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EXHIBIT 10.13
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SECURITIES PURCHASE AGREEMENT
by and among
GLASSTECH HOLDING CO
GLASSTECH SUB CO.
and
CIBC WOOD GUNDY SECURITIES CORP.,
as Initial Purchaser
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Dated as of June 27, 1997
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS
Section 1.1. Definitions ................................................. 1
Section 1.2. Accounting Terms; Financial Statements....................... 7
ARTICLE II
ISSUE OF SECURITIES; PURCHASE AND SALE OF
SECURITIES; RIGHTS OF HOLDERS OF SECURITIES;
OFFERING BY INITIAL PURCHASER
Section 2.1. Issue of Securities ......................................... 7
Section 2.2. Purchase, Sale and Delivery of Securities.................... 8
Section 2.3. Registration Rights of Holders of Securities................. 9
Section 2.4. Offering by the Initial Purchaser............................ 9
ARTICLE III
REPRESENTATIONS AND WARRANTIES; RESALE OF SECURITIES
Section 3.1. Representations and Warranties of the Issuer................ 10
Section 3.2. Representations and Warranties of Holding................... 23
Section 3.3. Resale of Securities ....................................... 24
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
Section 4.1. Conditions Precedent to Obligations of
the Initial Purchaser..................................... 25
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ARTICLE V
COVENANTS
Section 5.1. Covenants of Holding and the Issuer......................... 29
ARTICLE VI
FEES
Section 6.1. Costs, Expenses and Taxes .................................. 32
ARTICLE VII
INDEMNITY
Section 7.1. Indemnity .................................................. 33
Section 7.2. Contribution ............................................... 37
Section 7.3. Registration Rights Agreements ............................. 38
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Survival of Provisions ..................................... 38
Section 8.2. Termination ................................................ 38
Section 8.3. No Waiver; Modifications in Writing......................... 39
Section 8.4. Information Supplied by the Initial Purchaser............... 40
Section 8.5. Communications ............................................. 40
Section 8.6. Execution in Counterparts .................................. 41
Section 8.7. Successors ................................................. 41
Section 8.8. Governing Law .............................................. 42
Section 8.9. Severability of Provisions ................................. 42
Section 8.10. Headings ................................................... 42
SIGNATURE PAGE
EXHIBITS
Exhibit 1 Form of Opinion of Baker and Hostetler
Exhibit 2 Form of Opinion of Cahill Gordon & Reindel
Exhibit 3 Form of Report of Brooks & Kushman
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SECURITIES PURCHASE AGREEMENT, dated as of June 27, 1997 (the
"AGREEMENT"), by and among GLASSTECH HOLDING CO., a Delaware corporation
("HOLDING"), GLASSTECH SUB CO., a Delaware corporation (the "ISSUER") and a
wholly owned subsidiary of Holding, and CIBC WOOD GUNDY SECURITIES CORP. (the
"INITIAL PURCHASER").
In consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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Section 1.1. DEFINITIONS. As used in this Agreement, and unless the
context requires a different meaning, the following terms have the meanings
indicated:
"ACCREDITED INVESTOR" has the meaning provided therefor in Section 3.2
of this Agreement.
"ACT" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder.
"AFFILIATE" means, with respect to any Person, any other Person which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, the Person in question. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by" and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by agreement
or otherwise; PROVIDED, HOWEVER, that beneficial ownership of at least 10% of
the voting securities of a Person shall be deemed to be control.
"AGREEMENT" means this Agreement, as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"BASIC DOCUMENTS" means, collectively, the Indenture, the Supplemental
Indenture, the Notes, the Registration Rights
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Agreement, the Warrant Agreement, the Warrants, the Common Stock Registration
Rights Agreement and this Agreement.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of New York
are authorized or obligated by law to close.
"CLASS A COMMON STOCK" means the Class A Common Stock, par value $0.01
per share, of Holding.
"CLOSING" has the meaning provided therefor in Section 2.2(b) of this
Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Act.
"COMMON STOCK REGISTRATION RIGHTS AGREEMENT" means the common stock
registration rights agreement between Holding, the Initial Purchaser and certain
stockholders named therein.
"COMMONLY CONTROLLED ENTITY" has the meaning provided therefor in
Section 3.1(t).
"CREDIT AGREEMENT" has the meaning provided therefor in Section 2.1 of
this Agreement.
"DEFAULT" means any event, act or condition which, with notice or lapse
of time or both, would constitute an Event of Default.
"EFFECTIVE TIME" has the meaning provided therefor in Section 2.1 of
this Agreement.
"ENVIRONMENTAL LAW" has the meaning provided therefor in Section
3.1(aa).
"EQUITY CONTRIBUTION" has the meaning provided therefor in Section 2.1
of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
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"ERNST & YOUNG" has the meaning set forth in Section 1.3(b) hereof.
"EVENT OF DEFAULT" means any event defined as an Event of Default in
the Indenture.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder.
"EXCHANGE NOTES" shall have the meaning provided therefor in the Note
Registration Rights Agreement.
"EXISTING NOTES" means Glasstech's 10% Senior Notes due 2001.
"FINAL MEMORANDUM" has the meaning provided therefor in Section 2.1 of
this Agreement.
"FOREIGN PLANS" has the meaning provided therefor in Section 3.1(t).
"GLASSTECH" has the meaning provided therefor in Section 2.1 of this
Agreement.
"GLASSTECH ENTITIES" has the meaning provided therefor in Section 2.1
of this Agreement.
"HOLDING" has the meaning provided therefor in the introductory
paragraph of this Agreement.
"INDEMNIFIED PARTY" has the meaning provided therefor in Section 7.1(c)
of this Agreement.
"INDEMNIFYING PARTY" has the meaning provided therefor in Section
7.1(c) of this Agreement.
"INDENTURE" means the indenture dated as of July 2, 1997 by and between
the Issuer and the Trustee under which the Notes will be issued.
"INITIAL PURCHASER" has the meaning provided therefor in the
introductory paragraph of this Agreement.
"INTELLECTUAL PROPERTY RIGHTS" has the meaning provided therefor in
Section 3.1(x).
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"ISSUER" has the meaning provided therefor in the introductory
paragraph of this Agreement.
"LIEN" means, with respect to any property or assets of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge,
easement, encumbrance, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with respect to
such property or assets (including without limitation, any Capitalized Lease
Obligation (as defined in the Indenture), conditional sales, or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"MATERIAL ADVERSE EFFECT" means, with respect to the Glasstech Entities
and Glasstech's Subsidiaries and, at and immediately after the Effective Time,
the Surviving Company and its Subsidiaries, a material adverse effect on the
business, condition (financial or otherwise), results of operations or prospects
of the Glasstech Entities and Glasstech's Subsidiaries and, at and immediately
after the Effective Time, the Surviving Company and its Subsidiaries, taken as a
whole; PROVIDED that, with respect to the Glasstech Entities and, at and
immediately after the Effective Time, the Surviving Company, "Material Adverse
Effect" shall also mean a material adverse effect on the ability of any of the
Glasstech Entities and, at and immediately after the Effective Time, the
Surviving Company to perform its respective obligations under this Agreement or
the Other Transaction Documents.
"MEMORANDUM" has the meaning provided therefor in Section 2.1 of this
Agreement.
"MERGER" has the meaning provided therefor in Section 2.1 of this
Agreement.
"MERGER AGREEMENT" has the meaning provided therefor in Section 2.1 of
this Agreement.
"NOTES" means the 12:% Senior Notes due 2004 of the Issuer.
"OFFERING" has the meaning provided therefor in Section 2.1 of this
Agreement.
"OFFERING MATERIALS" has the meaning provided therefor in Section 7.1
of this Agreement.
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"OTHER TRANSACTION DOCUMENTS" means the Merger Agreement and the
Revolving Credit Facility.
"PERSON" means any individual, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint-stock company,
government (or an agency or political subdivision thereof) or other entity of
any kind.
"PORTAL" means the Private Offerings, Resales and Trading through
Automated Linkages Market.
"PRELIMINARY MEMORANDUM" has the meaning provided therefor in Section
2.1 of this Agreement.
"PRIVATE EXCHANGE NOTES" shall have the meaning provided therefor in
the Registration Rights Agreement.
"PROCEEDING" has the meaning provided therefor in Section 7.1(c) of
this Agreement.
"QIB" has the meaning provided therefor in Section 3.2 of this
Agreement.
"REGISTRATION RIGHTS AGREEMENT" means the registration rights agreement
by and between the Issuer and the Initial Purchaser relating to the Notes.
"REVOLVING CREDIT FACILITY" has the meaning provided therefor in the
Final Memorandum.
"SECURITIES" has the meaning provided therefor in Section 2.1 of this
Agreement.
"STATE" means each of the states of the United States, the District of
Columbia and the Commonwealth of Puerto Rico.
"STATE COMMISSION" means any agency of any State having jurisdiction to
enforce such State's securities laws.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or acquired, (i) in the case of a corporation,
of which more than 50% of the total voting power of the capital stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, officers or trustees thereof is held by such first-named Person or
any of its Subsidiaries; or
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(ii) in the case of a partnership, joint venture, association or other business
entity, with respect to which such first-named Person or any of its Subsidiaries
has the power to direct or cause the direction of the management and policies of
such entity by contract or otherwise or if in accordance with generally accepted
accounting principles such entity is consolidated with the first-named Person
for financial statement purposes.
"SUPPLEMENTAL INDENTURE" has the meaning provided therefor in Section
2.1 of this Agreement.
"SURVIVING COMPANY" has the meaning provided therefor in Section 2.1 of
this Agreement.
"TAXES" has the meaning provided therefor in Section 3.1(w) of this
Agreement.
"TIME OF PURCHASE" has the meaning provided therefor in Section 2.2(b)
of this Agreement.
"TRANSACTION DOCUMENTS" means the Basic Documents and the Other
Transaction Documents.
"TRANSACTIONS" means the Merger, the Offering, the Equity Contribution
and the Revolving Credit Facility.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder.
"TRUSTEE" means United States Trust Company of New York, as trustee
under the Indenture.
"UNITS" has the meaning provided therefor in Section 2.1 of this
Agreement.
"WARRANT AGENT" means United States Trust Company of New York, as
warrant agent under the Warrant Agreement.
"WARRANT AGREEMENT" means the warrant agreement dated as of July 2,
1997 by and between Holding and the Warrant Agent under which the Warrants will
be issued.
"WARRANT SHARES" means the shares of Class A Common Stock issued or
issuable upon the exercise of Warrants.
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"WARRANTS" means the warrants of Holding, each Warrant initially
entitling the holder thereof to purchase 0.01253157 shares of Class A Common
Stock of Holding.
Section 1.2. ACCOUNTING TERMS; FINANCIAL STATEMENTS. All accounting
terms used herein not expressly defined in this Agreement shall have the
respective meanings given to them in accordance with generally accepted
accounting principles in the United States as the same may be in effect from
time to time.
ARTICLE II
ISSUE OF SECURITIES; PURCHASE AND SALE OF
SECURITIES; RIGHTS OF HOLDERS OF SECURITIES;
OFFERING BY INITIAL PURCHASER
Section 2.1. ISSUE OF SECURITIES. Holding and the Issuer have
authorized the issuance of 70,000 units (the "UNITS") consisting of $1,000
principal amount of the Notes and one Warrant (the "OFFERING"). The Notes are to
be issued pursuant to the Indenture and the Warrants are to be issued pursuant
to the Warrant Agreement. The Units, Notes and Warrants are referred to herein
as the "SECURITIES". Each Note will be substantially in the form of the Note set
forth as Exhibit A to the Indenture. Each Warrant will be substantially in the
form of the Warrant set forth as Exhibit A to the Warrant Agreement.
The Securities will be offered and sold to the Initial Purchaser
without being registered under the Act, in reliance on exemptions therefrom.
