EXHIBIT 10.68
EAGLEPICHER INCORPORATED
$250,000,000 9.75% Senior Notes due 2013
PURCHASE AGREEMENT
July 31, 2003
New York, New York
UBS Securities LLC
ABN AMRO Incorporated
Banc One Capital Markets, Inc.
Harris Nesbitt Corp.
PNC Capital Markets, Inc.
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171
Ladies and Gentlemen:
EaglePicher Incorporated, an Ohio corporation (the "COMPANY"),
and each of the Guarantors (as defined herein), agree with you as follows:
1. Issuance of Notes. The Company proposes to issue and
sell to UBS Securities LLC, ABN AMRO Incorporated, Banc One Capital Markets,
Inc., Harris Nesbitt Corp. and PNC Capital Markets, Inc. (the "INITIAL
PURCHASERS") $250,000,000 aggregate principal amount of 9.75% Senior Notes due
2013 (the "ORIGINAL NOTES"). The Original Notes will be issued pursuant to an
indenture (the "INDENTURE"), to be dated the Closing Date (as defined herein),
by and among the Company, the Guarantors and Wells Fargo Bank, N.A., as trustee
(the "TRUSTEE"). The Company's obligations under the Original Notes will be
unconditionally guaranteed (the "GUARANTEES") on an unsecured senior basis by
the guarantors listed on Schedule I hereto (collectively, the "GUARANTORS" and,
together with the Company, the "ISSUERS"). All references herein to the Original
Notes include the related Guarantees, unless the context otherwise requires.
Capitalized terms used but not otherwise defined herein shall have the meanings
given to such terms in the Indenture.
-2-
The Original Notes will be offered and sold to the Initial
Purchasers pursuant to an exemption from the registration requirements under the
Securities Act of 1933, as amended (the "ACT"). The Issuers have prepared a
preliminary offering memorandum, dated July 21, 2003 (the "PRELIMINARY OFFERING
MEMORANDUM"), and a final offering memorandum dated July 31, 2003 and available
for distribution on the date hereof (the "OFFERING MEMORANDUM") relating to the
Company, the Guarantors and the Original Notes.
The Initial Purchasers have advised the Company that the
Initial Purchasers intend, as soon as they deem practicable after this Purchase
Agreement (this "AGREEMENT") has been executed and delivered, to resell (the
"EXEMPT RESALES") the Original Notes purchased by the Initial Purchasers under
this Agreement in private sales exempt from registration under the Act on the
terms set forth in the Offering Memorandum, as amended or supplemented, solely
to (i) persons whom the Initial Purchasers reasonably believe to be "qualified
institutional buyers," as defined in Rule 144A under the Act ("QIBs"), and (ii)
other eligible purchasers pursuant to offers and sales that occur outside the
United States within the meaning of Regulation S under the Act; the persons
specified in clauses (i) and (ii) are sometimes collectively referred to herein
as the "ELIGIBLE PURCHASERS."
Upon issuance of the Original Notes and until such time as the
same is no longer required under the applicable requirements of the Act, the
Original Notes shall bear the legend relating thereto set forth under "Notice to
Investors" in the Offering Memorandum.
Holders (including subsequent transferees) of the Original
Notes will have the registration rights set forth in the registration rights
agreement (the "REGISTRATION RIGHTS AGREEMENT") to be dated the Closing Date in
form and substance reasonably satisfactory to the Initial Purchasers and
conforming to the description thereof in the Offering Memorandum, for so long as
such Original Notes constitute "REGISTRABLE NOTES" (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Issuers will agree to (i) file with the Securities and Exchange Commission
(the "COMMISSION") under the circumstances set forth in the Registration Rights
Agreement, (a) a registration statement under the Act (the "EXCHANGE OFFER
REGISTRATION STATEMENT") relating to a new issue of debt securities
(collectively with the Private Exchange Notes (as defined in the Registration
Rights Agreement), the "EXCHANGE NOTES" and, together with the Original Notes,
the "NOTES," which term includes the guarantees related thereto) to be offered
in exchange for the Original Notes (the "EXCHANGE OFFER") and issued under the
Indenture or an indenture substantially identical to the Indenture and/or (b) a
shelf registration statement pursuant to Rule 415 under the Act (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer Registration
Statement, the "REGISTRATION STATEMENTS") relating to the resale by certain
holders of the Original Notes, and (ii) use their best efforts to cause such
Registration Statements to be declared effective. This Agreement, the Original
Notes, the Guarantees, the Indenture and the Registration Rights Agreement are
hereinafter sometimes referred to collectively as the "NOTE DOCUMENTS."
-3-
The Original Notes are being offered and sold by the Company
to repurchase up to $220.0 million aggregate principal amount of its outstanding
9 3/8% senior subordinated notes due 2008. In addition, on the Closing Date the
Company will repay all outstanding borrowings under the Company's existing
senior secured credit facility dated as of February 19, 1998, as amended (the
"EXISTING CREDIT AGREEMENT"), and enter into a new $275.0 million senior secured
credit facility (the "NEW CREDIT AGREEMENT") with Harris Nesbitt Corp., as
administrative agent and the lenders party thereto.
The offering of the Original Notes, the repayment of
outstanding amounts under the Existing Credit Agreement and the entering into of
the New Credit Agreement on the Closing Date (as defined below) are collectively
referred to as the "TRANSACTIONS." The Note Documents, the New Credit Agreement
and the Loan Documents (as defined in the New Credit Agreement) are collectively
referred to herein as the "TRANSACTION DOCUMENTS."
2. Agreements to Sell and Purchase. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained in this Agreement, the Issuers
agree to issue and sell to the Initial Purchasers, and the Initial Purchasers
agree to purchase from the Issuers, the aggregate principal amount of the
Original Notes set forth opposite their respective names in Schedule III hereto.
The purchase price for the Original Notes shall be 96.70% of their principal
amount.
3. Delivery and Payment. Delivery of, and payment of the
purchase price for, the Original Notes shall be made at 10:00 a.m., New York
City time, on August 7, 2003 (such date and time, the "CLOSING DATE") at the
offices of Cahill Gordon & Reindel LLP at 80 Pine Street, New York, New York
10005. The Closing Date and the location of delivery of and the form of payment
for the Original Notes may be varied by mutual agreement between the Initial
Purchasers and the Company.
One or more of the Original Notes in global form registered in
such names as the Initial Purchasers may request upon at least two business
days' notice prior to the Closing Date and having an aggregate principal amount
corresponding to the aggregate principal amount of the Original Notes shall be
delivered by the Company to the Initial Purchasers (or as the Initial Purchasers
direct), against payment by the Initial Purchasers of the purchase price
therefor by means of wire transfer of immediately available funds to such
account or accounts specified by the Company on or prior to the Closing Date, or
by such means as the parties hereto shall agree prior to the Closing Date.
4. Agreements of the Issuers. The Issuers, jointly and
severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers, without charge, with as many
copies of the Preliminary Offering Memorandum and the Offering
Memorandum, and any amendments or supplements
-4-
thereto, as the Initial Purchasers may reasonably request. The Issuers
consent to the use of the Preliminary Offering Memorandum and the
Offering Memorandum, and any amendments and supplements thereto
required pursuant to this Agreement, by the Initial Purchasers in
connection with Exempt Resales.
(b) Not to amend or supplement the Offering Memorandum
prior to the Closing Date unless the Initial Purchasers shall
previously have been advised of, and shall not have objected to, such
amendment or supplement within a reasonable time, but in any event not
longer than two business days after being furnished with a copy of such
amendment or supplement.
(c) If, during the time that an Offering Memorandum is
required to be delivered in connection with any Exempt Resales after
the date of this Agreement and prior to the consummation of the
Exchange Offer, any event shall occur that, in the judgment of the
Issuers or in the judgment of counsel to the Initial Purchasers, makes
any statement of a material fact in the Offering Memorandum, as then
amended or supplemented, untrue or that requires the making of any
additions to or changes in the Offering Memorandum in order to make the
statements in the Offering Memorandum, as then amended or supplemented,
in the light of the circumstances under which they are made, not
misleading, or if it is necessary to amend or supplement the Offering
Memorandum to comply with applicable laws, the Issuers shall promptly
notify the Initial Purchasers of such event and prepare an appropriate
amendment or supplement to the Offering Memorandum so that (i) the
statements in the Offering Memorandum, as amended or supplemented,
will, in the light of the circumstances at the time that the Offering
Memorandum is delivered to prospective Eligible Purchasers, not be
misleading and (ii) the Offering Memorandum will comply with applicable
law.
