S and in accordance with the restrictions set forth
in Annex I hereto. Each Purchaser agrees that it will not offer, sell or deliver
any of the Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws thereof,
and that it will take whatever action is required to permit its purchase and
resale of the Securities in such jurisdiction;
(b) It is an institutional accredited investor within the meaning of Rule
501(a) under the Securities Act;
(c) Neither it nor any person acting on its behalf has or will (i) offer
or sell the Securities by any form of general solicitation or general
advertising, including but not limited to the methods described in Rule 502(c)
under the Securities Act or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act or (ii) engage in any directed
selling efforts within the meaning of Regulation S;
11
(d) It acknowledges that the Securities have not been registered under the
Securities Act and may not be sold within the United States except pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
4. The Securities to be purchased by each Purchaser hereunder will be
represented by one or more definitive global Securities in book-entry form which
will be deposited by or on behalf of the Company with The Depository Trust
Company ("DTC") or its designated custodian. The Company will deliver the
applicable Securities to Citigroup Global Markets Inc., for the account of each
Purchaser, against payment by or on behalf of such Purchaser of the purchase
price therefor by certified or official bank check or checks, payable to the
order of the Company in New York Clearing House (same day) funds, by causing DTC
to credit the Securities to the account of Citigroup Global Markets Inc. at DTC.
The Company will cause the form of certificates representing the applicable
Securities to be made available to Citigroup Global Markets Inc. for checking at
least twenty-four hours prior to the Closing Date at the office of DTC or its
designated custodian (the "Designated Office"). Delivery of and payment for the
Securities shall be at the offices of Cravath, Swaine & Moore LLP, 825 Eighth
Avenue, New York, NY 10019 (the "Closing Location") at 9:30 a.m., New York City
time, on June 23, 2005 or such other time and date as Citigroup Global Markets
Inc. and the Company may agree upon in writing. The time and date of such
payment and delivery is referred to herein as the "Closing Date".
5. The Company and each of the Subsidiary Guarantors, jointly and
severally, agree with each of the Purchasers:
(a) To prepare the Offering Memorandum in a form reasonably approved by
you; to make no amendment or any supplement to the Offering Memorandum which
shall be reasonably disapproved by you promptly after reasonable notice thereof;
and to furnish you with copies thereof;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as you may reasonably request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the offering and
resale of the Securities, provided that in connection therewith the Company
shall not be required (i) to qualify as a foreign corporation, (ii) to file a
general consent to service of process in any jurisdiction or (iii) to take any
action that would subject itself to taxation in any jurisdiction if it is not
otherwise so subject;
(c) To furnish the Purchasers with written and electronic copies of the
Offering Memorandum and each amendment or supplement thereto in such quantities
as you may from time to time reasonably request, and if, at any time prior to
the earlier of (i) the expiration of nine months after the date of the Offering
Memorandum and (ii) completion of the resale of the Securities by the
Purchasers, any event shall have occurred as a result of which the Offering
Memorandum as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Offering Memorandum is delivered, not misleading, or, if for any
other reason it shall be necessary or desirable (as
12
determined by the Company) during such same period to amend or supplement the
Offering Memorandum, to notify you and upon your request to prepare and furnish
without charge to each Purchaser and to any dealer in securities as many written
and electronic copies as you may from time to time reasonably request of an
amended Offering Memorandum or a supplement to the Offering Memorandum which
will correct such statement or omission or effect such compliance;
(d) To advise the Purchasers promptly, and confirm such advice in writing,
(i) of the issuance by any governmental or regulatory authority of any order
preventing or suspending the use of the Offering Memorandum or the initiation or
threatening of any proceeding for that purpose and (ii) of the receipt by the
Company of any notice with respect to any suspension of the qualification of the
Securities for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and the Company will use its
commercially reasonable efforts to prevent the issuance of any such order
preventing or suspending the use of the Offering Memorandum or suspending any
such qualification of the Securities and, if any such order is issued, will
obtain as soon as possible the withdrawal thereof;
(e) During the period beginning from the date hereof and continuing until
the date 90 days after the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder any debt securities issued or
guaranteed by the Company or any of the Subsidiary Guarantors that are
substantially similar to the Securities, without your prior written consent;
(f) Not to be or become, at any time prior to the expiration of two years
after the Closing Date, an open-end investment company, unit investment trust,
closed-end investment company or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company Act;
(g) So long as the Securities remain outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, at