The Securities are being offered in connection with a Merger Agreement
dated June 5, 1997 (as amended through the date hereof and together with all
ancillary agreements entered into therewith, the "MERGER AGREEMENT"). Pursuant
to the Merger Agreement, (i) the net proceeds of the Offering, together with the
proceeds from an equity contribution of up to $15,000,000 (the "EQUITY
CONTRIBUTION") from Holding, will be used by the Issuer to acquire all of the
outstanding capital stock of Glasstech, Inc. ("GLASSTECH") from its existing
stockholders and (ii) the Issuer will be merged with and into Glasstech (the
"MERGER"), with Glasstech surviving the Merger (the "SURVIVING COMPANY"). In
addition, concurrently with the consummation of the Merger, the Surviving
Company will execute and deliver a credit agreement (the "CREDIT AGREEMENT")
con-
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sisting of a $10.0 million revolving credit facility (the "REVOLVING CREDIT
FACILITY"). The time of consummation of the Merger is referred to herein as the
"EFFECTIVE TIME."
At the Effective Time, the Surviving Company and the Trustee will enter
into a first supplemental indenture to the Indenture (the "SUPPLEMENTAL
INDENTURE") providing for the express assumption by the Surviving Company of the
covenants, agreements and undertakings of the Issuer in the Indenture and under
the Notes.
In connection with the sale of the Securities, Holding, the Issuer and
Glasstech (collectively, the "GLASSTECH ENTITIES") have prepared a preliminary
offering memorandum dated June 10, 1997 (the "PRELIMINARY MEMORANDUM") and
prepared a final offering memorandum dated June 27, 1997 (the "FINAL MEMORANDUM"
and, together with the Preliminary Memorandum, the "MEMORANDUM") setting forth
or including a description of the terms of the Notes, the terms of the Offering,
a description of the Glasstech Entities and Glasstech's Subsidiaries and any
material developments relating to the Glasstech Entities and Glasstech's
Subsidiaries occurring after the date of the most recent financial statements
included therein.
Section 2.2. PURCHASE, SALE AND DELIVERY OF SECURITIES. (a) On the
basis of the representations, warranties, agreements and covenants herein
contained and subject to the terms and conditions herein set forth, Holding and
the Issuer agree that they will sell to the Initial Purchaser, and the Initial
Purchaser agrees that it will purchase at the Time of Purchase, 70,000 Units
consisting of $70,000,000 aggregate principal amount of the Notes of the Issuer
and 877.21 Warrants to purchase Class A Common Stock of Holding at a price equal
to 97.00% of the principal amount of the Notes. The Notes will be issued by the
Issuer and the warrants will be issued by Holding.
Each Unit will consist of $1,000 principal amount of the Notes and one
Warrant to purchase 0.01253157 shares of Class A Common Stock of Holding. The
Notes and the Warrants will be separately transferable immediately after the
Issue Date.
(b) The purchase, sale and delivery of the Securities will take place
at a closing (the "CLOSING") at the offices of Baker & Hostetler LLP, 3200
National City Center, Cleveland, Ohio, at 10:00 A.M., New York time, on
July 2, 1997, or such later date and time, if any, as the Initial Pur-
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chaser, Holding and the Issuer shall agree. The time at which such Closing is
concluded is herein called the "TIME OF PURCHASE."
(c) One or more certificates in definitive form for each of the Notes
and the Warrants that the Initial Purchaser has agreed to purchase hereunder,
and in such denomination or denominations and registered in such name or names
as the Initial Purchaser requests upon notice to the Issuer at least 48 hours
prior to the Closing, shall be delivered by or on behalf of Holding, in the case
of the Warrants, and the Issuer, in the case of the Notes, to the Initial
Purchaser, against payment by or on behalf of the Initial Purchaser of the
purchase price therefor by wire transfer of immediately available funds wired in
accordance with the written instructions of Holding and the Issuer. Holding
shall make such certificate or certificates for the Warrants available and the
Issuer will make such certificate or certificates for the Notes available for
checking and packaging by the Initial Purchaser at the offices of the Initial
Purchaser, or such other place as the Initial Purchaser may designate, at least
24 hours prior to the Closing.
Section 2.3. REGISTRATION RIGHTS OF HOLDERS OF SECURITIES. The Initial
Purchaser and its direct and indirect transferees of the Notes shall have such
rights with respect to the registration thereof under the Act and qualification
of the Indenture under the Trust Indenture Act as are set forth in the
Registration Rights Agreement. The Initial Purchaser and its direct and indirect
transferees of the Warrants shall have such rights with respect to the
registration thereof under the Act as are set forth in the Common Stock
Registration Rights Agreement.
Section 2.4. OFFERING BY THE INITIAL PURCHASER. The Initial Purchaser
proposes to make an offering of the Securities at the price and upon the terms
set forth in the Final Memorandum, as soon as practicable after this Agreement
is entered into and as in the judgment of the Initial Purchaser is advisable.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES;
RESALE OF SECURITIES
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Section 3.1. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The Issuer
represents and warrants to and agrees with the Initial Purchaser as follows:
(a) The Final Memorandum, as of its date and at the Time of
Purchase, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this Section 3.1(a) do not apply to statements or omissions made in
reliance upon and in conformity with information relating to the
Initial Purchaser furnished to the Issuer in writing by the Initial
Purchaser expressly for use in the Final Memorandum or any amendment or
supplement thereto or relating to the manner of sale of the Notes by
the Initial Purchaser.
(b) The audited consolidated financial statements of Glasstech
and its Subsidiaries included in the Final Memorandum present fairly
the financial position, results of operations and cash flows of
Glasstech and its Subsidiaries at the dates and for the periods to
which they relate and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis, except as
otherwise stated therein. The summary and selected financial data in
the Final Memorandum present fairly in all material respects the
financial information shown therein and have been prepared and compiled
on a basis consistent with the audited financial statements included
therein, except as otherwise stated therein. Ernst & Young LLP ("ERNST
& YOUNG") is an independent public accounting firm within the meaning
of the Act and the rules and regulations promulgated thereunder. The
pro forma financial statements (including the notes thereto) and the
other pro forma financial information included in the Final Memorandum
have been prepared using assumptions which Glasstech believes to be
reasonable and in accordance with the applicable requirements of the
Act and include all adjustments necessary to present fairly the pro
forma financial information included within the Final Memorandum at the
respective dates and for the respective periods indicated.
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(c) Each of the Glasstech Entities is and, immediately after
the Effective Time, the Surviving Company will be, a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has or, in the case of the Surviving Company,
will have filed all reports with the Secretary of State of Delaware
required to obtain a certificate with respect to continued subsistence
in good standing from that office. Each Subsidiary of Glasstech is a
corporation duly incorporated or organized, validly existing and in
good standing under the laws of the state or other jurisdiction of its
incorporation or organization. Each of Glasstech and its Subsidiaries
is and, immediately after the Effective Time, each of the Surviving
Company and its Subsidiaries will be, duly qualified and in good
standing as a foreign corporation, and authorized to do business, in
each jurisdiction in which the ownership or leasing of any property or
the character of its operations makes such qualification necessary and
in which the failure so to qualify is reasonably likely to have a
Material Adverse Effect.
(d) At and as of the Effective Time, the Surviving Company
will have the authorized, issued and outstanding capitalization of
1,000 shares of common stock, par value $0.01 per share. All of the
issued and outstanding shares of capital stock of the Glasstech
Entities and Glasstech's Subsidiaries are and, at and as of the
Effective Time, of the Surviving Company and its Subsidiaries will be
validly issued, fully paid and nonassessable and none of such shares
were issued in violation of any preemptive or similar rights. Except as
set forth in the Final Memorandum and the Merger Agreement in the case
of the Glasstech Entities and the Glasstech Subsidiaries, and except as
set forth in the Final Memorandum in the case of the Surviving Company
and its Subsidiaries, (i) there are no outstanding subscriptions,
options, warrants, rights, convertible securities or other binding
agreements or commitments of any character obligating any of the
Glasstech Entities or Glasstech's Subsidiaries or, at and as of the
Effective Time, the Surviving Company or any of its Subsidiaries, to
issue any securities and (ii) there is no agreement, understanding or
arrangement among any of the Glasstech Entities or any of Glasstech's
Subsidiaries and, at and as of the Effective Time, there will be no
agreement, understanding or arrangement among the Surviving Company or
its Subsidiaries and their respective stockholders or any other Person
relating to the ownership or disposition of any capital stock in any of
the Glasstech Entities or any of Glasstech's Subsidiaries or the
Surviving Company or any of its Subsidiaries, the election of directors
of any of the Glasstech Entities or any
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of Glasstech's Subsidiaries or the Surviving Company or any of its
Subsidiaries or the governance of any of the Glasstech Entities' or any
of Glasstech's Subsidiaries' or the Surviving Company's or any of its
Subsidiaries' affairs, and such agreements, arrangements or
understandings will not be breached or violated as a result of the
execution and delivery of, or the consummation of the transactions
contemplated by, this Agreement and the Other Transaction Documents.
(e) This Agreement has been duly authorized, executed and
delivered by the Issuer and (assuming the due authorization, execution
and delivery by the Initial Purchaser) is a valid and legally binding
agreement of the Issuer and, at and as of the Effective Time, will be a
valid and legally binding agreement of the Surviving Company,
enforceable against the Issuer and, at and as of the Effective Time,
against the Surviving Company in accordance with its terms except (i)
that the enforcement hereof may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally, and
to general principles of equity and the discretion of the court before
which any proceeding therefor may be brought and (ii) as any rights to
indemnity or contribution hereunder may be limited by federal and state
securities laws and public policy considerations.
(f) The Indenture has been duly authorized by the Issuer and,
when executed and delivered by the Issuer (assuming the due
authorization, execution and delivery by the Trustee), will constitute
a valid and legally binding agreement of the Issuer, enforceable
against it in accordance with its terms except (i) that the enforcement
thereof may be subject to bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, and to
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought and (ii) as any rights to
indemnity or contribution thereunder may be limited by federal and
state securities laws and public policy considerations.
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(g) The Supplemental Indenture has been duly and validly
authorized by the Issuer and Glasstech. The Supplemental Indenture,
when executed and delivered by the Surviving Company (assuming the due
authorization, execution and delivery thereof by the Trustee), will be
duly executed and delivered and will constitute the valid and legally
binding obligation of the Surviving Company, enforceable against the
Surviving Company in accordance with its terms, except (i) that the
enforcement thereof may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally, and
to general principles of equity and the discretion of the court before
which any proceeding therefor may be brought and (ii) as any rights to
indemnity or contribution thereunder may be limited by federal and
state securities laws and public policy considerations.
(h) The Registration Rights Agreement has been duly authorized
by the Issuer and (assuming the due authorization, execution and
delivery by the Initial Purchaser) is a valid and legally binding
agreement of the Issuer and, at and as of the Effective Time, will be a
valid and legally binding agreement of the Surviving Company,
enforceable against it in accordance with its terms except (i) that the
enforcement thereof may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally, and
to general principles of equity and the discretion of the court before
which any proceeding therefor may be brought and (ii) as any rights to
indemnity or contribution thereunder may be limited by federal and
state securities laws and public policy considerations.
(i) The Notes have each been duly authorized by the Issuer
and, when executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of the Indenture and delivered to and
paid for by the Initial Purchaser in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture and will
constitute valid and legally binding obligations of the Issuer and,
following the execution of the Supplemental Indenture, the Surviving
Company, enforceable in accordance with their terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
now or hereafter in effect relating to credi-
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tors' rights generally, and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought.
(j) The Exchange Notes and the Private Exchange Notes have
each been duly authorized by the Issuer and Glasstech and, when
executed by the Surviving Company and authenticated by the Trustee in
accordance with the provisions of the Registration Rights Agreement and
the Indenture, as amended by the Supplemental Indenture, will be
entitled to the benefits of the Indenture, as amended by the
Supplemental Indenture, and will constitute valid and legally binding
obligations of the Surviving Company, enforceable in accordance with
their terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (ii) general principles of equity and
the discretion of the court before which any proceeding therefor may be
brought.