(d) To cooperate with the Initial Purchasers and counsel
to the Initial Purchasers in connection with the qualification or
registration of the Original Notes under the securities laws of such
jurisdictions as the Initial Purchasers may request and to continue
such qualification in effect so long as required for the Exempt
Resales. Notwithstanding the foregoing, no Issuer shall be required to
qualify as a foreign corporation in any jurisdiction in which it is not
so qualified or to file a general consent to service of process in any
such jurisdiction or to taxation in excess of a nominal dollar amount
in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if
requested by the Initial Purchasers, to confirm such advice in writing,
of the issuance by any securities commission of any stop order
suspending the qualification or exemption from qualification of any of
the Original Notes for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purpose by any securities
commission or other regulatory authority. The Issuers shall use their
best efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of any of the Original Notes
-5-
under any securities laws, and if at any time any securities commission
or other regulatory authority shall issue an order suspending the
qualification or exemption of any of the Original Notes under any
securities laws, the Issuers shall use their best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement becomes effective or is
terminated other than by reason of a default by the Initial Purchasers,
to pay all costs, expenses, fees, disbursements (including fees,
expenses and disbursements of counsel to the Issuers) reasonably
incurred and stamp, documentary or similar taxes incident to and in
connection with: (i) the preparation, printing and distribution of the
Preliminary Offering Memorandum and the Offering Memorandum (including,
without limitation, financial statements) and all amendments and
supplements thereto, (ii) all expenses (including travel expenses) of
the Issuers and the Initial Purchasers in connection with any meetings
with prospective investors in the Original Notes, (iii) the
preparation, notarization (if necessary) and delivery of the Note
Documents and all other agreements, memoranda, correspondence and
documents prepared and delivered in connection with this Agreement and
with the Exempt Resales, (iv) the issuance, transfer and delivery by
the Company and the Guarantors of the Original Notes and the
Guarantees, respectively, to the Initial Purchasers, (v) the
qualification or registration of the Notes for offer and sale under the
securities laws of the several states of the United States or provinces
of Canada (including, without limitation, the cost of printing and
mailing preliminary and final Blue Sky or legal investment memoranda
and fees and disbursements of counsel (including local counsel) to the
Initial Purchasers relating thereto), (vi) the furnishing of such
copies of the Preliminary Offering Memorandum and the Offering
Memorandum, and all amendments and supplements thereto, as may be
reasonably requested for use in connection with Exempt Resales, (vii)
the preparation of certificates for the Notes, (viii) the application
for quotation of the Notes in The PORTAL(SM) Market ("PORTAL") of the
National Association of Securities Dealers, Inc. ("NASD"), including,
but not limited to, all listing fees and expenses, (ix) the approval of
the Notes by The Depository Trust Company ("DTC") for "book-entry"
transfer, (x) the rating of the Notes by rating agencies, (xi) the fees
and expenses of the Trustee and its counsel and (xii) the performance
by the Issuers of their other obligations under the Note Documents. In
addition, if the transactions contemplated by this agreement are not
consummated or this agreement is terminated other than by reason of a
default by the Initial Purchasers, the Issuer shall pay the fees,
expenses and disbursements of counsel to the Initial Purchasers.
(g) To use the proceeds from the sale of the Original
Notes in the manner described in the Offering Memorandum under the
caption "Use of Proceeds."
-6-
(h) To do and perform all things required to be done and
performed under this Agreement by them prior to or after the Closing
Date and to satisfy all conditions precedent on their part to the
delivery of the Original Notes.
(i) Not to, and not to permit any of their subsidiaries
to, sell, offer for sale or solicit offers to buy any security (as
defined in the Act) that would be integrated with the sale of the
Original Notes in a manner that would require the registration under
the Act of the sale of the Original Notes to the Initial Purchasers or
any Eligible Purchasers.
(j) Not to permit any Issuer to, and to cause their other
affiliates (as defined in Rule 144 under the Act) not to, resell any of
the Original Notes that have been reacquired by any of them other than
to an Issuer or an affiliate of any Issuer.
(k) Not to engage, not to allow any of their subsidiaries
to engage, and to cause their other affiliates and any person acting on
their behalf (other than, in any case, the Initial Purchasers and any
of their affiliates, as to whom the Issuers make no covenant) not to
engage, in any form of general solicitation or general advertising
(within the meaning of Regulation D under the Act) in connection with
any offer or sale of the Original Notes in the United States prior to
the effectiveness of a registration statement with respect to the
Original Notes.
(l) Not to engage, not to allow any of their subsidiaries
to engage, and to cause their other affiliates and any person acting on
their behalf (other than, in any case, the Initial Purchasers and any
of their affiliates, as to whom the Issuers make no covenant) not to
engage, in any directed selling effort with respect to the Original
Notes, and to comply with the offering restriction requirements of
Regulation S under the Act. Terms used in this paragraph have the
meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any
of the Notes remain outstanding and are "restricted securities" within
the meaning of Rule 144(a)(3) under the Act and during any period in
which either EaglePicher Holdings, Inc. or the Company is not subject
to or has not voluntarily filed periodic and other required reports and
filings under Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), to make available upon request
the information required by Rule 144A(d)(4) under the Act to (i) any
holder or beneficial owner of Notes in connection with any sale of such
Notes and (ii) any prospective purchaser of such Notes from any such
holder or beneficial owner designated by the holder or beneficial
owner. The Issuers will pay the expenses of preparing, printing and
distributing such documents.
-7-
(n) To comply in all material respects with all of their
agreements set forth in the Registration Rights Agreement.
(o) To comply with all of their obligations set forth in
the representations letter of the Issuers to DTC relating to the
approval of the Original Notes by DTC for "book-entry" transfer and to
use their best efforts to obtain approval of the Original Notes by DTC
for "book-entry" transfer.
(p) To use their reasonable best efforts to effect the
inclusion of the Original Notes in PORTAL.
(q) Prior to the Closing Date, to furnish without charge
to the Initial Purchasers, (i) as soon as they have been prepared by
the Company, a copy of any regularly prepared final internal financial
statements of the Company and its subsidiaries for any period
subsequent to the period covered by the financial statements appearing
in the Offering Memorandum, (ii) copies of all other reports and other
communications (financial or otherwise) that the Issuers mail or
otherwise make available to security holders and (iii) such other
information as the Initial Purchasers shall reasonably request.
(r) Not to, and not to permit any of their affiliates or
anyone acting on their or their affiliates behalf to (other than the
Initial Purchasers and their affiliates), distribute any offering
material in connection with the offer and sale of the Original Notes
other than the Preliminary Offering Memorandum and the Offering
Memorandum.
(s) During the period of two years after the Closing Date
F or, if earlier, until such time as the Notes are no longer restricted
securities (as defined in Rule 144 under the Act), not to be or become
a closed-end investment company required to be registered, but not
registered, under the Investment Company Act of 1940, as amended.
(t) In connection with the offering, until the Initial
Purchasers shall have notified the Company of the completion of the
resale of the Notes, not to, and not to permit any of their affiliates
(as such term is defined in Rule 501(b) of Regulation D under the Act)
to, either alone or with one or more other persons, bid for or purchase
for any account in which they or any of their affiliates have a
beneficial interest any Notes; and none of the Issuers nor any of their
affiliates will make bids or purchases for the purpose of creating
actual, or apparent, active trading in, or raising the price of, the
Notes.
5. Representations and Warranties. (a) The Issuers,
jointly and severally, represent and warrant to the Initial Purchasers that:
-8-
(i) Each of the Preliminary Offering Memorandum and the
Offering Memorandum has been prepared for use in connection with the
Exempt Resales. The Preliminary Offering Memorandum as of its issue
date did not, and the Offering Memorandum as of its issue date does not
and as of the Closing Date will not, contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Issuers make no representation or warranty with respect to information
contained in or omitted from the Preliminary Offering Memorandum or the
Offering Memorandum, as supplemented or amended, in reliance upon and
in conformity with the information furnished to the Company in writing
by or on behalf of the Initial Purchasers relating to the Initial
Purchasers expressly for inclusion in the Preliminary Offering
Memorandum, the Offering Memorandum or any supplement or amendment
thereto. No order preventing the use of the Preliminary Offering
Memorandum or the Offering Memorandum, or asserting that any of the
transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued or to the
knowledge of the Company or the Subsidiaries, has been threatened.
(ii) There are no securities of the Issuers that are (a)
listed on a national securities exchange registered under Section 6 of
the Exchange Act or that are quoted in a United States automated
interdealer quotation system and (b) of the same class (within the
meaning of Rule 144A under the Act) as the Notes.
(iii) The "Principal stockholders" section of the Offering
Memorandum sets forth the outstanding capitalization of the Company and
its parent, EaglePicher Holdings, Inc. as of the Closing Date. All of
the issued and outstanding shares of capital stock or other equity
interests of the Company have been duly authorized and validly issued,
are fully paid and nonassessable and were not issued in violation of
any preemptive or similar rights. Attached hereto as Schedule II is a
true and complete list of each direct or indirect subsidiary of the
Company, and their jurisdictions of incorporation or formation, type of
entity and percentage equity ownership by the Company (the
"SUBSIDIARIES"). The entities listed on Schedule II hereto are the only
Subsidiaries, direct or indirect, of the Company. All of the issued and
outstanding shares of capital stock or other equity interests of each
of the Company's Subsidiaries have been duly and validly authorized and
issued, are fully paid and nonassessable, were not issued in violation
of any preemptive or similar rights and, except as set forth in the
Offering Memorandum, are owned directly or indirectly by the Company
free and clear of all Liens (as defined in the Offering Memorandum
under the caption "Description of the notes -- Certain definitions")
(other than those imposed by the Act, the securities or "Blue Sky" laws
of certain jurisdictions, the Existing Credit Agreement and the New
Credit Agreement). Except as set forth in the Offering Memorandum,
there are no outstanding options, warrants or other rights to acquire
or purchase, or instruments
-9-
convertible into or exchangeable for, any shares of capital stock of
any of the Company's Subsidiaries that are Guarantors. Except as set
forth in the Offering Memorandum, no holder of any securities of the
Company or any of the Subsidiaries (other than the Notes) is entitled
to have such securities registered under any registration statement
contemplated by the Registration Rights Agreement or any other
agreement.
(iv) Each of the Company and the Subsidiaries (A) is a
corporation, partnership or other entity duly incorporated or
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, as the case may be;
(B) has all requisite corporate or other power and authority, and has
all governmental licenses, authorizations, consents and approvals,
necessary to own its property and carry on its business as now being
conducted, except where the failure to obtain any such license,
authorization, consent and approval would not have a Material Adverse
Effect; and (C) is qualified to do business and is in good standing in
all jurisdictions in which the nature of the business conducted by it
makes such qualification necessary, except where the failure to be so
qualified and in good standing individually or in the aggregate would
not have a Material Adverse Effect. A "MATERIAL ADVERSE EFFECT" means
any material adverse effect on the business, condition (financial or
other), results of operations, performance, properties or prospects of
the Company and the Subsidiaries, taken as a whole.
(v) Each of the Issuers has all requisite corporate or
other power and authority to execute, deliver and perform all of its
obligations under the Transaction Documents to which it is a party and
to consummate the transactions contemplated by the Transaction
Documents to be consummated on its part and, without limitation, the
Company has all requisite corporate power and authority to issue, sell
and deliver and perform its obligations under the Notes and each
Guarantor has all requisite corporate or other power and authority to
execute, deliver and perform all its obligations under its Guarantee.