any time when the Company is not subject to Section 13 or 15(d) of the Exchange
Act, for the benefit of holders from time to time of Securities, to furnish at
its expense, upon request, to holders of Securities and prospective purchasers
of Securities information (the "Additional Issuer Information") satisfying the
requirements of subsection (d)(4)(i) of Rule 144A under the Securities Act;
(h) To use its commercially reasonable efforts to cause the Securities to
be eligible for the PORTAL trading system of the National Association of
Securities Dealers, Inc. and for clearance and settlement through the Depository
Trust Company;
(i) Except if such information is available on the website of either the
Company or the Commission, 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, shareholders' 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), to make available to its
shareholders consolidated unaudited summary financial information of the Company
and its subsidiaries for such quarter in reasonable detail;
13
(j) During a period of two years from the date of the Offering Memorandum,
to furnish to you copies of all reports or other communications (financial or
other) furnished to shareholders of the Company, and to deliver to you (i) as
soon as they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any securities exchange on which
the Securities or any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
shareholders generally or to the Commission);
(k) During the period of two years after the Closing Date, not to, and 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, except for Securities
purchased by the Company or any of its affiliates and resold in a transaction
registered under the Securities Act;
(l) To use the net proceeds received by it from the sale of the Securities
pursuant to this Agreement in the manner specified in the Offering Memorandum
under the caption "Use of Proceeds";
(m) To not, and not permit any of its affiliates (as defined in Rule
501(b) of Regulation D) to, directly or through any agent, sell, offer for sale,
solicit offers to buy or otherwise negotiate in respect of, any security (as
defined in the Securities Act), that is or will be integrated with the sale of
the Securities in a manner that would require registration of the Securities
under the Securities Act;
(n) To not, and not permit any of its affiliates or any other person
acting on its or their behalf (other than the Purchasers, as to which no
covenant is given) (i) solicit offers for, or offer or sell, the Securities by
means of any form of general solicitation or general advertising within the
meaning of Rule 502(c) of Regulation D or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act or (ii) engage
in any directed selling efforts within the meaning of Regulation S, and all such
persons will comply with the offering restrictions requirement of Regulation S;
and
(o) To not take, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Securities.
6. The Company covenants and agrees with the several Purchasers that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
issuance of the Securities and all other expenses in connection with the
preparation and printing of the Preliminary Offering Memorandum and the Offering
Memorandum and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Purchasers and dealers; (ii) the cost of
printing or producing this Agreement, the Guarantees, the Registration Rights
Agreement, the Indenture, the Blue Sky and Legal Investment Memoranda, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering
14
and sale under state securities laws as provided in Section 5(b) hereof,
including the fees and disbursements of counsel for the Purchasers in connection
with such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) the cost of preparing the Securities; (vi) the fees and expenses
of the Trustee and any agent of the Trustee and the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Securities;
(vii) any cost incurred in connection with the designation of the Securities for
trading in PORTAL; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Purchasers will pay
all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Purchasers hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company and the Subsidiary Guarantors herein are, as of the
date hereof and as of the Closing Date, true and correct, the condition that the
Company and the Subsidiary Guarantors shall have performed all of their
respective obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) Cravath, Swaine & Moore LLP, counsel for the Purchasers, shall have
furnished to you such opinion or opinions, dated as of the Closing Date with
respect to such matters as you 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;
(b) C. Thomas Harvie, Esq., Senior Vice President, General Counsel and
Secretary of the Company and Covington & Burling, counsel for the Company, shall
have furnished to you their written opinion, dated as of the Closing Date in
form and substance satisfactory to you, substantially in the forms set forth in
Annex II hereto;
(c) On the date of the Offering Memorandum prior to the execution of this
Agreement and also as of the Closing Date, PricewaterhouseCoopers LLP shall have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, substantially in the form
set forth in Annex III hereto;
(d) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Offering Memorandum any loss or interference
with the business of the Company and its subsidiaries taken as a whole 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,
except as set forth or contemplated in the Offering Memorandum, and (ii) since
the respective dates as of which information is given in the Offering Memorandum
(exclusive of any amendment or supplement thereto on or after the date hereof)