(k) Immediately after the consummation of the Transactions
(including the use of proceeds from the sale of Notes at the Time of
Purchase), to the best of the Issuer's knowledge: (i) on a pro forma
basis, the fair value and present fair saleable value of the Surviving
Company's assets would exceed the Surviving Company's stated
liabilities and identified contingent liabilities; (ii) the Surviving
Company should be able to pay its debts as they become absolute and
mature; and (iii) the capital remaining in the Surviving Company after
the Transactions would not be unreasonably small for the business in
which the Surviving Company is engaged, as management has indicated it
is now conducted and is proposed to be conducted following the
consummation of the Transactions.
(l) Each of the Glasstech Entities has and, immediately after
the Effective Time, the Surviving Company will have all requisite
corporate power and authority to (i) execute, deliver and perform its
obligations under each of the Basic Documents (to the extent each is a
party thereto), (ii) execute, deliver and perform its obligations under
each of the Other Transaction Documents (to the extent each is a party
thereto), (iii) execute, deliver and perform its obligations under all
other agreements and instruments (to the extent each is a party
thereto) to be executed and delivered by each of them pursuant to or in
connection with each of the Basic Documents
18
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and the Other Transaction Documents, (iv) in the case of the Issuer,
issue the Notes and, in the case of Holding, issue the Warrants in the
manner and for the purpose contemplated by this Agreement and (v)
consummate each of the Transactions.
(m) Subsequent to the date as of which information is given in
the Final Memorandum to the date hereof, except as contemplated in the
Final Memorandum, there has not been (i) any event or condition that
has had or that could reasonably be expected to have a Material Adverse
Effect, (ii) any transaction entered into by any of the Glasstech
Entities or any of Glasstech's Subsidiaries, other than in the ordinary
course of business, that is material to the Glasstech Entities and
Glasstech's Subsidiaries, taken as a whole, or (iii) any dividend or
distribution of any kind declared, paid or made by any of the Glasstech
Entities on its capital stock.
(n) Except as set forth in the Final Memorandum, there is no
action, suit, investigation or proceeding, governmental or otherwise,
pending or, to the best knowledge of the Issuer, threatened to which
the Glasstech Entities or any of Glasstech's Subsidiaries is or would
be a party or of which the properties or assets of the Glasstech
Entities or any of Glasstech's Subsidiaries are or may be the subject
that (i) seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge the issuance and sale of the Notes by the Issuer or
any of the other transactions contemplated hereby, (ii) questions the
legality or validity of any such transactions or seeks to recover
damages or obtain other relief in connection with any such transactions
or (iii) could reasonably be expected to have a Material Adverse
Effect.
(o) The execution, delivery and performance by each of the
Glasstech Entities and, at and immediately after the Effective Time,
the Surviving Company of the Transaction Documents (to the extent each
is a party thereto), the issuance and sale by the Issuer and Holding of
the Securities, and the execution, delivery and performance by each of
the Glasstech Entities and, at and immediately
19
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after the Effective Time, the Surviving Company of all other agreements
and instruments (to the extent each is a party thereto) to be executed
and delivered by it pursuant hereto or thereto or in connection
herewith or therewith or in connection with any of the Transactions,
and compliance by each of the Glasstech Entities and, immediately after
the Effective Time, the Surviving Company with the terms and provisions
hereof and thereof, do not and will not (i) (assuming compliance with
all applicable state securities or "Blue Sky" laws) violate any
provision of any law, rule or regulation (including, without
limitation, Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System), order, writ, judgment, decree, determination
or award presently in effect or in effect at the Effective Time having
applicability to any such party, (ii) conflict with or result in a
breach of or constitute a default under the certificate of
incorporation or by-laws (or similar organizational document) of any of
the Glasstech Entities or any of Glasstech's Subsidiaries or, at and
immediately after the Effective Time, the Surviving Company, or, as of
the Effective Time, any indenture or loan or credit agreement, or any
other material agreement or instrument, to which any Glasstech Entity
or the Surviving Company or any of its Subsidiaries is a party or by
which any Glasstech Entity or the Surviving Company or any of its
Subsidiaries or any of their respective properties or assets may be
bound or affected, or (iii) except as contemplated by the Basic
Documents or the Revolving Credit Facility, result in, or require the
creation or imposition of, any Lien upon or with respect to any of the
properties or assets now owned or hereafter acquired by the Issuer or
any of its Subsidiaries, except, in each case, where such violation,
conflict, default or creation or imposition of any Lien would not
(individually or in the aggregate) be reasonably likely to have a
Material Adverse Effect.
(p) Each of the Other Transaction Documents and each agreement
or instrument (other than the Basic Documents) executed and delivered
by each of the Glasstech Entities and, at and immediately after the
Effective Time, the Surviving Company in connection with the Basic
Documents and the Transactions (to the extent each is a party thereto)
has been duly and validly authorized, and, when executed and delivered
by it, will constitute a valid and legally binding obligation
enforceable against it in accordance with its terms, except (i) that
the enforcement thereof may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally, and
to general principles of equity and the discretion of the court before
which any proceeding therefor may be brought and (ii) as any rights to
indemnity and
20
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contribution hereunder and thereunder may be limited by applicable law.
(q) None of the Glasstech Entities or any of Glasstech's
Subsidiaries is currently or, immediately after the Effective Time,
will be, and neither the Surviving Company nor any of its Subsidiaries,
immediately after the Effective Time, will be, (i) in violation of its
respective certificate of incorporation or by-laws (or similar
organizational document (including any partnership agreement or
certificate of limited partnership)), (ii) in default (nor will an
event occur which with notice or passage of time or both would
constitute such a default) under or in violation of any indenture or
loan or credit agreement or any other material agreement or instrument
to which it is a party or by which it or any of its properties or
assets may be bound or affected (except as set forth in the Final
Memorandum), (iii) in violation of any order of any court, arbitrator
or governmental body, or (iv) (assuming compliance with all applicable
state securities or "Blue Sky" laws) in violation of or will have
violated any statute, rule or regulation of any governmental authority,
except in each case, which default or violation (individually or in the
aggregate) could reasonably be expected to (y) affect the legality,
validity or enforceability of any of the Basic Documents in any
material respect or (z) have a Material Adverse Effect.
(r) Except as set forth in the Final Memorandum, and assuming
the accuracy of the Initial Purchaser's representations and warranties
set forth in Section 3.2 hereof, and the due performance by the Initial
Purchaser of the covenants and agreements set forth in Section 3.2
hereof, no authorization, consent, approval, license, qualification or
formal exemption from, nor any filing, declaration or registration
with, any court, governmental agency or regulatory authority or any
securities exchange is required in connection with the execution,
delivery or performance by any Glasstech Entity or, at and immediately
after the Effective Time, the Surviving Company or any of its
Subsidiaries (to the extent they are a party thereto) of any of the
Basic Documents or any of the Other Transaction Documents, except (i)
as may be required under state securities or "blue sky" laws or the
laws of any foreign jurisdiction in connection with the offer and sale
of the Notes or (ii) as would not (individually or in the aggregate) be
reasonably likely to have a Material Adverse Effect. All such
authorizations, consents, approvals, li-
21
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censes, qualifications, exemptions, filings, declarations and
registrations set forth in the Final Memorandum (other than as
disclosed therein) which are required to have been obtained by the date
hereof have been obtained or made, as the case may be, and are in full
force and effect and not the subject of any pending or, to the
knowledge of the Issuer, threatened attack by appeal or direct
proceeding or otherwise.
(s) The Issuer is not, and immediately after the execution of
the Supplemental Indenture, the Surviving Company will not be, an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(t) (i) No Reportable Event (as defined in Section 4043 of
ERISA) has occurred during the five-year period prior to the date on
which this representation is made with respect to any Employee Benefit
Plan (as defined in Section 3(3) of ERISA), (ii) Glasstech and its
Subsidiaries have complied in all material respects with the applicable
provisions of ERISA and the code in connection with each Employee
Benefit Plan, (iii) neither Glasstech nor any person or entity treated
with Glasstech as a single employer under Section 414 of ERISA (a
"COMMONLY CONTROLLED ENTITY") has had a complete or partial withdrawal
from any Multiemployer Plan (as defined in ERISA), (iv) neither
Glasstech nor any Commonly Controlled Entity would become subject to
any liability under ERISA if Glasstech or any such Commonly Controlled
Entity were to withdraw completely from all Multiemployer Plans as of
the valuation date most closely preceding the date on which this
representation is made, and (v) no such Multiemployer Plan is in
reorganization or insolvent, which, in any such case under clause (i),
(ii), (iii), (iv) or (v), individually or in the aggregate, will result
in a Material Adverse Effect.
(u) At and as of the Effective Time, the Surviving Company
will have good and marketable title to all real property and good title
to all personal property described in the Final Memorandum as being
owned by it and good and marketable title to a leasehold estate in the
real and personal property described in the Final Memorandum as being
leased by it free and clear of all liens, charges, encumbrances or
restrictions, except as described in the Final Memorandum or to the
extent the failure to have such title or the existence of such liens,
charges, encum-
22
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brances or restrictions would not, individually or in the
aggregate, have a Material Adverse Effect. All leases, contracts and
agreements to which any Glasstech Entity is or, at and as of the
Effective Time, the Surviving Company will be, a party or by which any
of them is bound are valid and enforceable against such party, and are
valid and enforceable against the other party or parties thereto and
are in full force and effect with only such exceptions as would not,
individually or in the aggregate, have a Material Adverse Effect.
(v) No form of general solicitation or general advertising was
used by any Glasstech Entity or any of Glasstech's Subsidiaries or any
of their respective representatives in connection with the offer and
sale of the Notes. None of the Glasstech Entities or any of Glasstech's
Subsidiaries nor any Person authorized to act for any of them has,
either directly or indirectly, sold or offered for sale any of the
Notes or any other similar security of the Issuer to, or solicited any
offers to buy any thereof from, or has otherwise approached or
negotiated in respect thereof with, any Person or Persons other than
with or through the Initial Purchaser; and the Issuer agrees that none
of the Glasstech Entities or any of Glasstech's Subsidiaries and, at
and as of the Effective Time, the Surviving Company, or any Person
acting on its or their behalf will sell or offer for sale any
Securities to, or solicit any offers to buy any Securities from, or
otherwise approach or negotiate in respect thereof with, any Person or
Persons so as thereby to bring the issuance or sale of any of the
Securities within the provisions of Section 5 of the Act.
(w) All tax returns required to be filed by the Glasstech
Entities or any of Glasstech's Subsidiaries in any jurisdiction
(including foreign jurisdictions) have been duly filed and all taxes,
assessments, fees and other charges including, without limitation,
withholding taxes, penalties and interest ("TAXES") due or claimed to
be due have been paid, other than those Taxes being contested in good
faith and for which adequate reserves or accruals have been established
in accordance with generally accepted accounting principles, except
where the failure to file such returns or to pay such Taxes is not
reasonably likely to have, singly or in the aggregate, a Material
Adverse Effect. The Issuer knows of no actual or proposed additional
tax assessments for any fiscal period against the Glasstech Entities or
any of Glasstech's Subsidiaries
23
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or, immediately after the Effective Time, the Surviving Company and its
Subsidiaries that, individually or in the aggregate, is reasonably
likely to have a Material Adverse Effect.
(x) Glasstech and its Subsidiaries own or possess and, at and
as of the Effective Time, the Surviving Company and its Subsidiaries
will own or possess, the patents, patent rights, licenses, inventions,
trademarks, service marks, trade names, copyrights and know-how,
including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures
(collectively, the "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct
the businesses now or proposed to be operated by it as described in the
Final Memorandum, except as would not, individually or in the
aggregate, have a Material Adverse Effect, and none of the Glasstech
Entities or Glasstech's Subsidiaries has and, at and as of the
Effective Time, the Surviving Company or its Subsidiaries will not
have, received any notice of infringement of or conflict with (or know
of any such infringement of or conflict with) alleged rights of others
with respect to any Intellectual Property Rights which, if such alleged
infringement or conflict were sustained, would have a Material Adverse
Effect.
(y) Each of the Transactions and the Transaction Documents
conform in all material respects to the descriptions thereof in the
Final Memorandum.