(vi) This Agreement has been duly and validly authorized,
executed and delivered by each Issuer.
(vii) The Indenture has been duly and validly authorized by
each Issuer and, when duly executed and delivered by each Issuer
(assuming the due authorization, execution and delivery thereof by the
Trustee), will be a legal, valid and binding obligation of each of the
Issuers, enforceable against each of them in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity and the discretion of the court
before which any proceeding therefor may be brought. The Indenture,
when executed and delivered, will conform in all material respects to
the description thereof in the Offering Memorandum.
-10-
(viii) The Original Notes have been duly and validly
authorized for issuance and sale to the Initial Purchasers by the
Company and, when issued, authenticated by the Trustee and delivered by
the Company against payment therefor by the Initial Purchasers in
accordance with the terms of this Agreement and the Indenture, the
Original Notes will be legal, valid and binding obligations of the
Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought. The Original Notes, when issued,
authenticated and delivered, will conform in all material respects to
the description thereof in the Offering Memorandum.
(ix) The Exchange Notes have been duly and validly
authorized for issuance by the Company and, when issued, authenticated
by the Trustee and delivered by the Company in accordance with the
terms of the Registration Rights Agreement, the Exchange Offer and the
Indenture, the Exchange Notes will be legal, valid and binding
obligations of the Company, entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity and the discretion of the court
before which any proceeding therefor may be brought.
(x) The Guarantees have been duly and validly authorized
by the Guarantors and, when the Original Notes are issued,
authenticated by the Trustee and delivered by the Company against
payment by the Initial Purchasers in accordance with the terms of this
Agreement and the Indenture, will be legal, valid and binding
obligations of the Guarantors, enforceable against each of them in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity and
the discretion of the court before which any proceeding therefor may be
brought. The Guarantees, when executed and delivered, will conform in
all material respects to the description thereof in the Offering
Memorandum.
(xi) The guarantees to be endorsed on the Exchange Notes
have been duly and validly authorized by the Guarantors and, when the
Exchange Notes are issued, authenticated by the Trustee and delivered
by the Company in accordance with the terms of the Registration Rights
Agreement, the Exchange Offer and the Indenture, will be legal, valid
and binding obligations of the Guarantors, enforceable against each of
them in accordance with their terms, except as the enforcement thereof
may be limited
-11-
by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought.
(xii) The Registration Rights Agreement has been duly and
validly authorized by each of the Issuers and, when duly executed and
delivered by each of the Issuers (assuming the due authorization,
execution and delivery thereof by the Initial Purchasers), will
constitute a legal, valid and binding obligation of each of the
Issuers, enforceable against each of them in accordance with its terms,
except that (A) the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity and the discretion 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. The
Registration Rights Agreement will conform in all material respects to
the summary description thereof in the Offering Memorandum.
(xiii) The New Credit Agreement has been duly and validly
authorized by the Company and its Subsidiaries and, when executed and
delivered by the Company and each Subsidiary (assuming the due
authorization, execution and delivery by the other parties thereto),
will be a legal, valid and binding obligation of each of the Company
and the Subsidiaries, enforceable against each of them in accordance
with its terms, except that (A) the enforcement thereof may be subject
to bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally, and general principles of equity and the discretion 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. The
New Credit Agreement, when executed and delivered, will conform in all
material respects to the summary description thereof in the Offering
Memorandum.
(xiv) All taxes, fees and other governmental charges that
are due and payable on or prior to the Closing Date in connection with
the execution, delivery and performance of the Note Documents and the
execution, delivery and sale of the Original Notes shall have been paid
by or on behalf of the Issuers at or prior to the Closing Date.
(xv) None of the Company or any of the Subsidiaries is (A)
in violation of its charter, bylaws or other constitutive documents,
(B) in default (or, with notice or lapse of time or both, would be in
default) in the performance or observance of any obligation, agreement,
covenant or condition contained in any bond, debenture, note,
indenture, mortgage, deed of trust, loan or credit agreement, lease,
license, franchise
-12-
agreement, authorization, permit, certificate or other agreement or
instrument to which any of them is a party or by which any of them is
bound or to which any of their assets or properties is subject
(collectively, "AGREEMENTS AND INSTRUMENTS"), or (C) in violation of
any law, statute, rule, regulation, judgment, order or decree of any
domestic or foreign court with jurisdiction over any of them or any of
their assets or properties or other governmental or regulatory
authority, agency or other body, except, in the case of clauses (B) and
(C) herein, for such defaults or violations as would not have, either
individually or in the aggregate, a Material Adverse Effect. There
exists no condition that, with notice, the passage of time or
otherwise, would constitute a default by the Company or the
Subsidiaries under any such document or instrument or result in the
imposition of any penalty or the acceleration of any indebtedness,
other than penalties, defaults or conditions that would not have a
Material Adverse Effect.
(xvi) The execution, delivery and performance by each of
the Issuers of the Transaction Documents to which it is a party
including the consummation of the offer and sale of the Original Notes
does not or will not violate, conflict with or constitute a breach of
any of the terms or provisions of or a default under (or an event that
with notice or the lapse of time, or both, would constitute a default),
or require consent under, or result in the creation or imposition of a
lien, charge or encumbrance on any property or assets of any of the
Company or any Subsidiary or an acceleration of any indebtedness of the
Company or any Subsidiary pursuant to, (A) the charter, bylaws or other
constitutive documents of the Company or any Subsidiary, (B) assuming
the consummation of the transactions contemplated thereby, any
Agreements and Instruments, (C) any law, statute, rule or regulation
applicable to the Company or any Subsidiary or their respective assets
or properties or (D) any judgment, order or decree of any domestic or
foreign court or governmental agency or authority having jurisdiction
over the Company or any Subsidiary or their respective assets or
properties, except in the case of clauses (B), (C) and (D) herein, for
such defaults, violations or conflicts as would not have, either
individually or in the aggregate, a Material Adverse Effect. Assuming
the accuracy of the representations and warranties of the Initial
Purchasers in Section 5(b) of this Agreement, no consent, approval,
authorization or order of, or filing, registration, qualification,
license or permit of or with, any court or governmental agency, body or
administrative agency, domestic or foreign, is required to be obtained
or made by the Company or any Subsidiary for the execution, delivery
and performance by the Company or any Subsidiary of the Transaction
Documents to which it is a party including the consummation of any of
the transactions contemplated thereby, except (x) such as have been or
will be obtained or made on or prior to the Closing Date, (y)
registration of the Exchange Offer or resale of the Notes under the Act
pursuant to the Registration Rights Agreement and (z) qualification of
the Indenture under the Trust Indenture Act of 1939, as amended (the
"TRUST INDENTURE ACT"), in connection with the issuance of the Exchange
Notes. No consents or waivers from any other person or entity are
required for the execution, delivery and performance of
-13-
this Agreement or any of the other Transaction Documents or the
consummation of any of the transactions contemplated thereby, other
than such consents and waivers as have been obtained or will be
obtained prior to the Closing Date.
(xvii) Except as set forth in the Offering Memorandum, there
is (A) no action, suit or proceeding before or by any court, arbitrator
or governmental agency, body or official, domestic or foreign, now
pending or threatened or contemplated, to which the Company or any
Subsidiary is or may be a party or to which the business, assets or
property of such person is or may be subject, (B) no statute, rule,
regulation or order that has been enacted, adopted, issued or proposed
by any governmental body or agency, domestic or foreign, (C) no
injunction, restraining order or order of any nature by a federal or
state court or foreign court of competent jurisdiction to which the
Company or any Subsidiary is or may be subject that (x) in the case of
clause (A) above, if determined adversely to the Company or any
Subsidiary, would, either individually or in the aggregate, (1) have a
Material Adverse Effect or (2) interfere with or adversely affect the
issuance of the Notes or the Guarantees or the consummation of the
transactions contemplated by any of the Transaction Documents and (y)
in the case of clauses (B) and (C) above, would, either individually or
in the aggregate, (1) have a Material Adverse Effect or (2) interfere
with or adversely affect the issuance of the Notes or the Guarantees or
the consummation of the transactions contemplated by any of the
Transaction Documents. Every request of any securities authority or
agency of any jurisdiction for additional information with respect to
the Notes that has been received by the Company or any Subsidiary or
their counsel prior to the date hereof has been, or will prior to the
Closing Date be, complied with in all material respects.
(xviii) Except as would not reasonably be expected to have a
Material Adverse Effect, (i) no labor disturbance by the employees of
any of the Company or the Subsidiaries exists or is imminent and (ii)
the Issuers are not aware of any existing or imminent labor disturbance
by the employees of any of the Company's or the Subsidiaries' principal
suppliers.
(xix) Except as disclosed in the Offering Memorandum or as
would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect (A) each of the Company and the
Subsidiaries is in compliance with and not subject to any pending or,
to the knowledge of the Issuers, threatened liability under applicable
Environmental Laws (as defined below), (B) each of the Company and the
Subsidiaries has made all filings and provided all notices required
under any applicable Environmental Law, and has, and is in compliance
with, all permits, licenses or other approvals required under any
applicable Environmental Laws for its current operations and each of
them is in full force and effect, (C) there is no civil, criminal or
administrative action, suit, demand, claim, hearing, notice of
violation, investigation, proceeding, notice or demand letter or
request for information pending or, to the
-14-
knowledge of the Issuers, threatened against the Company and the
Subsidiaries under any Environmental Law, (D) no lien, charge,
encumbrance or restriction has been recorded under any Environmental
Law with respect to any assets, facility or property owned, operated,
leased or controlled by the Company or any Subsidiary, (E) none of the
Company or the Subsidiaries has received notice that it has been
identified as a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA"), or any comparable state law, (F) no property or
facility of the Company or any Subsidiary is (y) listed or proposed for
listing on the National Priorities List under CERCLA or (z) listed in
the Comprehensive Environmental Response, Compensation, Liability
Information System List promulgated pursuant to CERCLA, or on any
comparable list maintained by any United States federal, state,
municipal, local, territorial or other governmental subdivision,
department, commission, board, bureau, agency, regulatory authority,
instrumentality or judicial or administrative body (each, a
"GOVERNMENTAL AUTHORITY") and (G) each of the Company and the
Subsidiaries maintains a system of internal environmental management
controls sufficient to provide reasonable assurance of compliance in
all material respects of its business facilities, real property and
operations with requirements of applicable Environmental Laws.