there shall not have been any change in the capital stock (other than issuances
pursuant to equity incentive plans) or increase in long-term debt of the Company
or any of its subsidiaries that is material to the Company and its subsidiaries
taken as a whole, or any change, or any development that would reasonably be
expected to result in a change, in or affecting the business, properties,
financial position or
15
results of operations of the Company and its subsidiaries taken as a whole,
except as set forth or contemplated in the Offering Memorandum (exclusive of any
amendment or supplement thereto on or after the date hereof), the effect of
which, in any such case described in clause (i) or (ii), is in the judgment of
the Purchasers so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering, sale or the delivery of the
Securities on the terms and in the manner contemplated in this Agreement and the
Offering Memorandum;
(e) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities;
(f) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war or
(v) the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iv) or (v) in the judgment of the
Purchasers makes it impracticable or inadvisable to proceed with the public
offering, sale or the delivery of the Securities on the terms and in the manner
contemplated in the Offering Memorandum;
(g) The Securities shall have been designated for trading on PORTAL;
(h) The Company shall have furnished or caused to be furnished to you as
of the Closing Date the certificate of an officer of the Company reasonably
satisfactory to you as to the accuracy of the representations and warranties of
the Company and the Subsidiary Guarantors herein at and as of the Closing Date,
as to the performance by the Company and the Subsidiary Guarantors of all of
their respective obligations hereunder to be performed at or prior to the
Closing Date, as to the matters set forth in subsections (d) and (e) of this
Section and as to such other matters as you may reasonably request; and
(i) The Purchasers shall have received on the Closing Date a counterpart
of the Registration Rights Agreement that shall have been executed and delivered
by a duly authorized officer of the Company and each of the Subsidiary
Guarantors.
8. (a) The Company and each of the Subsidiary Guarantors, jointly and
severally, will indemnify and hold harmless each Purchaser against any losses,
claims, damages or liabilities, joint or several, to which such Purchaser may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum,
16
or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary to make
the statements therein not misleading, and will reimburse each Purchaser for any
legal or other expenses reasonably incurred by such Purchaser in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and each of the Subsidiary
Guarantors shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Offering Memorandum or the Offering Memorandum or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Purchaser through Citigroup Global
Markets Inc. expressly for use therein.
(b) Each Purchaser, severally and not jointly, will indemnify and hold
harmless the Company and each of the Subsidiary Guarantors against any losses,
claims, damages or liabilities to which the Company or any of the Subsidiary
Guarantors may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Offering Memorandum or the
Offering Memorandum, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary Offering
Memorandum or the Offering Memorandum or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Purchaser expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; provided that (i) the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection and (ii) the failure
to notify the indemnifying party shall not relieve it from any liability that it
may have under this Section 8 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the
17
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Subsidiary Guarantors on the one hand and the Purchasers
on the other from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Subsidiary Guarantors on the one hand and the
Purchasers on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Subsidiary Guarantors on the one hand
and the Purchasers on the other from the offering of the Securities shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total discounts
and commissions received by the Purchasers, in each case as set forth herein.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Subsidiary Guarantors on the one hand or the
Purchasers on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Subsidiary Guarantors and the Purchasers agree that it would
not be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Purchasers were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities purchased by it and distributed to
investors were offered to investors exceeds the amount of any damages which such
Purchaser has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The Purchasers' obligations in
this subsection (d) to contribute are several in proportion to their respective
purchase obligations and
18
not joint. 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 fraudulent misrepresentation.
(e) The obligations of the Company and the Subsidiary Guarantors under
this Section 8 shall be in addition to any liability which the Company and the
Subsidiaries Guarantors may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Purchaser within the
meaning of the Securities Act; and the obligations of the Purchasers under this
Section 8 shall be in addition to any liability which the respective Purchasers
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and the Subsidiary Guarantors and to each
person, if any, who controls the Company within the meaning of the Securities
Act.