(z) Assuming the accuracy of the Initial Purchaser's
representations and warranties set forth in Section 3.2 hereof, and the
due performance by the Initial Purchaser of the covenants and
agreements set forth in Section 3.2 hereof, the offer and sale of the
Securities to the Initial Purchaser in the manner contemplated by this
Agreement and the Memorandum does not require registration under the
Act and the Indenture does not require qualification under the Trust
Indenture Act of 1939, as amended.
(aa) Except as described in the Final Memorandum, each of the
Glasstech Entities and Glasstech's Subsidiaries is and, at and as of
the Effective Time, the Surviving Company and each of its Subsidiaries
will be, in compliance with all federal, state, local and foreign laws,
and any rules, regulations, orders, decrees, judgments or injunctions
issued or promulgated thereunder relating to pollution and protection
of public and employee health and
24
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the environment ("ENVIRONMENTAL LAW") and with the terms and conditions
of any permit, license or approval required thereunder in connection
with the ownership, operation or use of its business, property and
assets where the failure to be in such compliance could reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect; except as disclosed in the Final Memorandum, and to the
knowledge of the Issuer, none of the Glasstech Entities or Glasstech's
Subsidiaries is, and at and as of the Effective Time none of the
Surviving Company or its Subsidiaries will be, subject to any
liability, absolute or contingent, under any Environmental Law which
liability would, individually or in the aggregate, be reasonably likely
to result in a Material Adverse Effect; except as disclosed in the
Final Memorandum, there is no civil, criminal or administrative action,
suit, demand, hearing, notice of violation or deficiency,
investigation, proceeding or notice of potential responsibility or
liability or demand letter or request for information pending or, to
the knowledge of the Issuer, threatened against any of the Glasstech
Entities or any of Glasstech's Subsidiaries under any Environmental Law
which, if determined adversely to such Glasstech Entity or any such
Subsidiary, would, individually or in the aggregate, be reasonably
likely to result in a Material Adverse Effect.
(bb) Except as set forth in the Final Memorandum, there is no
strike, labor dispute, slowdown or work stoppage with the employees of
Glasstech or any of its Subsidiaries which is pending or, to the best
knowledge of the Issuer, threatened.
(cc) Each of the Glasstech Entities and Glasstech's
Subsidiaries carry and, immediately after the Effective Time, each of
the Surviving Company and its Subsidiaries will carry, insurance
(including self insurance) in such amounts and covering such risks as
in its reasonable determination is adequate for the conduct of its
business and the value of its properties.
(dd) No securities of any Glasstech Entity or any of
Glasstech's Subsidiaries are and, upon execution of the Supplemental
Indenture, no securities of the Surviving Company or any of its
Subsidiaries will be, of the same class (within the meaning of Rule
144A under the Act) as the Securities and 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.
25
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(ee) None of the Glasstech Entities or any of Glasstech's
Subsidiaries has taken, nor will any of them take, nor, after the
Effective Time, will the Surviving Company or any of its Subsidiaries
take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or
manipulation of the price of the Securities.
(ff) None of the Glasstech Entities or Glasstech's
Subsidiaries, any of their respective Affiliates or any person acting
on its or their behalf (other than the Initial Purchaser) has engaged
in any directed selling efforts (as that term is defined in Regulation
S under the Act ("REGULATION S") with respect to the Securities and
each of the Glasstech Entities and Glasstech's Subsidiaries and their
respective Affiliates and any person acting on its or their behalf
(other than the Initial Purchaser) have acted in accordance with the
offering restrictions requirement of Regulation S.
(gg) Each of the Glasstech Entities has duly authorized each
of the Transactions.
(hh) The Surviving Company will have all requisite corporate
power and authority to execute, deliver and perform its obligations
under the Revolving Credit Facility and to consummate the transactions
contemplated thereby. The Revolving Credit Facility has been duly
authorized by the Issuer and Glasstech and, when executed and delivered
by the Surviving Company, will constitute a valid and legally binding
agreement of the Surviving Company, enforceable against the Surviving
Company in accordance with its terms, except (i) that the enforcement
thereof may be subject to bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and to
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought and (ii) as any rights to
indemnity or contribution thereunder may be limited by federal and
state securities laws and public policy considerations.
(ii) The statistical and market-related data included in the
Final Memorandum are based on or derived from sources which the Issuer
believes to be reliable and accurate or represents the Issuer's good
faith estimates that are made on the basis of data derived from such
sources.
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(jj) Except as stated in the Final Memorandum, the Issuer does
not know of any claims for services, either in the nature of a finder's
fee or financial advisory fee, with respect to the offering of the
Notes and the transactions contemplated by the Final Memorandum.
Section 3.2. REPRESENTATIONS AND WARRANTIES OF HOLDING. Holding
represents and warrants to and agrees with the Initial Purchaser as follows:
(a) This Agreement has been duly authorized, executed and
delivered by Holding and (assuming the due authorization, execution and
delivery by the Initial Purchaser) is a valid and legally binding
agreement of Holding enforceable against Holding in accordance with its
terms except (i) that the enforcement hereof may be subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and to general principles of equity and
the discretion of the court before which any proceeding therefor may be
brought and (ii) as any rights to indemnity or contribution hereunder
may be limited by federal and state securities laws and public policy
considerations.
(b) Holding has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Warrant
Agreement, the Units and the Warrants; the Warrant Agreement has been
duly authorized by Holding and, when executed and delivered by Holding
(assuming the due authorization, execution and delivery by the Warrant
Agent), will constitute a valid and legally binding agreement of
Holding, enforceable against Holding in accordance with its terms
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of any court before
which any proceeding therefor may be brought.
(c) The Warrants have been duly and validly authorized by
Holding and, when executed by Holding and countersigned by the Warrant
Agent in accordance with the provisions of the Warrant Agreement, and
delivered to and paid for by the Initial Purchaser in accordance with
the terms hereof, will be entitled to the benefits of the Warrant
Agreement and will constitute valid and binding obliga-
27
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tions of Holding enforceable in accordance with their terms, except
that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of any court before
which any proceeding therefor may be brought.
(d) When issued in accordance with the terms and conditions
contained in the Warrant Agreement upon exercise of the Warrants, the
Warrant Shares so exercised will be duly authorized, validly issued,
fully paid and non-assessable and will not be subject to any preemptive
or similar rights. The Warrant Shares have been duly reserved for
issuance in accordance with the terms of the Warrants and the Warrant
Agreement.
(e) The Common Stock Registration Rights Agreement has been
duly authorized by Holding and (assuming the due authorization,
execution and delivery by the Initial Purchaser) is a valid and legally
binding agreement of Holding, enforceable against it in accordance with
its terms except (i) that the enforcement thereof may be subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and to general principles of equity and
the discretion of the court before which any proceeding therefor may be
brought and (ii) as any rights to indemnity or contribution thereunder
may be limited by federal and state securities laws and public policy
considerations.
(f) Holding is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
Section 3.3. RESALE OF SECURITIES. The Initial Purchaser represents and
warrants that it is a "qualified institutional buyer" as defined in Rule 144A
under the Act ("QIB"). The Initial Purchaser agrees with Holding and the Issuer
that it (a) has not and will not, directly or indirectly, solicit offers for, or
offer or sell, the Securities by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) or in any
manner involving a public offering within the meaning of Section 4(2) of the
Act; (b) has not and will not, directly or indirectly, engage in any "directed
selling efforts" (as defined in Regulation S under the Act); and (c) has
solicited
28
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and will solicit offers for the Securities only from, and will offer the
Securities only to (A) in the case of offers inside the United States, (i)
Persons whom the Initial Purchaser reasonably believes to be QIBs 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, and, in
each case, in transactions under Rule 144A or (ii) a limited number of other
institutional investors reasonably believed by the Initial Purchaser to be
"Accredited Investors" (as defined in Rule 501(a)(1), (2), (3) or (7) of the
Act) that, prior to their purchase of the Notes, deliver to the Initial
Purchaser a letter containing the representations and agreements set forth in
Annex A to the Final Memorandum and (B) in the case of offers outside the United
States, to Persons other than U.S. Persons ("foreign purchasers," which term
shall include dealers or other professional fiduciaries in the United States
acting on a discretionary basis for foreign beneficial owners (other than an
estate or trust)); PROVIDED, HOWEVER, that, in the case of this clause (B), in
purchasing such Notes such Persons are deemed to have represented and agreed as
provided under the caption "Notice to Investors" contained in the Final
Memorandum.
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
-------------------------------
Section 4.1. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE INITIAL
PURCHASER. The obligation of the Initial Purchaser to purchase the Securities to
be purchased by it hereunder is subject to the satisfaction of the following
conditions:
(a) The Initial Purchaser shall have received, at the Time of
Purchase, a signed opinion of Baker & Hostetler LLP, as counsel to
Holding and the Issuer, substantially in the form of EXHIBIT 1 hereto,
dated the Time of Purchase and addressed to the Initial Purchaser and
satisfactory to counsel for the Initial Purchaser.
(b) The Initial Purchaser shall have received, at the Time of
Purchase, a signed opinion of Cahill Gordon & Reindel, counsel to the
Initial Purchaser, substantially in the form of EXHIBIT 2 hereto, dated
the Time of Pur-
29
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chase and addressed to the Initial Purchaser and satisfactory to the
Initial Purchaser.
In rendering such opinions in accordance with Sections 4.1(a)
and (b), each such counsel may rely as to factual matters upon
certificates or other documents furnished by officers and directors of
the Glasstech Entities and representations of the Initial Purchaser and
by government officials, and upon such other documents as such counsel
deem appropriate as a basis for their opinion. Each such counsel may
specify the jurisdictions in which it is admitted to practice and that
it is not admitted to practice in any other jurisdiction or an expert
in the law of any other jurisdiction. To the extent such opinion
concerns the laws of any other such jurisdiction such counsel may rely
upon the opinion of counsel (satisfactory to the Initial Purchaser)
admitted to practice in such jurisdiction. Any opinion relied upon by
such counsel as aforesaid shall be delivered to the Initial Purchaser
together with the opinion of such counsel, which opinion shall state
that such counsel believes that their and the Initial Purchaser's
reliance thereon is justified.
(c) The Initial Purchaser shall have received from Ernst &
Young a comfort letter or letters dated the date hereof and the Time of
Purchase in form and substance reasonably satisfactory to counsel to
the Initial Purchaser.
(d) The representations and warranties made by Holding and the
Issuer herein shall be true and correct in all material respects
(except for changes expressly provided for in this Agreement) on and as
of the Time of Purchase with the same effect as though such
representations and warranties had been made on and as of the Time of
Purchase, each of the Glasstech Entities shall have complied in all
material respects with all agreements as set forth in or contemplated
hereunder and in the other Basic Documents required to be performed by
it at or prior to the Time of Purchase.
(e) Subsequent to the date of the Final Memorandum, (i) there
shall not have been any change, or any development involving a
prospective change, which has had or could be reasonably likely to have
a Material Adverse Effect, and (ii) the Glasstech Entities and
Glasstech's Subsidiaries shall have conducted their respective
businesses only in the ordinary course.
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(f) At the Time of Purchase and after giving effect to the
consummation of the transactions contemplated by this Agreement and the
other Basic Documents, there shall exist no Default or Event of
Default.
(g) The purchase of and payment for the Securities by the
Initial Purchaser hereunder shall not be prohibited or enjoined
(temporarily or permanently) by any applicable law or governmental
regulation (including, without limitation, Regulation G, T, U or X of
the Board of Governors of the Federal Reserve System).
(h) At the Time of Purchase, the Initial Purchaser shall have
received a certificate, dated the Time of Purchase, from the
appropriate officer of each of the Glasstech Entities stating that the
conditions specified in Sections 4.1(d), (e), (f) and (l) have been
satisfied or duly waived at the Time of Purchase.
(i) Each of the Basic Documents shall be reasonably
satisfactory in form and substance to the Initial Purchaser and shall
have been executed and delivered by all the respective parties thereto
and shall be in full force and effect.