Notwithstanding anything in this clause (xix) to the contrary, except
as disclosed in the Preliminary Offering Memorandum or the Offering
Memorandum, no facts or circumstances exist and no event or condition
is occurring or has occurred with respect to the Company or any
Subsidiary relating to any Environmental Law, any release of any
hazardous, toxic or dangerous substance or waste, any chemical, any
solid waste, any other pollutant or contaminant, or the Company's or
any Subsidiaries' compliance with current requirements of Environmental
Law, that individually or in the aggregate, would have a Material
Adverse Effect.
For purposes of this Agreement, "ENVIRONMENTAL LAWS" means the
common law and all applicable federal, state, local and foreign laws,
regulations, rules, ordinances, codes, orders, decrees, judgments,
injunctions or any other legally enforceable requirement issued,
promulgated, approved or entered thereunder, relating to pollution or
protection of public or employee health and safety or the environment,
including, without limitation, laws relating to: (A) emissions,
discharges, releases or threatened releases of hazardous materials into
the environment (including, without limitation, ambient air, surface
water, ground water, land surface or subsurface strata), (B) the
manufacture, processing, distribution, use, generation, treatment,
storage, disposal, transport, arrangement for disposal or transport or
handling of hazardous, toxic or dangerous substances or waste, any
chemical, any solid waste, or any other pollutant or contaminant, and
(C) underground and above ground storage tanks and related piping, and
emissions, discharges, releases or threatened releases therefrom.
-15-
(xx) The Company and each Subsidiary has (A) all licenses,
certificates, permits, authorizations, approvals, franchises and other
rights from, and has made all declarations and filings with, all
applicable authorities, all self-regulatory authorities and all courts
and other tribunals (each, an "AUTHORIZATION") necessary to engage in
the business conducted by it in the manner described in the Offering
Memorandum, except where failure to hold such Authorizations would not
have a Material Adverse Effect, and (B) no reason to believe that any
governmental body or agency, domestic or foreign, is considering or
threatening limiting, suspending or revoking any such Authorization,
except where such limitation, suspension or revocation would not have a
Material Adverse Effect. All such Authorizations are valid and in full
force and effect and the Company and each Subsidiary is in compliance
in all material respects with the terms and conditions of all such
Authorizations and with the rules and regulations of the regulatory
authorities having jurisdiction with respect to such Authorizations,
except for any invalidity, failure to be in full force and effect or
noncompliance with any Authorization that would not have a Material
Adverse Effect.
(xxi) The Company and each Subsidiary has valid title in
fee simple to all items of real property and title to all personal
property owned by each of them, in each case free and clear of any
pledge, lien, encumbrance, security interest or other defect or claim
of any third party, except (A) such as do not materially and adversely
affect the value of such property and do not interfere with the use
made or proposed to be made of such property by the Company or such
Subsidiary and (B) Permitted Liens, as defined in the "Description of
the Notes" section of the Offering Memorandum. Any real property and
buildings held under lease by the Company or any such Subsidiary are
held under valid, subsisting and enforceable leases, with such
exceptions as do not materially interfere with the use made or proposed
to be made of such property and buildings by the Company or such
Subsidiary.
(xxii) The Company and each Subsidiary owns, possesses or
has the right to employ all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, the "INTELLECTUAL PROPERTY") necessary to conduct the
businesses operated by them as described in the Offering Memorandum,
except where the failure to own, possess or have the right to employ
such Intellectual Property would not have a Material Adverse Effect.
None of the Company or any Subsidiary has received any notice of
infringement of or conflict with (and none of them knows of any such
infringement of or a conflict with) asserted rights of others with
respect to any of the foregoing that, if such assertion of infringement
or conflict were sustained, would have a Material Adverse Effect. The
use of the Intellectual Property in connection with the business and
operations of the Company and the Subsidiaries does not infringe on the
rights of any person, except for such infringement as would not have a
Material Adverse Effect.
-16-
(xxiii) All tax returns required to be filed by the Company
and each Subsidiary have been filed in all jurisdictions where such
returns are required to be filed; and all taxes, including withholding
taxes, value added and franchise taxes, penalties and interest,
assessments, fees and other charges due or claimed to be due from such
entities or that are due and payable have been paid, other than those
being contested in good faith and for which reserves have been provided
in accordance with GAAP (as defined in the Offering Memorandum under
the caption "Description of the Notes -- Certain Definitions") or those
currently payable without penalty or interest and except where the
failure to make such required filings or payment would not have a
Material Adverse Effect. There are no material proposed additional tax
assessments against any of the Company and the Subsidiaries or their
assets or property.
(xxiv) None of the Company or the Subsidiaries has any
liability for any prohibited transaction or accumulated funding
deficiency (within the meaning of Section 412 of the Internal Revenue
Code of 1986, as amended (the "CODE")) or any complete or partial
withdrawal liability with respect to any pension, profit sharing or
other plan which is subject to the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), to which the Company or any of the
Subsidiaries makes or ever has made a contribution and in which any
employee of the Company or any of the Subsidiaries is or has ever been
a participant, except as would not have a Material Adverse Effect. With
respect to such plans, the Company and each of the Subsidiaries is in
compliance in all material respects with all applicable provisions of
ERISA, except as would not have a Material Adverse Effect.
(xxv) None of the Company or any Subsidiary is an
"investment company" or a company "controlled" by an "investment
company" incorporated in the United States within the meaning of the
Investment Company Act of 1940, as amended.
(xxvi) The Company and each Subsidiary maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that: (A) transactions are executed in accordance with management's
general or specific authorizations; (B) transactions are recorded as
necessary to permit preparation of its financial statements in
conformity with GAAP and to maintain accountability for assets; (C)
access to assets is permitted only in accordance with management's
general or specific authorization; and (D) the recorded accountability
for its assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(xxvii) The Company and each Subsidiary maintains insurance
covering its respective properties, assets, operations, personnel and
businesses, and such insurance is of such type and in such amounts in
accordance with customary industry practice to protect the Company and
each Subsidiary and their respective businesses.
-17-
(xxviii) None of the Company or any of its affiliates (as
defined in Rule 501(b) of Regulation D under the Act) has (A) taken,
directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Issuers to facilitate
the sale or resale of the Original Notes or (B) sold, bid for,
purchased or paid any person any compensation for soliciting purchases
of the Original Notes in a manner that would require registration of
the Original Notes under the Act or paid or agreed to pay to any person
any compensation for soliciting another to purchase any other
securities of any Issuer in a manner that would require registration of
the Original Notes under the Act.
(xxix) None of the Company or any of its affiliates (as
defined in Rule 501(b) of Regulation D under the Act) has, directly or
through any agent (other than the Initial Purchasers or any affiliate
of the Initial Purchasers, as to which no representation is made),
sold, offered for sale, contracted to sell, pledged, solicited offers
to buy or otherwise disposed of or negotiated in respect of, any
security (as defined in the Act) that is currently or will be
integrated with the sale of the Original Notes in a manner that would
require the registration of the Original Notes under the Act.
(xxx) None of the Issuers or their affiliates, or any
person acting on its or their behalf (other than the Initial
Purchasers, as to whom the Issuers make no representation), is engaged
in any directed selling effort with respect to the Original Notes, and
each of them has complied with the offering restrictions requirement of
Regulation S under the Act. Terms used in this paragraph have the
meaning given to them by Regulation S.
(xxxi) No form of general solicitation or general
advertising was used by the Company or any of its representatives
(other than the Initial Purchasers, as to whom the Issuers make no
representation) in connection with the offer and sale of any of the
Original Notes or in connection with Exempt Resales, including, but not
limited to, articles, notices or other communications published in any
newspaper, magazine or similar medium or broadcast over television,
radio or the Internet, or any seminar or meeting whose attendees have
been invited by any general solicitation or general advertising (within
the meaning of Regulation D under the Act). Neither the Company nor any
of its affiliates has entered into, and neither the Company nor any of
its affiliates will enter into, any contractual arrangement with
respect to the distribution of the Original Notes except for this
Agreement.
(xxxii) As of May 31, 2003, none of the Company or any
Subsidiary had any material liabilities or obligations, direct or
contingent, that were not set forth in the Company's consolidated
balance sheet as of such date or in the notes thereto set forth in the
Offering Memorandum. Since May 31, 2003, except as set forth in the
Offering Memorandum, (A) none of the Company or any Subsidiary has (1)
incurred any liabilities or obligations, direct or contingent, that
would have a Material Adverse Effect,
-18-
or (2) entered into any material transaction not in the ordinary
course of business, (B) there has not been any event or development
with respect to the business or condition (financial or other) of the
Company and the Subsidiaries that, either individually or in the
aggregate, would have a Material Adverse Effect, (C) there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock and (D) there has not been
any material change in the long-term debt of the Company or any of the
Subsidiaries.
(xxxiii) None of the Company or any of the Subsidiaries (or
any agent thereof acting on their behalf) has taken, and none of them
will take, any action that might cause this Agreement or the issuance
or sale of the Notes to violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System, as in effect, or as the same
may hereafter be in effect, on the Closing Date.
(xxxiv) Deloitte & Touche LLP are independent accountants
within the meaning of the Act. The historical financial statements and
the notes thereto included in the Offering Memorandum present fairly in
all material respects the consolidated financial position and results
of operations of the Company and its consolidated subsidiaries at the
respective dates and for the respective periods indicated. Such
financial statements have been prepared in accordance with GAAP applied
on a consistent basis throughout the periods presented (except as
disclosed in the Offering Memorandum). The other financial and
statistical information and data included in the Offering Memorandum
are accurately presented in all material respects and prepared on a
basis consistent with the financial statements and the books and
records of the Company and its consolidated subsidiaries.