9. If any one or more Purchaser shall fail to purchase and pay for any of
the Securities agreed to be purchased by such Purchaser hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Purchasers shall be
obligated severally to take up and pay for (in the respective proportions which
the principal amount of Securities set forth opposite their names in Schedule I
hereto bears to the aggregate principal amount of Securities set forth opposite
the names of all the remaining Purchasers) the Securities which the defaulting
Purchaser or Purchasers agreed but failed to purchase; provided, however, that
in the event that the aggregate principal amount of Securities which the
defaulting Purchaser or Purchasers agreed but failed to purchase shall exceed
10% of the aggregate principal amount of Securities set forth in Schedule I
hereto, the remaining Purchasers shall have the right to purchase all, but shall
not be under any obligation to purchase any, of the Securities, and if such
nondefaulting Purchasers do not purchase all the Securities, this Agreement will
terminate without liability to any nondefaulting Purchaser or the Company. In
the event of a default by any Purchaser as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as Citigroup Global Markets Inc. and the Company shall determine in order
that the required changes in the Offering Memorandum or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Purchaser of its liability, if any, to the Company, the
Subsidiary Guarantors or any nondefaulting Purchaser for damages occasioned by
its default hereunder.
10. The respective indemnities, agreements, representations and warranties
of and certificates delivered by the Company, the Subsidiary Guarantors and the
several Purchasers, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Purchaser or any controlling person of any
Purchaser, or the Company, or the Subsidiary Guarantors, or any officer or
director or controlling person of the Company or the Subsidiary Guarantors, and
shall survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company and the Subsidiary Guarantors shall not then be under any liability
to any Purchaser except as provided in Sections 6 and 8 hereof; but, if for any
other reason, the Securities are not delivered by or on behalf of the Company as
provided herein, the Company and the Subsidiary Guarantors
19
will, jointly and severally, reimburse the Purchasers through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Purchasers in making
preparations for the purchase, sale and delivery of the Securities, but the
Company and the Subsidiary Guarantors shall then be under no further liability
to any Purchaser except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or given
by you jointly as the Purchasers.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by mail or
facsimile transmission to Citigroup Global Markets Inc., 388 Greenwich Street,
New York, NY 10013, Attention: General Counsel; if to the Company shall be
delivered or sent by mail or facsimile transmission to the address of the
Company set forth in the Offering Memorandum, Attention: Secretary; and if to
any Subsidiary Guarantor, shall be delivered or sent by mail, telex or facsimile
transmission care of the Company; provided, however, that any notice to a
Purchaser pursuant to Section 8(c) hereof shall be delivered or sent by mail or
facsimile transmission to such Purchaser at its address set forth in its
Purchasers' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Purchasers, the Company, the Subsidiary Guarantors and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company,
the Subsidiary Guarantors and each person who controls the Company the
Subsidiary Guarantors or any Purchaser, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Purchaser shall be deemed a successor or assign by reason
merely of such purchase.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
15. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
16. Notwithstanding anything herein to the contrary, the Company is
authorized to disclose to any persons the U.S. federal and state income tax
treatment and tax structure of the potential transaction and all materials of
any kind (including tax opinions and other tax analyses) provided to the Company
relating to that treatment and structure, without the Purchasers imposing any
limitation of any kind. However, any information relating to the tax treatment
and tax structure shall remain confidential (and the foregoing sentence shall
not apply) to the extent necessary to enable any person to comply with
securities laws. For this purpose, "tax structure" is limited to any facts that
may be relevant to that treatment.