(j) All proceedings taken in connection with the issuance of
the Securities and the transactions contemplated by this Agreement, the
other Basic Documents and all documents and papers relating thereto
shall be reasonably satisfactory to the Initial Purchaser and counsel
to the Initial Purchaser. The Initial Purchaser and counsel to the
Initial Purchaser shall have received copies of such papers and
documents as they may reasonably request in connection therewith, all
in form and substance reasonably satisfactory to them.
(k) The Issuer shall have furnished to the Initial Purchaser
the form of Revolving Credit Facility and a true and correct executed
copy of the Merger Agreement including all schedules and exhibits
thereto.
(l) The sale of the Securities hereunder shall not have been
enjoined (temporarily or permanently) at the Time of Purchase.
(m) There shall not have been any announcement by any
"nationally recognized statistical rating organization," as defined for
purposes of Rule 436(g) under the
31
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Act, that (A) it is downgrading its rating assigned to any debt
securities of Glasstech, or (B) it is reviewing its rating assigned to
any debt securities of Glasstech with a view to possible downgrading,
or with negative implications, or direction not determined.
(n) At the Time of Purchase, each Glasstech Entity shall have,
to the extent it is a party thereto, complied in all material respects
with all agreements and covenants in the Transaction Documents and
performed all conditions specified therein (other than agreements or
covenants which have been waived but only if such waivers are not
required to be set forth in the Final Memorandum) to be complied with
or performed at or prior to the Time of Purchase, and each of the
Transaction Documents shall be in full force and effect.
(o) At the Time of Purchase, the Initial Purchaser shall have
received copies of all certificates, documents and opinions, reasonably
requested by the Initial Purchaser, delivered by any of the Glasstech
Entities or any of their counsels and such other certificates,
documents and opinions reasonably obtainable by the Glasstech Entities
under the Transaction Documents in connection with any of the
Transactions, together with letters addressed to the Initial Purchaser,
stating that the Initial Purchaser may rely on such certificates and
opinions as if they had been addressed to the Initial Purchaser.
(p) Each of the Transactions (other than the Offering) shall
have been consummated, or shall be consummated simultaneously with the
Offering, on the terms and conditions set forth in the Transaction
Documents in the forms previously delivered to the Initial Purchaser
and to which it shall not have reasonably objected.
(q) At the Effective Time, a certificate of merger with
respect to the Merger shall have been filed with the Secretary of State
of the State of Delaware.
(r) At the Time of Purchase, the Surviving Company shall have
executed and delivered to the Initial Purchaser an agreement, in such
form as is satisfactory to the Initial Purchaser, assuming the
obligations of the Issuer under this Agreement, the Indenture and the
Notes.
(s) The Initial Purchaser shall have received, in the form and
substance satisfactory to the Initial Pur-
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chaser and dated the Time of Purchase, a signed report of Brooks &
Kushman, special patent counsel to Glasstech, substantially in the form
of EXHIBIT 3 hereto.
(t) Glasstech shall have received an opinion, in form and
substance satisfactory to the Initial Purchaser and counsel for the
Initial Purchaser and dated the Time of Purchase, of Houlihan, Lokey,
Howard & Zukin, Inc., with respect to the solvency of the Surviving
Company.
(u) The redemption of the Existing Notes shall have been
consummated or shall be consummated simultaneously with the Offering.
(v) The Trustee shall have received letters, addressed to the
Trustee, from Baker & Hostetler LLP to the effect that their respective
opinions delivered in accordance with Section 4.1(a) may be relied upon
by the Trustee as though the same were delivered to it.
(w) The Initial Purchaser shall have sold 70,000 Units in
accordance with the provisions of Section 3.3 hereof.
On or before the Closing, the Initial Purchaser and counsel to the
Initial Purchaser shall have received such further documents, opinions,
certificates and schedules or other instruments relating to the business,
corporate, legal and financial affairs of the Glasstech Entities and Glasstech's
Subsidiaries as they may reasonably request.
ARTICLE V
COVENANTS
---------
Section 5.1. COVENANTS OF HOLDING AND THE ISSUER. Holding and the
Issuer jointly and severally covenant and agree with the Initial Purchaser that:
(a) Neither Holding nor the Issuer nor, after the
Effective Time, the Surviving Company will amend or supplement the
Final Memorandum or any amendment or supplement thereto of which the
Initial Purchaser shall not previously have been advised and
furnished a copy for a reasonable period of time prior to the
proposed amendment or supplement and as to which the Initial
Purchaser shall not have given its consent, which consent shall not
be unrea-
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sonably withheld. Holding and the Issuer and, after the Effective
Time, the Surviving Company will promptly, upon the reasonable
request of the Initial Purchaser or counsel to the Initial Purchaser,
make any amendments or supplements to the Preliminary Memorandum or
the Final Memorandum that may be necessary or advisable in the
opinion of the Initial Purchaser or counsel to the Initial Purchaser
in connection with the resale of the Notes by the Initial Purchaser.
(b) Holding and the Issuer and, after the Effective Time,
the Surviving Company will cooperate with the Initial Purchaser in
arranging for the qualification of the Securities for offering and
sale under the securities or "Blue Sky" laws of such jurisdictions as
the Initial Purchaser may designate and will continue such
qualifications in effect for as long as may be reasonably necessary
to complete the resale of the Securities; PROVIDED, HOWEVER, that in
connection therewith, Holding and the Issuer and, after the Effective
Time, the Surviving Company shall not be required to qualify as a
foreign corporation or to execute a general consent to service of
process in any jurisdiction or subject itself to taxation in any such
jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the
distribution by the Initial Purchaser of the Securities, the Exchange
Notes or the Private Exchange Notes, any event occurs or information
becomes known as a result of which the Final Memorandum as then
amended or supplemented would include any untrue statement of a
material fact, or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or if for any other reason it is
necessary at any time to amend or supplement the Final Memorandum to
comply with applicable law, Holding and the Issuer and, after the
Effective Time, the Surviving Company will promptly notify the
Initial Purchaser thereof (who thereafter will not use such Final
Memorandum until appropriately amended or supplemented) and will
prepare, at the expense of Holding and the Issuer and, after the
Effective Time, the Surviving Company, an amendment or supplement to
the Final Memorandum that corrects such statement or omission or
effects such compliance; PROVIDED, HOWEVER, that Holding's and the
Issuer's and, after the Effective Time, the Surviving Company's
respective obligations hereunder shall not be applicable to the
extent resale by the Initial Purchaser may be accomplished pursu-
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ant to a Registration Statement or Registration Statements (as
defined in the Registration Rights Agreement).
(d) The Issuer and, after the Effective Time, the
Surviving Company will, without charge, provide to the Initial
Purchaser and to counsel to the Initial Purchaser as many copies of
the Preliminary Memorandum and the Final Memorandum or any amendment
or supplement thereto as the Initial Purchaser may reasonably
request.
(e) The Surviving Company will apply the net proceeds from
the sale of the Notes as set forth under "Use of Proceeds" in the
Final Memorandum.
(f) From the Time of Purchase through the period ending on
the date no Notes are outstanding, the Surviving Company will furnish
to the Initial Purchaser copies of all reports and other
communications (financial or otherwise) furnished by the Surviving
Company to the Trustee or the holders of the Notes and, promptly
after available, copies of any reports or financial statements
furnished to or filed by the Surviving Company with the Commission or
any national securities exchange on which any class of securities of
the Surviving Company may be listed.
(g) Prior to the Time of Purchase, the Issuer will furnish
to the Initial Purchaser, as soon as they have been prepared, a copy
of any unaudited interim financial statements of Glasstech and its
Subsidiaries for any period subsequent to the period covered by the
most recent financial statements appearing in the Final Memorandum.
(h) None of Holding, the Issuer and, after the Effective
Time, the Surviving Company or any of their respective Affiliates
will sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any "security" (as defined in the Act) which
could be integrated with the sale of the Securities in a manner which
would require the registration under the Act of the Securities.
(i) Holding and the Issuer will not, and will not permit
any of the respective Subsidiaries to, and, after the Effective Date,
the Surviving Company will not, and will not permit any of its
Subsidiaries to, 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 Act)
or
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in any manner involving a public offering within the meaning of
Section 4(2) of the Act.
(j) For so long as any of the Securities remain
outstanding and are "restricted securities" within the meaning of
Rule 144(a)(3) under the Act and not salable in full under Rule 144
under the Act (or any successor provision), Holding, in the case of
the Units and Warrants, and the Surviving Company, in the case of the
Notes, will make available, upon request, to any seller of such
Securities the information specified in Rule 144A(d)(4) under the
Act, unless Holding or the Surviving Company, as the case may be, is
then subject to Section 13 or 15(d) of the Exchange Act.
(k) Each of Holding and the Issuer will use its best
efforts to (i) permit the Securities to be included for quotation on
PORTAL and (ii) permit the Securities to be eligible for clearance
and settlement through The Depository Trust Company.
(l) Each of Holding and the Issuer and, after the
Effective Time, the Surviving Company will use its best efforts to do
and perform all things required to be done and performed by it under
this Agreement and the other Basic Documents prior to or after the
Closing and to satisfy all conditions precedent on its part to the
obligations of the Initial Purchaser to purchase and accept delivery
of the Securities.
ARTICLE VI
FEES
----
Section 6.1. COSTS, EXPENSES AND TAXES. Holding and the Issuer
jointly and severally agree to pay and, after the Effective Time, the Surviving
Company will pay, upon consummation of the Offering, all costs and expenses
incident to the performance of their obligations under this Agreement,
including, but not limited to, all costs and expenses incident to (i) its
negotiation, preparation, printing, typing, reproduction, execution and delivery
of this Agreement and each of the other Basic Documents, any amendment or
supplement to or modification of any of the foregoing and any and all other
documents furnished pursuant hereto or thereto or in connection herewith or
therewith, (ii) any costs of printing the Preliminary Memorandum and the Final
Memorandum and any amend-
36
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ment or supplement thereto, any other marketing related materials and any "Blue
Sky" memoranda (which shall include the reasonable disbursements of counsel to
the Initial Purchaser in respect thereof), (iii) all arrangements relating to
the delivery to the Initial Purchaser of copies of the foregoing documents, (iv)
the fees and disbursements of the counsel, the accountants and any other experts
or advisors retained by the Glasstech Entities and of Cahill Gordon & Reindel,
counsel for the Initial Purchaser, (v) preparation (including printing),
issuance and delivery to the Initial Purchaser of the Notes, (vi) the
qualification of the Notes under state securities and "Blue Sky" laws, including
filing fees and reasonable fees and disbursements of counsel to the Initial
Purchaser relating thereto, (vii) its expenses and the cost of any private or
chartered jets in connection with any meetings with prospective investors in the
Notes, (viii) fees and expenses of the Trustee including fees and expenses of
counsel to the Trustee, (ix) all expenses and listing fees incurred in
connection with the application for quotation of the Notes on PORTAL, (x) any
fees charged by investment rating agencies for the rating of the Notes and (xi)
except as limited by Article VII, all costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses), if any, in connection with
the enforcement of this Agreement, the Securities or any other agreement
furnished pursuant hereto or thereto or in connection herewith or therewith. In
addition, Holding and the Issuer and, after the Effective Time, the Surviving
Company shall pay any and all stamp, transfer and other similar taxes (but
excluding any income, franchise, personal property, ad valorem or gross receipts
taxes) payable or determined to be payable in connection with the execution and
delivery of this Agreement, any of the other Basic Documents or the issuance of
the Securities, and shall save and hold the Initial Purchaser harmless from and
against any and all liabilities with respect to or resulting from any delay in
paying, or omission to pay, such taxes (other than if such delay is caused by
the Initial Purchaser).
ARTICLE VII
INDEMNITY
---------
Section 7.1. INDEMNITY.