(xxxv) On the date hereof and the Closing Date (both
immediately prior to and immediately following the issuance of the
Original Notes), the Company and each of the Subsidiaries is and will
be Solvent. None of the Company or any of the Subsidiaries is
contemplating either the filing of a petition under any bankruptcy or
insolvency laws or the liquidating of all or a substantial portion of
its property, and the Company has no knowledge of any person
contemplating the filing of any such petition against the Company or
any Subsidiary. As used herein, "SOLVENT" shall mean, for any person on
a particular date, that on such date (A) the fair value of the property
of such person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such person,
(B) the present fair saleable value of the assets of such person is not
less than the amount that will be required to pay the probable
liability of such person on its debts as they become absolute and
matured, (C) such person does not intend to, and does not believe that
it will, incur debts and liabilities beyond such person's ability to
pay as such debts and liabilities mature, (D) such person is not
engaged in a business or a transaction, and is not about to engage in a
business or a
-19-
transaction, for which such person's property would constitute
unreasonably small capital and (E) such person is able to pay its debts
as they become due and payable.
(xxxvi) Except as described in the section entitled "Plan of
Distribution" in the Offering Memorandum, there are no contracts,
agreements or understandings between the Company or any of the
Subsidiaries and any other person other than the Initial Purchasers
that would give rise to a valid claim against the Company, any such
Subsidiary or the Initial Purchasers for a brokerage commission,
finder's fee or like payment in connection with the issuance, purchase
and sale of the Original Notes.
(xxxvii) The statistical and market-related data included in
the Offering Memorandum are based on or derived from sources that the
Issuers believe to be reliable and accurate in all material respects
and represent their good faith estimates that are made on the basis of
data derived from such sources.
(xxxviii)As of the Closing Date, each of the representations
and warranties of the Company and the Subsidiaries set forth in each of
the Transaction Documents will be true and correct in all material
respects as if made at and as of such date (other than to the extent
any such representation or warranty is expressly made as to only a
certain other date).
(xxxix) Each certificate signed by an officer of any Issuer
and delivered to the Initial Purchasers or counsel for the Initial
Purchasers pursuant to, or in connection with, this Agreement shall be
deemed to be a representation and warranty by such Issuer to the
Initial Purchasers as to the matters covered by such certificate.
The Issuers acknowledge that the Initial Purchasers and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 8 of this Agreement, counsel to the Issuers and counsel to the Initial
Purchasers will rely upon the accuracy and truth of the foregoing
representations and the Issuers hereby consent to such reliance.
(b) Each Initial Purchaser acknowledges that it is
purchasing the Original Notes pursuant to a private sale exemption from
registration under the Securities Act, and that the Original Notes have not been
registered under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons except
pursuant to an exemption from the registration requirements of the Securities
Act. Each Initial Purchaser represents, warrants and covenants to the Issuers
that:
(i) It is a QIB with such knowledge and experience in
financial and business matters as are necessary in order to evaluate
the merits and risks of an investment in the Original Notes.
-20-
(ii) (A) Neither it, nor any person acting on its behalf,
has solicited or will solicit offers for, or offer or sell, the
Original Notes 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 and (B) it has solicited and will solicit offers for
the Original Notes only from, and will offer and sell the Original
Notes only to (1) persons whom such 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 Purchasers
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 reliance on the exemption from the registration requirements
of the Act pursuant to Rule 144A, or (2) persons other than U.S.
persons outside the United States in reliance upon, and in compliance
with the exemption from the registration requirements of the Act
provided by Regulation S.
(iii) With respect to offers and sales outside the United
States:
(A) such Initial Purchaser will comply with all
applicable laws and regulations in each jurisdiction in which
it acquires, offers, sells or delivers Original Notes or has
in its possession or distributes either any Offering
Memorandum or any such other material, in all cases at its own
expense; and
(B) such Initial Purchaser has offered the
Original Notes and will offer and sell the Original Notes (1)
as part of its distribution at any time and (2) otherwise
until 40 days after the later of the commencement of the
offering of the Original Notes and the Closing Date, only in
accordance with Rule 903 of Regulation S or another exemption
from the registration requirements of the Act. Accordingly,
neither such Initial Purchaser nor any persons acting on its
behalf has engaged or will engage in any directed selling
efforts (within the meaning of Regulation S) with respect to
the Original Notes, and any such persons have complied and
will comply with the offering restrictions requirements of
Regulation S.
Terms used in this Section 5(b)(iii) have the meanings given
to them by Regulation S.
(iv) The source of funds being used by it to acquire the
Original Notes does not include the assets of any "employee benefit
plan" (within the meaning of Section 3 of ERISA) or any "plan" (within
the meaning of Section 4975 of the Code).
(v) It will not and will not permit any of its affiliates
or anyone acting on its or its affiliates' behalf to distribute any
offering material, including, without limitation,
-21-
the Preliminary Offering Memorandum and the Offering Memorandum, for
any purpose other than in connection with the Exempt Resales.
(vi) It will notify the Company in writing when the resale
of the Notes has been completed.
The Initial Purchasers understand that the Issuers and, for
purposes of the opinions to be delivered to them pursuant to Section 8 hereof,
counsel to the Issuers and counsel to the Initial Purchasers will rely upon the
accuracy and truth of the foregoing representations, and the Initial Purchasers
hereby consent to such reliance.
6. Indemnification. (a) Each of the Issuers, jointly and
severally, agrees to indemnify and hold harmless the Initial Purchasers, each
person, if any, who controls the Initial Purchasers within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, the agents,
employees, officers and directors of the Initial Purchasers and the agents,
employees, officers and directors of any such controlling person from and
against any and all losses, liabilities, claims, damages and expenses whatsoever
(including, but not limited, to reasonable attorneys' fees and any and all
reasonable expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all reasonable amounts paid in settlement of any claim or litigation)
(collectively, "LOSSES") to which they or any of them may become subject under
the Act, the Exchange Act or otherwise insofar as such Losses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Offering
Memorandum or the Offering Memorandum, or in any supplement thereto or amendment
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that the Issuers will not be liable in any such case to the extent, but
only to the extent, that any such Loss arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
relating to the Initial Purchasers furnished to the Company by or on behalf of
the Initial Purchasers expressly for use therein; and provided further, however,
that with respect to any untrue statement or omission from the Preliminary
Offering Memorandum the indemnity agreement contained in this Section 6(a) shall
not inure to the benefit of any Initial Purchaser to the extent that the sale to
the person asserting any such Loss was an initial resale by such Initial
Purchaser and any such Loss of or with respect to such Initial Purchaser results
from the fact that both (A) to the extent required by applicable law, a copy of
the Offering Memorandum was not sent or given to such person at or prior to the
written confirmation of the sale of the Notes to such person; provided, however,
that the Issuers provided the Offering Memorandum to the Initial Purchasers in
sufficient quantity and time to be so delivered and (B) the untrue statement in
or omission from the Preliminary Offering Memorandum was corrected in the
Offering Memorandum. This indemnity agreement will be in addition to
-22-
any liability that the Issuers may otherwise have, including, but not limited
to, liability under this Agreement.
(b) The Initial Purchasers agree severally and not
jointly to indemnify and hold harmless each Issuer, each person, if any, who
controls each Issuer within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, and each of their respective agents, employees,
officers and directors and the agents, employees, officers and directors of any
such controlling person from and against any Losses to which they or any of them
may become subject under the Act, the Exchange Act or otherwise insofar as such
Losses (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
any such Loss arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with information relating to the Initial Purchasers furnished
in writing to the Company by or on behalf of the Initial Purchasers expressly
for use therein. The Issuers and the Initial Purchasers acknowledge that the
information described in Section 9 is the only information furnished in writing
by the Initial Purchasers to the Issuers expressly for use in the Preliminary
Offering Memorandum or the Offering Memorandum.
(c) Promptly after receipt by an indemnified party under
subsection 6(a) or 6(b) above of notice of the commencement of any action, suit
or proceeding (collectively, an "ACTION"), such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 6 except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such action, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including
-23-
any impleaded parties) include such indemnified party and the indemnifying
parties (or such indemnifying parties have assumed the defense of such action),
and such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them that are different from or additional to
those available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such reasonable fees and expenses of counsel shall be borne by the indemnifying
parties. In no event shall the indemnifying party be liable for the fees and
expenses of more than one counsel (together with appropriate local counsel) at
any time for all indemnified parties in connection with any one action or
separate but substantially similar or related actions arising in the same
jurisdiction out of the same general allegations or circumstances. An
indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent which consent may not be unreasonably
withheld. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by paragraph (a) or (b)
of this Section 6, then the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 45 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 45 days prior notice of its intention to settle.
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 release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
7. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6 of this
Agreement is for any reason held to be unavailable from the indemnifying party,
or is insufficient to hold harmless a party indemnified under Section 6 of this
Agreement, each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such aggregate Losses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuers, on the one hand, and the Initial Purchasers, on the other hand,
from the offering of the Original Notes or (ii) if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault of the
Issuers, on the one hand, and the Initial Purchasers, on the other hand, in
connection with the statements or omissions that resulted in such Losses, as
well as any other relevant equitable considerations. The relative benefits
received by the Issuers, on the one hand, and the Initial Purchasers, on the
other hand, shall be deemed to be in the same proportion as (x) the total
proceeds from the offering of Original Notes (net of discounts and commissions
but before deducting expenses) received by the Issuers are to (y) the total
discount received by the Initial
-24-
Purchasers. The relative fault of the Issuers, on the one hand, and the Initial
Purchasers, on the other hand, 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 Issuers or the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission or alleged statement or omission.