20
If the foregoing is in accordance with your understanding, please sign and
return to us, one for the Company and each of the Purchasers plus one for each
counsel, counterparts hereof, and upon the acceptance hereof by you, on behalf
of each of the Purchasers, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Purchasers and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Company for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
21
Very truly yours,
THE GOODYEAR TIRE & RUBBER
COMPANY,
by /s/ DARREN R. WELLS
---------------------------------
Name: Darren R. Wells
Title: Senior Vice President
Business Development and
Treasurer
22
SUBSIDIARY GUARANTORS
BELT CONCEPTS OF AMERICA, INC.,
by /s/ DARREN R. WELLS
--------------------------------
Name: Darren R. Wells
Title: Vice President
CELERON CORPORATION,
by /s/ DARREN R. WELLS
--------------------------------
Name: Darren R. Wells
Title: Vice President
COSMOFLEX, INC.,
by /s/ DARREN R. WELLS
--------------------------------
Name: Darren R. Wells
Title: Vice President
DAPPER TIRE CO, INC.,
by /s/ DARREN R. WELLS
--------------------------------
Name: Darren R. Wells
Title: Vice President
23
DIVESTED COMPANIES HOLDING
COMPANY,
By /s/ RONALD J. CARR
-------------------------------
Name: Ronald J. Carr
Title: Vice President
By /s/ RANDALL M. LOYD
-------------------------------
Name: Randall M. Loyd
Title: Vice President
DIVESTED LITCHFIELD PARK
PROPERTIES, INC.,
By /s/ RONALD J. CARR
-------------------------------
Name: Ronald J. Carr
Title: Vice President
By /s/ RANDALL M. LOYD
-------------------------------
Name: Randall M. Loyd
Title: Vice President
24
GOODYEAR CANADA INC.,
by /s/ J.S. COULTER
---------------------------
Name: J.S. Coulter
Title: President
by /s/ D.S. HAMILTON
---------------------------
Name: D.S. Hamilton
Title: Secretary
GOODYEAR FARMS, INC.,
by /s/ DARREN R. WELLS
---------------------------
Name: Darren R. Wells
Title: Vice President
GOODYEAR INTERNATIONAL
CORPORATION,
by /s/ DARREN R. WELLS
---------------------------
Name: Darren R. Wells
Title: Vice President
GOODYEAR WESTERN HEMISPHERE
CORPORATION,
by /s/ DARREN R. WELLS
---------------------------
Name: Darren R. Wells
Title: Vice President
25
THE KELLY-SPRINGFIELD TIRE
CORPORATION,
by /s/ DARREN R. WELLS
---------------------------
Name: Darren R. Wells
Title: Vice President
WHEEL ASSEMBLIES INC.,
by /s/ DARREN R. WELLS
---------------------------
Name: Darren R. Wells
Title: Vice President
WINGFOOT COMMERCIAL TIRE SYSTEMS, LLC,
By /s/ DARREN R. WELLS
---------------------------
Name: Darren R. Wells
Title: Vice President
WINGFOOT VENTURES EIGHT INC.,
By /s/ RANDALL M. LOYD
---------------------------
Name: Randall M. Loyd
Title: Vice President
26
Accepted and agreed as of the date first above
written:
Citigroup Global Markets Inc.
For itself and on behalf of the
several Purchasers listed
in Schedule I hereto.
by /s/ STEPHEN P. CUNNINGHAM
---------------------------
Name: Stephen P. Cunningham
Title: Managing Director
27
SCHEDULE I
Principal Amount of
Securities to be
Purchasers Purchased
---------- -------------------
Citigroup Global Markets Inc................... $ 84,000,000
BNP Paribas Securities Corp.................... $ 70,000,000
Credit Suisse First Boston LLC................. $ 70,000,000
Goldman, Sachs & Co............................ $ 70,000,000
J. P. Morgan Securities Inc.................... $ 70,000,000
Calyon Securities (USA) Inc.................... $ 9,000,000
Deutsche Bank Securities, Inc.................. $ 9,000,000
Natexis Bleichroeder Inc....................... $ 9,000,000
KBC Financial Products USA, Inc................ $ 9,000,000
------------
Total.......................................... $400,000,000
============
ANNEX I
Restrictions on Offers and Sales Outside the United States
In connection with offers and sales of Securities outside the United
States:
(a) Each Purchaser acknowledges that the Securities have not been
registered under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons except
pursuant to an exemption from, or in transactions not subject to, the
registration requirements of the Securities Act.
(b) Each Purchaser, severally and not jointly, represents, warrants and
agrees that:
(i) Such Purchaser has offered and sold the Securities, and will
offer and sell the Securities, (A) as part of their distribution at any
time and (B) otherwise until 40 days after the later of the commencement
of the offering of the Securities and the Closing Date, only in accordance
with Regulation S or Rule 144A or any other available exemption from
registration under the Securities Act.
(ii) None of such Purchaser or any of its affiliates or any other
person acting on its or their behalf has engaged or will engage in any
directed selling efforts with respect to the Securities, and all such
persons have complied and will comply with the offering restrictions
requirement of Regulation S.