(a) INDEMNIFICATION BY HOLDING AND THE ISSUER. Each of Holding and
the Issuer jointly and severally agrees and covenants to and, after the
Effective Time, the Surviving
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Company will, hold harmless and indemnify the Initial Purchaser and any
Affiliates thereof (including any director, officer, employee, agent or
controlling Person of any of the foregoing) from and against any losses, claims,
damages, liabilities and expenses (including expenses of investigation) to which
the Initial Purchaser and its Affiliates may become subject arising out of or
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Memorandum and any amendments or supplements thereto, the Basic
Documents, any documents filed with the Commission or any State Commission
(collectively, the "OFFERING MATERIALS") or arising out of or based upon the
omission or alleged omission to state in any of the Offering Materials a
material fact required to be stated therein or necessary to make the statements
therein not misleading; PROVIDED, HOWEVER, that Holding and the Issuer and,
after the Effective Time, the Surviving Company shall not be liable under this
paragraph (a) to the extent that such losses, claims, damages or liabilities
arose out of or are based upon an untrue statement or omission made in any of
the documents referred to in this paragraph (a) in reliance upon and in
conformity with the information relating to the Initial Purchaser furnished in
writing by the Initial Purchaser for inclusion therein (or for a breach by the
Initial Purchaser of any representation or warranty contained in this
Agreement), PROVIDED, FURTHER, that Holding and the Issuer and, after the
Effective Time, the Surviving Company shall not be liable under this paragraph
(a) to the extent that such losses, claims, damages or liabilities arose out of
or are based upon an untrue statement or omission made in any Preliminary
Memorandum that is corrected in the Final Memorandum (or any amendment or
supplement thereto) if the person asserting such loss, claim, damage or
liability purchased Securities from the Initial Purchaser in reliance on such
Preliminary Memorandum and was not given the Final Memorandum (or any amendment
or supplement thereto) on or prior to the confirmation of the sale of such
Notes. Holding and the Issuer and, after the Effective Time, the Surviving
Company further agree to reimburse the Initial Purchaser for any reasonable
legal and other expenses as they are incurred by it in connection with
investigating, preparing to defend or defending any lawsuits, claims or other
proceedings or investigations arising in any manner out of or in connection with
such Person being the Initial Purchaser; PROVIDED that if Holding and the Issuer
and, after the Effective Time, the Surviving Company reimburse the Initial
Purchaser hereunder for any expenses incurred in connection with a lawsuit,
claim or other proceeding for which indemnification is sought, the Initial
Purchaser hereby agrees to refund such reimbursement of expenses to the extent
that
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the losses, claims, damages or liabilities arise out of or are based upon an
untrue statement or omission made in any of the documents referred to in this
paragraph (a) in reliance upon and in conformity with the information relating
to the Initial Purchaser furnished in writing by the Initial Purchaser for
inclusion therein (or for a breach by the Initial Purchaser of any
representation or warranty contained in this Agreement). Holding and the Issuer
and, after the Effective Time, the Surviving Company further agree that the
indemnification, contribution and reimbursement commitments set forth in this
Article VII shall apply whether or not the Initial Purchaser is a formal party
to any such lawsuits, claims or other proceedings. The indemnity, contribution
and expense reimbursement obligations of Holding and the Issuer under this
Article VII shall be in addition to any liability Holding and the Issuer may
otherwise have.
(b) INDEMNIFICATION BY THE INITIAL PURCHASER. The Initial Purchaser
agrees and covenants to hold harmless and indemnify Holding and the Issuer and,
after the Effective Time, the Surviving Company and any Affiliates thereof
(including any director, officer, employee, agent or controlling Person of any
of the foregoing) from and against any losses, claims, damages, liabilities and
expenses insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement of any material fact contained in
the Offering Materials, or any omission to state therein a material fact
required to be stated therein 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 omission was made in reliance upon and in conformity with the
information relating to the Initial Purchaser furnished in writing by the
Initial Purchaser for inclusion therein. The indemnity, contribution and expense
reimbursement obligations of the Initial Purchaser under this Article VII shall
be in addition to any liability the Initial Purchaser may otherwise have.
(c) PROCEDURE. If any Person shall be entitled to indemnity hereunder
(each an "INDEMNIFIED PARTY"), such Indemnified Party shall give prompt written
notice to the party or parties from which such indemnity is sought (each an
"Indemnifying Party") of the commencement of any action, suit, investigation or
proceeding, governmental or otherwise (a "PROCEEDING"), with respect to which
such Indemnified Party seeks indemnification or contribution pursuant hereto;
PROVIDED, HOWEVER, that the failure so to notify the Indemnifying Parties shall
not relieve the Indemnifying Parties from any
39
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obligation or liability except to the extent that the Indemnifying Parties have
been prejudiced materially by such failure. The Indemnifying Parties shall have
the right, exercisable by giving written notice to an Indemnified Party promptly
after the receipt of written notice from such Indemnified Party of such
Proceeding, to assume, at the Indemnifying Parties' expense, the defense of any
such Proceeding, with counsel reasonably satisfactory to such Indemnified Party;
PROVIDED, HOWEVER, that an Indemnified Party or parties (if more than one such
Indemnified Party is named in any Proceeding) shall have the right to employ
separate counsel in any such Proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party or parties unless: (1) the Indemnifying Parties agree to
pay such fees and expenses; or (2) the Indemnifying Parties fail promptly to
assume the defense of such Proceeding or fail to employ counsel reasonably
satisfactory to such Indemnified Party or parties; or (3) the named parties to
any such Proceeding (including any impleaded parties) include both such
Indemnified Party or parties and the Indemnifying Party or an Affiliate of the
Indemnifying Party and such Indemnified Parties, and the Indemnified Parties
shall have been advised in writing by counsel that there may be one or more
legal defenses available to such Indemnified Party or parties that are different
from or additional to those available to the Indemnifying Parties, in which
case, if such Indemnified Party or parties notifies the Indemnifying Parties in
writing that it elects to employ separate counsel at the expense of the
Indemnifying Parties, the Indemnifying Parties shall not have the right to
assume the defense thereof with respect to the Indemnified Parties and such
counsel shall be at the expense of the Indemnifying Parties, it being
understood, however, that the Indemnifying Parties shall not, in connection with
any one such Proceeding or separate but substantially similar or related
Proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for such Indemnified Party or parties, or for fees and expenses that are
not reasonable. No Indemnified Party or Parties will settle any Proceeding
without the consent of the Indemnifying Party or parties (but such consent shall
not be unreasonably withheld). No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement of any pending
or threatened Proceeding in respect of which any Indemnified Party is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional
40
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release of such Indemnified Party from all liability or claims that are the
subject of such Proceeding.
Section 7.2. CONTRIBUTION. If for any reason the indemnification
provided for in Section 7.1 of this Agreement is unavailable to an Indemnified
Party, or insufficient to hold it harmless, in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each applicable
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect not only the relative benefits received by the
Indemnifying Party on the one hand and the Indemnified Party on the other, but
also the relative fault of the Indemnifying and Indemnified Parties in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Indemnifying and
Indemnified Parties shall be deemed to be in the same proportion as the total
proceeds from the offering of the Securities (before deducting expenses, but
after giving effect to the Initial Purchaser's discount) received by the Issuer
bear to the total discounts and commissions received by the Initial Purchaser.
The relative fault of the Indemnifying and Indemnified Parties 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 Indemnifying or
Indemnified Parties and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages
and liabilities referred to above shall be deemed to include any legal or other
fees or expenses incurred by such party in connection with investigating or
defending any such claim.
Holding and the Issuer and the Initial Purchaser agree that it would
not be just and equitable if contribution pursuant to the immediately preceding
paragraph were determined pro rata or per capita or by any other method of
allocation which does not take into account the equitable considerations
referred to in such paragraph. Notwithstanding any other provision of this
Section 7.2, the Initial Purchaser shall not be obligated to make contributions
hereunder that in the aggregate exceed the total discounts, commissions and
other compensation received by the Initial Purchaser under this Agreement, less
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the aggregate amount of any damages that the Initial Purchaser has otherwise
been required to pay by reason of the untrue or alleged untrue statements or a
breach of a representation or warranty or the omissions or alleged omissions to
state a material fact. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
Section 7.3. REGISTRATION RIGHTS AGREEMENTS. Notwithstanding anything
to the contrary in this Article VII, the indemnification and contribution
provisions of the Registration Rights Agreement and the Common Stock
Registration Rights Agreements shall govern any claim with respect thereto.
ARTICLE VIII
MISCELLANEOUS
-------------
Section 8.1. SURVIVAL OF PROVISIONS. The representations, warranties
and covenants of Holding and the Issuer, their respective officers and the
Initial Purchaser made herein, the indemnity and contribution agreements
contained herein and each of the provisions of Articles VI, VII and VIII shall
remain operative and in full force and effect regardless of (a) the
investigation made by or on behalf of Holding, the Issuer and, after the
Effective Time, the Surviving Company, the Initial Purchaser or any Indemnified
Party, (b) acceptance of any of the Securities and payment therefor, (c) any
termination of this Agreement or (d) disposition of the Securities by the
Initial Purchaser whether by redemption, exchange, sale or otherwise.
Section 8.2. TERMINATION. (a) This Agreement may be terminated in the
sole discretion of the Initial Purchaser by notice to Holding and the Issuer
given prior to the Time of Purchase in the event that Holding or the Issuer
shall have failed, refused or been unable to perform in all material respects
all obligations and satisfy all conditions on its part to be performed or
satisfied hereunder at or prior thereto or, in the event at or prior to the
Closing:
(i) any Glasstech Entity or any of Glasstech's
Subsidiaries shall have sustained any loss or interference with
respect to its businesses or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or
from any strike, labor dis-
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pute, slow down or work stoppage or any legal or governmental
proceeding, which loss or interference, in the sole judgment of the
Initial Purchaser, has had or has a Material Adverse Effect, or there
shall have been, in the sole judgment of the Initial Purchaser, any
event or development that, individually or in the aggregate, has or
could be reasonably likely to have a Material Adverse Effect
(including without limitation a change in control of any of the
Glasstech Entities or any of Glasstech's Subsidiaries), except in
each case as described in the Final Memorandum (exclusive of any
amendment or supplement thereto);
(ii) trading in securities generally on the New York Stock
Exchange, American Stock Exchange or the Nasdaq National Market shall
have been suspended or minimum or maximum prices shall have been
established on any such exchange or market;
(iii) a banking moratorium shall have been declared by New
York or United States authorities;
(iv) there shall have been (A) an outbreak or escalation
of hostilities between the United States and any foreign power, or
(B) an outbreak or escalation of any other insurrection or armed
conflict involving the United States or any other national or
international calamity or emergency, or (C) any material change in
the financial markets of the United States which, in the case of (A),
(B) or (C) above and in the sole judgment of the Initial Purchaser,
makes it impracticable or inadvisable to proceed with the offering or
the delivery of the Securities as contemplated by the Final
Memorandum; or
(v) any securities of any of the Glasstech Entities shall
have been downgraded or placed on any "watch list" for possible
downgrading by any nationally recognized statistical rating
organization.
(b) Termination of this Agreement pursuant to this Section
8.2 shall be without liability of any party to any other party except
as provided in Section 8.1 hereof.
Section 8.3. NO WAIVER; MODIFICATIONS IN WRITING. No failure or delay
on the part of the Initial Purchaser, Holding or the Issuer and, after the
Effective Time, the Surviving Company in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy pre-
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clude any other or further exercise thereof or the exercise of any other right,
power or remedy. The remedies provided for herein are cumulative and are not
exclusive of any remedies that may be available to the Initial Purchaser,
Holding or the Issuer and, after the Effective Time, the Surviving Company at
law or in equity or otherwise. No waiver of or consent to any departure by the
Initial Purchaser, Holding or the Issuer and, after the Effective Time, the
Surviving Company from any provision of this Agreement shall be effective unless
signed in writing by the party entitled to the benefit thereof, PROVIDED that
notice of any such waiver shall be given to each party hereto as set forth
below. Except as otherwise provided herein, no amendment, modification or
termination of any provision of this Agreement shall be effective unless signed
in writing by or on behalf of each of the Initial Purchaser, Holding, and the
Issuer and, after the Effective Time, the Surviving Company. Any amendment,
supplement or modification of or to any provision of this Agreement, any waiver
of any provision of this Agreement, and any consent to any departure by the
Initial Purchaser, Holding or the Issuer and, after the Effective Time, the
Surviving Company from the terms of any provision of this Agreement, shall be
effective only in the specific instance and for the specific purpose for which
made or given. Except where notice is specifically required by this Agreement,
no notice to or demand on Holding or the Issuer and, after the Effective Time,
the Surviving Company in any case shall entitle Holding or the Issuer and, after
the Effective Time, the Surviving Company to any other or further notice or
demand in similar or other circumstances.