The Issuers and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to above. Notwithstanding the
provisions of this Section 7, (i) in no case shall the Initial Purchasers be
required to contribute any amount in excess of the amount by which the total
discount applicable to the Original Notes pursuant to this Agreement exceeds the
amount of any damages that the Initial Purchasers have otherwise been required
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission and (ii) 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. For purposes of this Section 7, each person, if any, who
controls the Initial Purchasers within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act shall have the same rights to contribution as
the Initial Purchasers, and each person, if any, who controls any Issuer within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and
each director, officer, employee and agent of such Issuer shall have the same
rights to contribution as such Issuer. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action against such
party in respect of which a claim for contribution may be made against another
party or parties under this Section 7, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 7 or otherwise, except to
the extent that it has been prejudiced in any material respect by such failure;
provided, however, that no additional notice shall be required with respect to
any action for which notice has been given under Section 6 for purposes of
indemnification. Anything in this section to the contrary notwithstanding, no
party shall be liable for contribution with respect to any action or claim
settled without its written consent, provided, however, that such written
consent was not unreasonably withheld.
8. Conditions of Initial Purchasers' Obligations. The
obligations of the Initial Purchasers to purchase and pay for the Original
Notes, as provided for in this Agreement, shall be subject to satisfaction of
the following conditions prior to or concurrently with such purchase:
(a) All of the representations and warranties of the
Issuers contained in this Agreement shall be true and correct, or true
and correct in all material respects where
-25-
such representations and warranties are not qualified by materiality or
Material Adverse Effect, on the date of this Agreement and, in each
case after giving effect to the transactions contemplated hereby, on
the Closing Date, except that if a representation and warranty is made
as of a specific date, and such date is expressly referred to therein,
such representation and warranty shall be true and correct (or true and
correct in all material respects, as applicable) as of such date. The
Issuers shall have performed or complied with all of the agreements and
covenants contained in this Agreement and required to be performed or
complied with by them at or prior to the Closing Date.
(b) The Offering Memorandum shall have been printed and
copies distributed to the Initial Purchasers on the day following the
date of this Agreement or at such later date as the Initial Purchasers
may determine. No stop order suspending the qualification or exemption
from qualification of the Original Notes in any jurisdiction shall have
been issued and no proceeding for that purpose shall have been
commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency that would, as of the Closing Date, prevent the
issuance of the Original Notes or consummation of the Exchange Offer;
except as disclosed in the Offering Memorandum, no action, suit or
proceeding shall have been commenced and be pending against or
affecting or, to the knowledge of the Issuers, threatened against the
Company and/or any Subsidiary before any court or arbitrator or any
governmental body, agency or official that, if adversely determined,
would reasonably be expected to have a Material Adverse Effect; and no
stop order preventing the use of the Preliminary Offering Memorandum or
the Offering Memorandum, or any amendment or supplement thereto, or any
order asserting that any of the transactions contemplated by this
Agreement are subject to the registration requirements of the Act shall
have been issued. The Company shall not have amended or supplemented
the Offering Memorandum unless the Initial Purchasers shall previously
have been advised of such proposed amendment or supplement at least two
business days prior to the proposed use, and shall not have reasonably
objected to such amendment or supplement.
(d) The Initial Purchasers shall have received
certificates, dated the Closing Date, signed by two authorized officers
of each of the Company and the Guarantors confirming, as of the Closing
Date, to their knowledge, the matters set forth in paragraphs (a), (b)
and (c) of this Section 8.
(e) The Initial Purchasers shall have received on the
Closing Date an opinion dated the Closing Date, addressed to the
Initial Purchasers, of Squire, Sanders & Dempsey LLP, counsel to the
Issuers and substantially in the form of Exhibit A-1, attached
-26-
hereto and in form and substance reasonably satisfactory to the Initial
Purchasers and counsel to the Initial Purchasers.
(f) The Initial Purchasers shall have received on the
Closing Date an opinion (satisfactory in form and substance to the
Initial Purchasers) dated the Closing Date of Cahill Gordon & Reindel
LLP, counsel to the Initial Purchasers.
(g) The Initial Purchasers shall have received a "comfort
letter" from Deloitte & Touche LLP, independent public accountants for
the Company, dated the date of this Agreement, addressed to the Initial
Purchasers and in form and substance satisfactory to the Initial
Purchasers and counsel to the Initial Purchasers. In addition, the
Initial Purchasers shall have received a "bring-down comfort letter"
from Deloitte & Touche LLP, dated as of the Closing Date, addressed to
the Initial Purchasers and in form and substance satisfactory to the
Initial Purchasers and counsel to the Initial Purchasers.
(h) Each of the Issuers shall have entered into the
Indenture and each of the Initial Purchasers shall have received
copies, conformed as executed, thereof.
(i) Each of the Issuers shall have entered into the
Registration Rights Agreement and each of the Initial Purchasers shall
have received counterparts, conformed as executed, thereof.
(j) Each of the Issuers shall have entered into the New
Credit Agreement and the Loan Documents and each of the Initial
Purchasers shall have received counterparts, conformed as executed,
thereof.
(k) The Company shall have repaid all of the outstanding
obligations under the Existing Credit Agreement with a portion of its
borrowings under the New Credit Agreement. Upon such payment, the
Existing Credit Agreement shall be terminated in accordance with the
terms thereof.
(l) There shall exist no event or condition that would
constitute a default or an event of default under any of the
Transaction Documents that would result in a Material Adverse Effect or
adversely affect the ability of the Company and the Subsidiaries to
consummate the offering of the Original Notes.
(m) All government authorizations required in connection
with the issue and sale of the Notes as contemplated under this
Agreement and the performance of the Company's obligations hereunder
and under the Indenture and the Notes shall be in full force and
effect.
-27-
(n) The Initial Purchasers shall have been furnished with
wiring instructions for the application of the proceeds of the Original
Notes in accordance with this Agreement and such other information as
it may reasonably request.
(o) Cahill Gordon & Reindel LLP, counsel to the Initial
Purchasers, shall have been furnished with such documents as they may
reasonably request to enable them to review or pass upon the matters
referred to in this Section 8 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions contained in this Agreement.
(p) The Original Notes shall be eligible for trading in
PORTAL upon issuance.
(q) All agreements set forth in the representation letter
of the Issuers to DTC relating to the approval of the Notes by DTC for
"book-entry" transfer shall have been complied with.
(r) EaglePicher Holdings, Inc. shall have amended its
Certificate of Designations, Rights and Preferences with respect to its
Series B 11 3/4% cumulative exchangeable redeemable preferred stock to
the satisfaction of the Initial Purchasers and each of the Initial
Purchasers shall have received copies, conformed as executed, thereof.
If any of the conditions specified in this Section 8 shall not
have been fulfilled when and as required by this Agreement to be fulfilled (or
waived by the Initial Purchasers), this Agreement may be terminated by the
Initial Purchasers on notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party. Notwithstanding any such termination, the provisions of
Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.
The documents required to be delivered by this Section 8 will
be delivered at the office of counsel for the Initial Purchasers on the Closing
Date.
9. Initial Purchasers' Information. The Issuers and the
Initial Purchasers severally acknowledge that the statements with respect to the
delivery of the Original Notes to the Initial Purchasers set forth in the third,
sixth and seventh paragraphs under the caption "Plan of distribution" in the
Preliminary Offering Memorandum and the Offering Memorandum constitute the only
information furnished in writing by the Initial Purchasers expressly for use in
the Preliminary Offering Memorandum or the Offering Memorandum.
10. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements contained in this
Agreement, including the agreements contained in Sections 4(f) and 11(d), the
indemnity agreements contained in Section 6 and the
-28-
contribution agreements contained in Section 7 shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
the Initial Purchasers or any controlling person thereof or by or on behalf of
the Issuers or any controlling person thereof, and shall survive delivery of and
payment for the Original Notes to and by the Initial Purchasers. The agreements
contained in Sections 4(f), 6, 7, 9 and 11(d) shall survive the termination of
this Agreement, including pursuant to Section 11.
11. Effective Date of Agreement; Termination. (a) This
Agreement shall become effective upon execution and delivery of a counterpart
hereof by each of the parties hereto.
(b) The Initial Purchasers shall have the right to
terminate this Agreement at any time prior to the Closing Date by notice to the
Company from the Initial Purchasers, without liability (other than with respect
to Sections 6 and 7) on the Initial Purchasers' part to the Issuers if, on or
prior to such date, (i) any of the Issuers shall have failed, refused or been
unable to perform in any material respect any agreement on its part to be
performed under this Agreement when and as required, (ii) any other condition to
the obligations of the Initial Purchasers under this Agreement to be fulfilled
by the Issuers pursuant to Section 8 is not fulfilled when and as required,
(iii) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been suspended
or materially limited, or minimum prices shall have been established thereon by
the Commission, or by such exchange or other regulatory body or governmental
authority having jurisdiction, (iv) a general banking moratorium shall have been
declared by federal or New York authorities, (v) there is an outbreak or
escalation of hostilities or other national or international calamity, in any
case involving the United States, on or after the date of this Agreement, or if
there has been a declaration by the United States of a national emergency or war
or other national or international calamity or crisis (economic, political,
financial or otherwise) which affects the U.S. and international markets, making
it, in the Initial Purchasers' judgment, impracticable to proceed with the
offering or delivery of the Original Notes on the terms and in the manner
contemplated in the Offering Memorandum or (vi) there shall have been such a
material adverse change in general economic, political or financial conditions
or the effect (or potential effect if the financial markets in the United States
have not yet opened) of international conditions on the financial markets in the
United States shall be such as, in the Initial Purchasers' judgment, to make it
inadvisable or impracticable to proceed with the offering or delivery of the
Notes on the terms and in the manner contemplated in the Offering Memorandum.