(iii) At or prior to the confirmation of sale of any Securities sold
in reliance on Regulation S, such Purchaser will have sent to each
distributor, dealer or other person receiving a selling concession, fee or
other remuneration that purchases Securities from it during the
distribution compliance 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, as amended (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 their
distribution at any time or (ii) otherwise until 40 days after the
later of the commencement of the offering of the Securities and the
date of original issuance of the Securities, except in accordance
with Regulation S or Rule 144A or any other available exemption from
registration under the Securities Act. Terms used above have the
meanings given to them by Regulation S."
(iv) Such Purchaser has not and will not enter into any contractual
arrangement with any distributor with respect to the distribution of the
Securities, except with its affiliates or with the prior written consent
of the Company.
Terms used in paragraph (a) and this paragraph (b) and not otherwise defined in
this Agreement have the meanings given to them by Regulation S.
(c) Each Purchaser, severally and not jointly, represents, warrants and
agrees that:
(i) it has not offered or sold and, prior to the date six months
after the Closing Date, will not offer or sell any Securities to persons
in the United Kingdom except to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to
the public in the United Kingdom within the meaning of the United Kingdom
Public Offers of Securities Regulations 1995 (as amended);
(ii) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of Section 21 of the
United Kingdom Financial Services and Markets Act 2000 (the "FSMA"))
received by it in connection with the issue or sale of any Securities in
circumstances in which Section 21(1) of the FSMA does not apply to the
Company or the Subsidiary Guarantors;
(iii) it has complied and will comply with all applicable provisions
of the FSMA with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom;
(iv) it has not, directly or indirectly, offered or sold and will
not, directly or indirectly, offer or sell in the Netherlands any notes
with a denomination of less than EUR50,000 (or its foreign currency
equivalent) other than to persons who trade or invest in securities in the
conduct of a profession or business (which include banks, stockbrokers,
insurance companies, pension funds, other institutional investors and
finance companies and treasury departments of large enterprises) unless
one of the other exemptions from or exceptions to the prohibition
contained in Article 3 of the Dutch Securities Transactions Supervision
Act 1995 (Wet toezicht effectenverkeer 1995) is applicable and the
conditions attached to such exemption or exception are complied with; and
(v) the securities have not been and will not be registered under
the Securities and Exchange Law of Japan (the Securities and Exchange Law)
and each Purchaser has agreed that it will not offer or sell any
Securities, directly or indirectly, in Japan or to, or for the benefit of,
any resident of Japan (which term as used herein means any person resident
in Japan, including any corporation or other entity organized under the
laws of Japan), or to others for re-offering or resale, directly or
indirectly, in Japan or to a resident of Japan, except pursuant to an
exemption from the registration requirements of, and otherwise in
compliance with, the Securities and Exchange Law and any other applicable
laws, regulations and ministerial guidelines of Japan.
(vi) a prospectus has not been filed under applicable Canadian
legislation (including the applicable securities legislation of the
Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario
and Quebec) in connection with the sale or distribution of the Notes and
that it will not sell or otherwise distribute the Notes other than to
purchasers who:
2
(A) if in the Province of Quebec, is a "sophisticated purchaser" within
the meaning of Section 44 of the Securities Act (Quebec), or is a
"sophisticated purchaser" within the meaning of Section 45 of the
Securities Act (Quebec) purchasing for the portfolio of a person
managed solely by it, or is purchasing from a registered dealer with
an unrestricted practice Notes with an aggregate acquisition cost to
the purchaser of at least Cdn. $150,000;
(B) if in the Province of Alberta, British Columbia, Manitoba or
Saskatchewan, is a person entitled to purchase the Notes without the
benefit of a prospectus qualified under the applicable securities
legislation because it meets one or more of the criteria for an
"accredited investor" as defined in Multilateral Instrument 45-103;
or
(C) if in the Province of Ontario, is a person entitled to purchase the
Notes without the benefit of a prospectus qualified under Ontario
securities legislation because it meets one or more of the criteria
for an "accredited investor" under Ontario securities legislation;
and, in each such case, any such sale will comply with the applicable
securities legislation of the Province in which such Purchaser is located.
3