Section 8.4. INFORMATION SUPPLIED BY THE INITIAL PURCHASER. The
statements set forth in the fourth and fifth sentences of the third paragraph
and in the seventh and eighth paragraph under the heading "Plan of Distribution"
in the Final Memorandum (to the extent such statements relate to the Initial
Purchaser) constitute the only information furnished by the Initial Purchaser to
Holding and the Issuer for the purposes of Sections 3.1(a) and 7.1(a) and (b)
hereof.
Section 8.5. COMMUNICATIONS. All notices, demands and other
communications provided for hereunder shall be in writing, and, (a) if to the
Initial Purchaser, shall be given by registered or certified mail, return
receipt requested, telex, telegram, telecopy, courier service or personal
delivery, addressed to CIBC Wood Gundy Securities Corp., 425 Lexington Avenue,
3rd Floor, New York, New York 10017, Attention: Mark Dalton, with a copy to
Cahill Gordon & Reindel, 80 Pine Street, New York, New York 10005, Attention:
Roger Meltzer,
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Esq., and (b) if to Holding and/or the Issuer and, after the Effective Time, the
Surviving Company, shall be given by similar means to Glasstech, Inc., Ampoint
Industrial Park, 995 Fourth Street, Perrysburg, Ohio 43551, Attention:
President, with a copy to Baker & Hostetler LLP, 3200 National City Center, 1900
East Ninth Street, Cleveland, Ohio 44114-3485, Attention: William Appleton, Esq.
In each case notices, demands and other communications shall be deemed given
when received.
Section 8.6. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 8.7. SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the Initial Purchaser, Holding, the Issuer and, after the
Effective Time, the Surviving Company and their respective successors and legal
representatives, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other Person any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained; this Agreement and all conditions and provisions hereof being
intended of this Agreement, or any provisions herein contained; this to be and
being for the sole and exclusive benefit of such Persons and for the benefit of
no other Person except that (i) the indemnities of Holding, the Issuer and,
after the Effective Time, the Surviving Company contained in Section 7.1(a) of
this Agreement shall also be for the benefit of the directors, officers,
employees and agents of the Initial Purchaser and any Person or Persons who
control the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act and (ii) the indemnities of the Initial Purchaser
contained in Section 7.1(b) of this Agreement shall also be for the benefit of
the respective directors of Holding and the Issuer and, after the Effective
Time, the Surviving Company, their respective officers, employees and agents and
any Person or Persons who control Holding or the Issuer and, after the Effective
Time, the Surviving Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act. No purchaser of Securities from the Initial
Purchaser will be deemed a successor because of such purchase.
45
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Section 8.8. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
Section 8.9. SEVERABILITY OF PROVISIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 8.10. HEADINGS. The Article and Section headings and Table of
Contents used or contained in this Agreement are for convenience of reference
only and shall not affect the construction of this Agreement.
46
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed as of the date first written above.
GLASSTECH HOLDING CO.
By: /s/ Mark D. Christman
--------------------------------
Name: Mark D. Christman
Title: President
GLASSTECH SUB CO.
By: /s/ Mark D. Christman
--------------------------------
Name: Mark D. Christman
Title: President
CIBC WOOD GUNDY SECURITIES CORP.
By: /s/ Mark Dalton
-----------------------------
Name: Mark Dalton
Title: Managing Director
47
Exhibit 1
[FORM OF OPINION OF BAKER & HOSTETLER] 1
1. Each of the Glasstech Entities and Glasstech's Subsidiaries is and,
after giving effect to the Merger, the Surviving Company and its
Subsidiaries will be duly incorporated, validly existing and in good
standing under the laws of its respective jurisdiction of
incorporation and has all requisite corporate power and authority to
own its properties and to conduct its business as described in the
Final Memorandum. Each of the Glasstech Entities and Glasstech's
Subsidiaries is and, after giving effect to the Merger, the Surviving
Company and its Subsidiaries, will be duly qualified to do business
as a foreign corporation in good standing in all other jurisdictions
where the ownership or leasing of its properties or the conduct of
its business requires such qualification, except where the failure to
be so qualified would not, individually or in the aggregate, have a
Material Adverse Effect.
2. Glasstech has and, after giving effect to the Merger, the Surviving
Company will have the authorized, issued and outstanding
capitalization set forth in the Final Memorandum; all of the
outstanding shares of capital stock of Glasstech and Glasstech's
Subsidiaries have and, after giving effect to the Merger, the
Surviving Company will have been duly authorized and validly issued,
are fully paid and nonassessable and were not issued in violation of
any preemptive or similar rights; except as set forth in the Final
Memorandum, all of the outstanding shares of capital stock of
Glasstech's Subsidiaries are owned, directly or indirectly, by
Glasstech and, after giving effect to the Merger, all of the
outstanding shares of capital stock of the Surviving Company's
Subsidiaries will be owned, directly or indirectly, by the Surviving
Company, in each case free and clear of all perfected security
interests and, to the knowledge of such counsel, free and clear of
all other liens, encumbrances, equities and
_________________________
1 Optionally, sections of this opinion can be provided by Kenneth
Wetmore, General Counsel of the Company.
48
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claims or restrictions on transferability (other than those imposed
by the Act and the securities or "Blue Sky" laws of certain
jurisdictions) or voting.
3. Except as set forth in the Final Memorandum, (A) no options, warrants
or other rights to purchase from Glasstech or any of its Subsidiaries
shares of capital stock or ownership interests in Glasstech or any of
its Subsidiaries are outstanding, (B) no agreements or other
obligations to issue, or other rights to convert, any obligation
into, or exchange any securities for, shares of capital stock or
ownership interests in Glasstech or any of its Subsidiaries are
outstanding and (C) no holder of securities of Glasstech or any of
its Subsidiaries is entitled to have such securities registered under
a registration statement filed by the Surviving Company pursuant to
the Registration Rights Agreement.
4. The Issuer has all requisite corporate power and authority to
execute, deliver and perform each of its obligations under the
Indenture, the Notes, the Exchange Notes and the Private Exchange
Notes; the Indenture meets the requirements for qualification under
the TIA; the Indenture has been duly and validly authorized by the
Issuer and, when duly executed and delivered by the Issuer (assuming
the due authorization, execution and delivery thereof by the
Trustee), will constitute the valid and legally binding agreement of
the Issuer in accordance with its terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor
may be brought.
5. Upon consummation of the Merger, the Surviving Company will have all
requisite corporate power and authority to execute, deliver and
perform each of its obligations under the Indenture, the Supplemental
Indenture, the Notes, the Exchange Notes and the Private Exchange
Notes; the Supplemental Indenture has been duly and validly
authorized by the Issuer and Glasstech and, when duly executed and
delivered by the Surviving Company (assuming the due authorization,
execution and delivery thereof by the Trustee), will constitute the
valid and legally binding agreement of the Surviving Company,
enforceable against the Surviving Company, in accordance with its
terms, except that the enforcement thereof may be subject to (i)
bank-
49
-3-
ruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought.
6. The Notes are in the form contemplated by the Indenture. The Notes
have each been duly and validly authorized by the Issuer and, when
duly executed and delivered by the Issuer and paid for by the Initial
Purchaser in accordance with the terms of the Purchase Agreement
(assuming the due authorization, execution and delivery of the
Indenture by the Trustee and due authentication and delivery of the
Notes by the Trustee in accordance with the Indenture), will
constitute the valid and legally binding obligations of the Issuer
and, upon consummation of the Merger, the Surviving Company, entitled
to the benefits of the Indenture, as amended by the Supplemental
Indenture, and enforceable against the Issuer and, upon consummation
of the Merger, the Surviving Company in accordance with their terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought.
7. The Exchange Notes and the Private Exchange Notes have been duly and
validly authorized by the Issuer and Glasstech and, when the Exchange
Notes and the Private Exchange Notes have been duly executed and
delivered by the Surviving Company in accordance with the terms of
the Registration Rights Agreement and the Indenture, as amended by
the Supplemental Indenture (assuming the due authorization, execution
and delivery of the Indenture by the Trustee and due authentication
and delivery of the Exchange Notes and the Private Exchange Notes by
the Trustee in accordance with the Indenture, as amended by the
Supplemental Indenture), will constitute the valid and legally
binding obligations of the Surviving Company, entitled to the
benefits of the Indenture, as amended by the Supplemental Indenture,
and enforceable against the Surviving Company in accordance with
their terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the
50
-4-
discretion of the court before which any proceeding therefor may be
brought.
8. The Surviving Company will have all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Registration Rights Agreement; the Registration Rights Agreement has
been duly and validly authorized by the Issuer and Glasstech and,
when duly executed and delivered by the Surviving Company (assuming
due authorization, execution and delivery thereof by the Initial
Purchaser), will constitute the valid and legally binding agreement
of the Surviving Company, enforceable against the Surviving Company
in accordance with its terms, except that (A) the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor
may be brought (B) the enforcement of provisions imposing liquidating
damages, penalties or an increase in interest rate upon the
occurrence of a default may be limited in certain circumstances and
(C) any rights to indemnity or contribution thereunder may be limited
by federal and state securities laws and public policy
considerations.
9. The Issuer has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Purchase
Agreement and to consummate the transactions contemplated thereby;
after giving effect to the Merger, the Surviving Company will have
all requisite corporate power and authority to perform its
obligations under the Purchase Agreement and to consummate the
transactions contemplated thereby; the Purchase Agreement and the
consummation by the Glasstech Entities and the Surviving Company of
the Transactions have been duly and validly authorized by each of the
Glasstech Entities, and, when duly executed and delivered by the
Issuer (assuming due authorization, execution and delivery thereof by
the Initial Purchaser), will constitute the valid and legally binding
agreement of the Issuer, and upon consummation of the Merger, the
Surviving Company, enforceable against the Issuer, and upon
consummation of the Merger, the Surviving Company in accordance with
its terms, except that (A) the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discre-
51
-5-
tion of the court before which any proceeding therefor may be brought
and (B) any rights to indemnity or contribution thereunder may be
limited by federal and state securities laws and public policy
considerations.
10. The Indenture, the Supplemental Indenture, the Notes and the
Registration Rights Agreement conform in all material respects to the
descriptions thereof contained in the Final Memorandum.
11. No legal or governmental proceedings are pending or, to the knowledge
of such counsel, threatened to which any of the Glasstech Entities or
Glasstech's Subsidiaries is a party or to which the property or
assets of any of the Glasstech Entities or any of Glasstech's
Subsidiaries is or, after giving effect to the Merger, the Surviving
Company or any of its Subsidiaries will be subject which, if
determined adversely to such party, would result, individually or in
the aggregate, in a Material Adverse Effect, or which seeks to
restrain, enjoin, prevent the consummation of or otherwise challenge
the issuance or sale of the Notes to be sold hereunder or the
consummation of the other Transactions.
12. None of Glasstech or its Subsidiaries is or, after giving effect to
the Merger, none of the Surviving Company or its Subsidiaries will be
(i) in violation of its certificate of incorporation or bylaws (or
similar organizational document), (ii) to the knowledge of such
counsel, in breach or violation of any statute, judgment, decree,
order, rule or regulation applicable to any of them or any of their
respective properties or assets, except for any such breach or
violation which would not, individually or in the aggregate, have a
Material Adverse Effect, or (iii) in breach or default under (nor has
any event occurred which, with notice or passage of time or both,
would constitute a default under) or in violation of any of the terms
or provisions of any contract known to such counsel, except for any
such breach, default, violation or event which would not,
individually or in the aggregate, have a Material Adverse Effect.