(c) Any notice of termination pursuant to this Section 11
shall be given at the address specified in Section 12 below by telephone, telex,
telephonic facsimile or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to
clause (i) or (ii) of Section 11(b), or if the sale of the Notes provided for in
this Agreement is not consummated
-29-
because of any refusal, inability or failure on the part of the Issuers to
satisfy any condition to the obligations of the Initial Purchasers set forth in
this Agreement to be satisfied on their part or because of any refusal,
inability or failure on the part of the Issuers to perform any agreement in this
Agreement or comply with any provision of this Agreement, the Issuers will,
subject to demand by the Initial Purchasers, reimburse the Initial Purchasers
for all of their out-of-pocket expenses (including the fees and expenses of the
Initial Purchasers' counsel) incurred in connection with this Agreement.
12. Notice. All communications with respect to or under
this Agreement, except as may be otherwise specifically provided in this
Agreement, shall be in writing and, if sent to the Initial Purchasers, shall be
mailed, delivered, or, telegraphed or telecopied and confirmed in writing to UBS
Securities LLC, 299 Park Avenue, New York, New York 10171 (telephone: (212)
821-3000, fax number: (203) 719-1075), Attention: Syndicate Department; and if
sent to the Issuers, shall be mailed, delivered or, telegraphed or telecopied
and confirmed in writing to EaglePicher Incorporated, 11201 North Tatum
Boulevard, Suite 110, Phoenix, Arizona 85028 (telephone: (602) 652-9600, fax:
(602) 652-9601), Attention: David Krall, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged by telecopier machine, if telecopied; and one business day after
being timely delivered to a next-day air courier.
13. Parties. This Agreement shall inure solely to the
benefit of, and shall be binding upon, the Initial Purchasers, the Issuers and
the controlling persons and agents referred to in Sections 6 and 7, and their
respective successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained. The
term "successors and assigns" shall not include a purchaser, in its capacity as
such, of Notes from the Initial Purchasers.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
15. Captions. The captions included in this Agreement are
included solely for convenience of reference and are not to be considered a part
of this Agreement.
16. Counterparts. This Agreement may be executed in
various counterparts that together shall constitute one and the same instrument.
If the foregoing Purchase Agreement correctly sets forth the
understanding among the Issuers and the Initial Purchasers, please so indicate
in the space provided below for the purpose, whereupon this letter and your
acceptance shall constitute a binding agreement among the Issuers and the
Initial Purchasers.
EAGLEPICHER INCORPORATED
By: _____________________________
Name:
Title:
EAGLEPICHER HOLDINGS, INC.
By: _____________________________________
Name:
Title:
CARPENTER ENTERPRISES LIMITED
By: _____________________________________
Name:
Title:
CINCINNATI INDUSTRIAL MACHINERY SALES
COMPANY
By: _____________________________________
Name:
Title:
DAISY PARTS, INC.
By: _____________________________________
Name:
Title:
EAGLE-PICHER ACCEPTANCE CORPORATION
By: _____________________________________
Name:
Title:
EAGLE-PICHER DEVELOPMENT COMPANY, INC.
By: _____________________________________
Name:
Title:
EAGLE-PICHER FAR EAST, INC.
By: _____________________________________
Name:
Title:
EAGLEPICHER FILTRATION & MINERALS, INC.
By: _____________________________________
Name:
Title:
EAGLEPICHER TECHNOLOGIES, LLC
By: _____________________________________
Name:
Title:
EPMR CORPORATION
By: _____________________________________
Name:
Title:
HILLSDALE TOOL & MANUFACTURING CO.
By: _____________________________________
Name:
Title:
Confirmed and accepted as of the date first above written:
By: UBS SECURITIES LLC, as Representative
of the several Initial Purchasers
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
SCHEDULE I
GUARANTORS
EaglePicher Holdings, Inc., a Delaware corporation
Carpenter Enterprises Limited, a Michigan corporation
Cincinnati Industrial Machinery Sales Company, an Ohio corporation
Daisy Parts, Inc., a Michigan corporation
Eagle-Picher Acceptance Corporation, an Ohio corporation
Eagle-Picher Development Company, Inc., a Delaware corporation
Eagle-Picher Far East, Inc., a Delaware corporation
EaglePicher Filtration & Minerals, Inc., a Nevada corporation
EaglePicher Technologies, LLC, a Delaware limited liability company
EPMR Corporation, a Michigan corporation
Hillsdale Tool & Manufacturing Co., a Michigan corporation
SCHEDULE II
EAGLEPICHER INCORPORATED
SCHEDULE OF SUBSIDIARIES
- --------------------------------------------------------------
JURISDICTION OF
NAME ORGANIZATION
- --------------------------------------------------------------
WHOLLY OWNED DOMESTIC SUBSIDIARIES(1)
- --------------------------------------------------------------
Carpenter Enterprises Limited Michigan
- --------------------------------------------------------------
Cincinnati Industrial Machinery Sales Company Ohio
- --------------------------------------------------------------
Daisy Parts, Inc. Michigan
- --------------------------------------------------------------
Eagle-Picher Acceptance Corporation Ohio
- --------------------------------------------------------------
Eagle-Picher Development Company, Inc. Delaware
- --------------------------------------------------------------
Eagle-Picher Far East, Inc. Delaware
- --------------------------------------------------------------
EaglePicher Filtration & Minerals, Inc. Nevada
- --------------------------------------------------------------
EaglePicher Technologies, LLC Delaware
- --------------------------------------------------------------
EPMR Corporation (formerly MARCO) Michigan
- --------------------------------------------------------------
Hillsdale Tool & Manufacturing Co. Michigan
- --------------------------------------------------------------
Eagle-Picher Funding Corporation(2) Delaware
- --------------------------------------------------------------
EaglePicher Investments, LLC Delaware
- --------------------------------------------------------------
PARTIALLY OWNED DOMESTIC SUBSIDIARIES
- --------------------------------------------------------------
Eagle-Picher Horizon Batteries, LLC(3) Delaware
- --------------------------------------------------------------
NTZ Micro Filtration, Inc.(4) Michigan
- --------------------------------------------------------------
- ---------------------
(1) Includes both direct and indirect subsidiaries.
(2) 90% owned by EaglePicher Incorporated and 10% owned by a voting trust of
EaglePicher Holdings, Inc.
(3) 50% owned by EaglePicher Incorporated.
(4) 35% owned by EaglePicher Incorporated. NTZ Micro Filtration, Inc. will be
converted into a Delaware limited liability company named EP NTZ Micro
Filtration, LLC. EaglePicher Incorporated will initially be allocated 40%
of the profits and losses. After five years, EaglePicher Incorporated will
be allocated 60% of the profits and losses. EaglePicher will have the
right to elect a majority of the board of directors of EP NTZ Micro
Filtration, LLC.
- --------------------------------------------------------------------------------
JURISDICTION OF
NAME ORGANIZATION
- --------------------------------------------------------------------------------
WHOLLY OWNED FOREIGN SUBSIDIARIES(5)
- --------------------------------------------------------------------------------
Eagle-Picher Automotive GmbH Germany
- --------------------------------------------------------------------------------
Eagle-Picher Energy Products Corp. (formerly Blue Star) Canada
- --------------------------------------------------------------------------------
Eagle-Picher Hillsdale Limited England & Wales
- --------------------------------------------------------------------------------
Eagle-Picher Industries Europe B.V. Netherlands
- --------------------------------------------------------------------------------
Eagle-Picher Industries of Canada Limited Ontario, Canada
- --------------------------------------------------------------------------------
Eagle-Picher Minerals Europe GmbH & Co. KG Germany
- --------------------------------------------------------------------------------
Eagle-Picher Minerals Europe Verwaltungs-und Beteiligungs GmbH Germany
- --------------------------------------------------------------------------------
Eagle-Picher Minerals International S.A.R.L. France
- --------------------------------------------------------------------------------
Eagle-Picher Technologies GmbH Germany
- --------------------------------------------------------------------------------
Eagle-Picher UK Limited England & Wales
- --------------------------------------------------------------------------------
Eagle-Picher Wolverine GmbH Germany
- --------------------------------------------------------------------------------
Eagle-Picher, Inc. Virgin Islands
- --------------------------------------------------------------------------------
EPTEC, S.A. de C.V. Mexico
- --------------------------------------------------------------------------------
Equipos de Acuna, S.A. de C.V.(6) Mexico
- --------------------------------------------------------------------------------
PARTIALLY OWNED FOREIGN SUBSIDIARIES
- --------------------------------------------------------------------------------
Diehl & Eagle-Picher GmbH(7) Germany
- --------------------------------------------------------------------------------
Yamanaka EP Corporation(8) Japan
- --------------------------------------------------------------------------------
- ---------------------
(5) Includes both direct and indirect subsidiaries.
(6) David Krall, Senior Vice President, General Counsel and Secretary of
EaglePicher Incorporated, owns 1 share.
(7) 45% owned by EaglePicher Technologies LLC.
(8) 35% owned by EaglePicher Technologies LLC.
SCHEDULE III
- ---------------------------------------------------
PRINCIPAL AMOUNT OF
INITIAL PURCHASER ORIGINAL NOTES
- ---------------------------------------------------
UBS Securities LLC $162,774,500
- ---------------------------------------------------
ABN AMRO Incorporated $ 30,000,000
- ---------------------------------------------------
Banc One Capital Markets, Inc. $ 25,433,500
- ---------------------------------------------------
Harris Nesbitt Corp. $ 17,803,500
- ---------------------------------------------------
PNC Capital Markets, Inc. $ 13,988,500
- ---------------------------------------------------
Total $250,000,000
- ---------------------------------------------------
EXHIBIT A-1
FORM OF OPINIONS(9) OF SQUIRE, SANDERS & DEMPSEY L.L.P.
The opinion of Squire, Sanders & Dempsey L.L.P., counsel for
the Issuers (capitalized terms not otherwise defined herein shall have the
meanings provided in the Purchase Agreement, to which this is an Exhibit), to be
delivered pursuant to Section 8(e) of the Purchase Agreement shall be to the
effect that:
(i) The Company is validly existing as a corporation and
in good standing as of the date of the certificate in the applicable
paragraph referred to above under the laws of the State of Ohio. The
Company has the corporate power and authority to conduct its business
as described in the Offering Memorandum.