13. The execution, delivery and performance of the Purchase Agreement,
the Indenture, the Supplemental Indenture, the Registration Rights
Agreement and the consummation of the transactions contemplated
hereby and thereby (including, without limitation, the issuance and
sale of the Notes to the Initial Purchaser) will not conflict with or
consti-
52
-6-
tute or result in a breach or a default under (or an event which with
notice or passage of time or both would constitute a default under)
or violation of any of (i) the terms or provisions of all other
agreements and instruments to be executed and delivered by the
Glasstech Entities or, upon consummation of the Merger, of the
Surviving Company known to such counsel, except for any such
conflict, breach, violation, default or event which would not,
individually or in the aggregate, have a Material Adverse Effect,
(ii) the certificate of incorporation or bylaws (or similar
organizational document) of the Glasstech Entities or any of
Glasstech's Subsidiaries or, upon consummation of the Merger, of the
Surviving Company or its Subsidiaries, or (iii) (assuming compliance
with all applicable state securities or "Blue Sky" laws) any statute,
judgment, decree, order, rule or regulation known to such counsel to
be applicable to the Glasstech Entities or any of Glasstech
Subsidiaries or, upon consummation of the Merger, of the Surviving
Company or its Subsidiaries or any of their respective properties or
assets, except for any such conflict, breach or violation which would
not, individually or in the aggregate, have a Material Adverse
Effect.
14. No consent, approval, authorization or order of any governmental
authority is required for (i) the issuance and sale by the Issuer of
the Notes to the Initial Purchasers or the consummation by the
Company of the other transactions contemplated hereby or (ii) the
consummation by the Issuer of the transactions contemplated by the
RevolvingCredit Facility, except such as may be required under Blue
Sky laws, as to which such counsel need express no opinion, and those
which have previously been obtained.
15. Glasstech and its Subsidiaries and, upon consummation of the Merger,
the Surviving Company and its Subsidiaries will own or possess the
Intellectual Property Rights necessary to conduct the businesses now
or proposed to be operated by them as described in the Final
Memorandum, and none of the Glasstech Entities or Glasstech's
Subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any Intellectual
Property Rights which, if such assertion of infringement or conflict
were sustained, would have a Material Adverse Effect.
16. To the knowledge of such counsel, there are no legal or governmental
proceedings involving or affecting the
53
-7-
Glasstech Entities or Glasstech's Subsidiaries or any of their
respective properties or assets which would be required to be
described in a prospectus pursuant to the Act that are not described
in the Final Memorandum, nor are there any material contracts or
other documents which would be required to be described in a
prospectus pursuant to the Act that are not described in the Final
Memorandum.
17. The Issuer is not and, immediately after the sale of the Notes to be
sold hereunder and the application of the proceeds from such sale (as
described in the Final Memorandum under the caption "Use of
Proceeds"), the Surviving Company will not be an "investment company"
as such term is defined in the Investment Company Act of 1940, as
amended.
18. No registration under the Act of the Notes is required in connection
with the sale of the Notes to the Initial Purchaser as contemplated
by the Purchase Agreement and the Final Memorandum or in connection
with the initial resale of the Notes by the Initial Purchaser in
accordance with Section 3.2 of the Purchase Agreement, and prior to
the commencement of the Exchange Offer (as defined in the
Registration Rights Agreement) or the effectiveness of the Shelf
Registration Statement (as defined in the Registration Rights
Agreement), the Indenture is not required to be qualified under the
TIA, in each case assuming (A) that the purchasers who buy such Notes
in the initial resale thereof are qualified institutional buyers as
defined in Rule 144A promulgated under the Act ("QIBs") or accredited
investors as defined in Rule 501(a) (1), (2), (3) or (7) promulgated
under the Act ("Accredited Investors") or (B) that the offer or sale
of the Notes is made in an offshore transaction as defined in
Regulation S.
19. Neither the consummation of the transactions contemplated by the
Purchase Agreement nor the sale, issuance, execution or delivery of
the Notes will violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System.
20. At the time the foregoing opinion is delivered, such counsel shall
additionally state that it has participated in conferences with
officers and other representatives of the Glasstech Entities,
representatives of the independent public accountants for the
Glasstech Entities, representatives of the Initial Purchaser and
counsel for the Initial Purchaser, at which conferences the contents
of the Final Memorandum and related matters were discussed, and,
al-
54
-8-
though it has not independently verified and is not passing upon and
assumes no responsibility for the accuracy, completeness or fairness
of the statements contained in the Final Memorandum (except to the
extent specified in paragraph 6), no facts have come to its attention
which lead it to believe that the Final Memorandum, on the date
thereof or at the Time of Purchase, contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements contained therein,
in light of the circumstances under which they were made, not
misleading (it being understood that such firm need express no
opinion with respect to the financial statements and related notes
thereto and the other financial, statistical and accounting data
included in the Final Memorandum). The opinion of such counsel
described on this Exhibit 1 shall be rendered to the Initial
Purchaser at the request of the Glasstech Entities and shall so state
therein.
References to the Final Memorandum in this Exhibit 1 shall include
any amendment or supplement thereto prepared in accordance with the provisions
of the Purchase Agreement at the Time of Purchase.
55
EXHIBIT 2
[FORM OF OPINION OF CAHILL GORDON & REINDEL]
1. The Purchase Agreement has been duly authorized, executed and
delivered by the Issuer and constitutes a legal, valid and binding agreement of
the Issuer and, upon consummation of the Merger, will constitute a legal, valid
and binding agreement of the Surviving Company, enforceable against the Issuer
and, upon consummation of the Merger, against the Surviving Company in
accordance with its terms, except that (A) the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect affecting creditors'
rights generally and by general principles of equity and discretion of the court
before which any proceedings therefor may be brought and (B) rights to
indemnification and contribution may be limited by federal or state securities
laws or public policy considerations with respect thereto.
2. The Registration Rights Agreement has been duly authorized,
executed and delivered by the Issuer and constitutes a legal, valid and binding
agreement of the Issuer and, upon consummation of the Merger, will constitute a
legal, valid and binding agreement of the Surviving Company, enforceable against
the Issuer and, upon consummation of the Merger, against the Surviving Company
in accordance with its terms, except that (A) the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect affecting creditors'
rights generally and by general principles of equity and discretion of the court
before which any proceedings therefor may be brought, (B) the enforceability of
provisions imposing liquidated damages, penalties or an increase in interest
rate upon the occurrence of a default may be limited in certain circumstances
and (C) rights to indemnification and contribution may be limited by federal or
state securities laws or public policy considerations with respect thereto.
3. The Indenture has been duly authorized, executed and delivered
by the Issuer and, assuming the due authorization, execution and delivery
thereof by the Trustee is a legal, valid and binding agreement of the Issuer,
enforceable against the Issuer in accordance with its terms, except that the
enforceability thereof may be subject to bankruptcy, insolvency,
56
-2-
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect affecting creditors' rights generally and by general
principles of equity and the discretion of the court before which any
proceedings therefor may be brought.
4. The Supplemental Indenture has been duly authorized by the
Issuer and Glasstech and when executed and delivered by the Surviving Company
and, assuming the due authorization, execution and delivery thereof by the
Trustee is a legal, valid and binding agreement of the Surviving Company,
enforceable against the Surviving Company in accordance with its terms, except
that the enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect affecting creditors' rights generally and by general
principles of equity and the discretion of the court before which any
proceedings therefor may be brought.
5. The Notes have been duly authorized, executed and delivered by
the Issuer and, assuming due authentication of the Notes by the Trustee in
accordance with the terms of the Indenture, are legal, valid and binding
obligations of the Issuer and, upon consummation of the Merger, the Surviving
Company, entitled to the benefits of the Indenture, as amended by the
Supplemental Indenture, and enforceable against the Issuer and, upon
consummation of the Merger, the Surviving Company in accordance with their
terms, except that the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect affecting creditors' rights generally and by
general principles of equity and the discretion of the court before which any
proceedings therefor may be brought.
6. Assuming, without independent investigation, (a) that the Notes
are sold to the Initial Purchaser, and initially resold by the Initial
Purchaser, in accordance with the terms of, and in the manner contemplated by,
the Purchase Agreement and the Offering Memorandum, (b) the accuracy of the
representations and warranties of the Glasstech Entities set forth in the
Purchase Agreement and in the certificates delivered by officers of the
Glasstech Entities pursuant to the Purchase Agreement, (c) the accuracy of the
Initial Purchaser's representations and warranties set forth in the Purchase
Agreement, (d) the due performance by the Issuer of the covenants and agreements
set forth in the Purchaser Agreement and the due performance by the Initial
Purchaser of the covenants and agreements set forth in the Purchase Agreement,
(e) the Initial
57
-3-
Purchaser's compliance with the offering and transfer procedures and
restrictions described in the Offering Memorandum, (f) the accuracy of the
representations and warranties deemed to be made pursuant to the Offering
Memorandum by purchasers to whom the Initial Purchaser initially resells the
Notes and (g) that each purchaser to whom the Initial Purchaser initially
resells Notes receives a copy of the Offering Memorandum prior to such sale, it
is not necessary in connection with the issuance and sale to you of the Notes by
the Issuer under the circumstances contemplated by the Purchase Agreement or in
connection with the initial resale of the Notes by the Initial Purchaser in
accordance with the offering and transfer procedures and restrictions described
in the Offering Memorandum and in the Purchase Agreement, to register any of the
Notes under the Securities Act of 1933, as amended, or to qualify the Indenture
under the Trust Indenture Act of 1939, as amended, it being understood that no
opinion is expressed as to any subsequent resale of the Notes.
7. The Notes, the Indenture and the Supplemental Indenture conform
in all material respect to the descriptions thereof in the Offering Memorandum
under the caption "Description of the Notes."
58
EXHIBIT 3
[FORM OF OPINION OF BROOKS & KUSHMAN]
1. To the best of such counsel's knowledge, all patents, trademarks and
service marks (registered or unregistered), and trade names, including
pending applications for any of the foregoing, that are owned, licensed
or used by Glasstech or any of its Subsidiaries in the United States or
abroad, are listed on Schedule A attached to such counsel's opinion
(the "Intellectual Property"; Intellectual Property licensed or
registered abroad the "Foreign Intellectual Property." Intellectual
Property other than Foreign Intellectual Property the "Domestic
Intellectual Property.").
2. Except as disclosed in the Offering Memorandum, Glasstech is the sole
and exclusive owner of all right, title and interest in and to the
Domestic Intellectual Property free and clear of all liens, claims,
charges, rights of use, encumbrances, and restrictions whatsoever and
to the best knowledge of such counsel, Glasstech is the sole and
exclusive owner of all right, title and interest in and to the Foreign
Intellectual Property free and clear of all liens, claims, charges,
rights of use, encumbrances, and restrictions whatsoever (in all cases
without payment to any other person or entity, except as set forth in
any sales contract in the ordinary course of business, and except for
maintenance fees payable to governmental entities in the ordinary
course of business).
3. Except as disclosed in the Final Memorandum, to the best of such
counsel's knowledge, the business of Glasstech or any of its
Subsidiaries, as conducted prior to the Time of Purchase, and the
consummation of the Offering and the other Transactions was not, is
not, and will not be in contravention of any patent, trademark, service
mark, trade name, copyright, or other proprietary right of any third
party.
4. Except as disclosed in the Final Memorandum, to the best of such
counsel's knowledge, the Intellectual Property rights are not infringed
by any person or other entity.
5. To the best of such counsel's knowledge, no product, process method or
operation presently sold, engaged in or em-
59
-2-
ployed by Glasstech or any of its Subsidiaries infringes upon any
rights owned by any other person, firm, corporation or other legal
entity.
6. Such statements in the Final Memorandum as counsel shall have
reasonably determined relate to Intellectual Property rights, insofar
as such statements constitute summaries of matters of law, are accurate
and complete statements or summaries of such matters of law set forth
therein.
References to the Final Memorandum in this Exhibit 2 shall include any
amendment or supplement thereto prepared in accordance with the provisions of
the Purchase Agreement at the Time of Purchase.