(ii) Each of the Guarantors is validly existing as a
corporation, limited liability company or limited liability partnership
and in good standing as of the dates of the applicable certificates
specified in applicable paragraphs referred to above under the laws of
their respective jurisdictions of incorporation or organization, as the
case may be. Each Guarantor has the corporate power and authority to
conduct its business as described in the Offering Memorandum.
(iii) The Company has the corporate power to execute,
deliver and perform the Transaction Documents to which it is a party.
The execution, delivery and performance by the Company of the
Transaction Documents to which it is a party have been duly authorized
by all necessary corporate action of the Company.
(iv) Each of the Guarantors has the corporate power to
execute, deliver and perform the Purchase Agreement and each other
Transaction Document to which it is a party. The execution, delivery
and performance by each of the Guarantors of the Purchase Agreement and
each other Transaction Document to which it is a party have been duly
authorized by all necessary corporate action of such Guarantor.
(v) The Purchase Agreement has been duly executed and
delivered on behalf of the Company and the Guarantors party thereto.
- ------------------
(9) The opinion will contain customary assumptions, qualifications and
limitations of a type similar to such assumptions, qualifications and
limitations set forth in the legal opinion provided by Squire, Sanders &
Dempsey L.L.P, dated July 29, 2003 in connection with the commencement of
the Company's tender offer for its 9 3/8% Senior Subordinated Notes due
2008.
A-2-1
(vi) The Registration Rights Agreement has been duly
executed and delivered on behalf of the Company and the Guarantors
party thereto and constitutes a legal, valid and binding obligation of
the Company and each such Guarantor, enforceable against the Company
and each such Guarantor in accordance with its terms.
(vii) The Original Notes, when issued and authenticated in
the manner provided for in the Indenture and delivered against payment
of the consideration therefor in accordance with the Purchase Agreement
will constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their terms.
(viii) The Exchange Notes, when issued and authenticated in
the manner provided for in the Indenture, the Registration Rights
Agreement and the Exchange Offer will constitute legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms.
(ix) The Guarantees have been duly issued, executed and
delivered and (assuming the Original Notes have been duly authenticated
by the Trustee in accordance with the terms of the Indenture and
delivered to and paid for by the Initial Purchasers in accordance with
the terms of the Purchase Agreement) will constitute a legal, valid and
binding obligation of each Guarantor party thereto enforceable against
each such Guarantor in accordance with their terms.
(x) Each of the Guarantors has the corporate power to
issue, execute, deliver and perform the guarantee to be endorsed by it
on the Exchange Notes. The issuance, execution, delivery and
performance of the guarantees to be endorsed on the Exchange Notes have
been duly authorized by all necessary corporate action of the
Guarantors party thereto and, when issued as contemplated in the
Offering Memorandum, the Indenture and the Registration Rights
Agreement (assuming the Exchange Securities have been duly
authenticated by the Trustee in accordance with the terms of the
Exchange Offer and the Indenture and delivered to the tendering holders
of Original Notes in exchange for such Original Notes) will constitute
a legal, valid and binding obligation of each Guarantor party thereto
enforceable against each such Guarantor in accordance with their terms.
(xi) The Indenture has been duly executed and delivered on
behalf of the Company and the Guarantors party thereto and constitutes
a legal, valid and binding obligation of the Company and each such
Guarantor, enforceable against the Company and each such Guarantor in
accordance with its terms.
(xii) Neither the Company nor any Guarantor is, or, after
giving effect to the offering and sale of the Original Notes and the
application of the proceeds thereof as described in the Offering
Memorandum will be, an "investment company," as such term is defined in
the Investment Company Act.
A-2-2
(xiii) No approval or consent of, or registration or filing
with any federal governmental agency, the Secretary of State of the
State of Ohio or the Secretary of State of the State of New York is
required to be obtained or made by the Company or the Guarantors in
connection with the execution, delivery and performance on the date
hereof by the Company and the Guarantors of the Purchase Agreement or
the Transaction Documents or Guarantees to which they are a party, as
applicable.
(xiv) The execution, delivery and performance on the date
hereof by the Company and the Guarantors of the Purchase Agreement and
the Transaction Documents or Guarantees to which they are a party do
not (a) violate the Ohio General Corporation Law, (b) violate any
applicable provision of federal law or any applicable provision of New
York law, (c) breach or constitute a default under any agreement or
contract to which the Company or any Guarantor is a party listed on
Schedule I(10) attached hereto (except that we express no opinion as to
financial covenants in such agreement and contracts), or (d) violate
any court or administrative order, judgment or decree listed on
Schedule II attached hereto that names the Company or a Guarantor and
is specifically directed to it or any of its property.
(xv) Assuming (a) the accuracy of the representations and
warranties of the Company set forth in Section 5(a) of the Purchase
Agreement and of the Initial Purchasers set forth in Section 5(b) of
the Purchase Agreement, (b) the due performance by the Company of the
covenants and agreements set forth in Section 4 of the Purchase
Agreement, (c) the satisfaction without waiver of the conditions to the
obligations of the Initial Purchasers set forth in Section 8 of the
Purchase Agreement, (d) the Initial Purchasers' compliance with the
offering and transfer procedures described in the Offering Memorandum
under the captions entitled "Plan of distribution" and "Notice to
investors," (e) the accuracy of the representations and warranties made
in accordance with the Offering Memorandum by the Initial Purchasers
and (f) that each of the holders who purchase the Original Notes from
the Initial Purchasers is either a "qualified institutional buyer" as
defined in Rule 144A under the Securities Act or a person who is not a
"U.S. person" in offers and sales outside the United States made in
reliance on Regulation S under the Securities Act, it is not necessary
in connection with the offer, sale and delivery of the Original Notes
in the manner contemplated by the Purchase Agreement to register the
Original Notes under the Securities Act or to qualify the Indenture
under the Trust Indenture Act, it being understood that no opinion is
expressed as to any resale of Original Notes subsequent to the initial
resale thereof by the Initial Purchasers.
- ------------------
(10) Schedule I to contain a list of Material Contracts from Exhibit list to
10-K.
A-2-3
(xvi) Each of the Transaction Documents conforms in all
material respects to the descriptions thereof contained in the Offering
Memorandum.
(xvii) Based upon, subject to, and limited by the
assumptions and qualifications set forth herein, we have reviewed the
information in the Offering Memorandum under the caption " Certain
United States federal tax considerations" and we are of the opinion
that to the extent that such information constitutes matters of law or
legal conclusions, it is correct in all material respects as of the
date hereof.
(xviii) The issuance and sale of the Original Notes to the
Initial Purchasers and the use of proceeds of the issuance and sale of
the Original Notes, each in accordance with the Purchase Agreement, do
not violate Section 7 of the Exchange Act or the Margin Regulations.
(xix) The information in the Offering Memorandum under the
caption "Description of other indebtedness," to the extent that such
information constitutes matters of law or legal conclusions, has been
reviewed by us, and is correct in all material respects.
(xx) Except as set forth in the Offering Memorandum, there
is (a) no action, suit or proceeding before or by any court, arbitrator
or governmental agency, body or official, domestic or foreign, now
pending or, to the knowledge of such counsel, threatened or
contemplated, to which any of the Company or any Subsidiary is or may
be a party or to which the business, assets or property of such person
is or may be subject, (b) no statute, rule, regulation or order that
has been enacted, adopted or issued, or to the knowledge of such
counsel, that has been proposed by any governmental body or agency,
domestic or foreign, (c) no injunction, restraining order or order of
any nature by a federal or state court or foreign court of competent
jurisdiction to which any of the Company or any Subsidiary is or may be
subject that would reasonably be expected, individually or in the
aggregate, (1) to have a Material Adverse Effect or (2) to interfere
with or adversely affect the consummation of the offering of the
Original Notes, assuming, in the case of clause (a), such action, suit
or proceeding is determined adversely to the Issuers.
(xxi) To the best of our knowledge, there does not exist
any judgment, order, injunction or other restraint issued or filed with
respect to the transactions contemplated by the Transaction Documents
or the performance by the Company and any Subsidiary party thereto of
their respective obligations under the Transaction Documents.
(xxii) The statements under the captions "Legal matters" and
"Risk factors--RISKS RELATED TO OUR BUSINESS" in the Offering
Memorandum, insofar as such statements constitute summaries of matters
of federal law, or legal conclusions in respect thereof, are accurate
summaries thereof in all material respects.
A-2-4
Based solely upon the officers' certificates referred to in
certain paragraphs above and a review of this firm's litigation docket, we
hereby confirm to you that, to our knowledge, there are no actions, suits or
proceedings pending or overtly threatened in writing against the Company or any
Guarantor, or in which the Company or any Guarantor is a party, before any court
or governmental department, commission, board, bureau, agency or instrumentality
that questions the Purchase Agreement or any other Transaction Document or
Guarantee or any action taken or to be taken pursuant thereto, or that seek to
enjoin or otherwise prevent the consummation of the transactions contemplated by
the Purchase Agreement or any Transaction Documents or to recover in damages or
obtain other relief as a result thereof.
During the course of the preparation of the Offering
Memorandum, we participated in conferences with officers, directors and
employees of the Company and the Subsidiaries, the independent accountants who
examined the consolidated financial statements of the Company and the
Subsidiaries included in the Offering Memorandum, and you and your
representatives, at which the contents of the Offering Memorandum and related
matters were discussed. We have not undertaken to independently verify and are
not passing upon, and we do not assume responsibility for, the accuracy,
completeness or fairness of the information contained in the Offering
Memorandum. Based upon our participation and the discussions described above,
however, no facts have come to our attention that cause us to believe the
Offering Memorandum, as of its date or the date hereof, contained or contains an
untrue statement of material fact, or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that we have not requested to and do not make any comment with respect to the
financial statements and the notes thereto and the other financial, statistical
and accounting data included in the Offering Memorandum).
A-2-5