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EXHIBIT 4.4
EXECUTION VERSION
SECURITIES PURCHASE AGREEMENT
BY AND AMONG
UNITED INDUSTRIES CORPORATION,
THE GUARANTORS LISTED ON SCHEDULE II HERETO
AND
THE INITIAL PURCHASERS NAMED HEREIN
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DATED AS OF MARCH 20, 2003
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EXECUTION VERSION
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.....................................................................1
SECTION 1.2. Accounting Terms; Financial Statements..........................................4
ARTICLE II
ISSUE OF SECURITIES; PURCHASE AND SALE OF SECURITIES; RIGHTS OF
HOLDERS OF SECURITIES; OFFERING BY INITIAL PURCHASERS
SECTION 2.1. Issue of Securities.............................................................4
SECTION 2.2. Purchase, Sale and Delivery of Securities.......................................5
SECTION 2.3. Registration Rights of Holders of Securities....................................6
SECTION 2.4. Offering by the Initial Purchasers..............................................6
ARTICLE III
REPRESENTATIONS AND WARRANTIES; RESALE OF SECURITIES
SECTION 3.1. Representations and Warranties of the Company and the Guarantors................6
SECTION 3.2. Resale of Securities...........................................................16
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
SECTION 4.1. Conditions Precedent to Obligations of the Initial Purchasers..................16
SECTION 4.2. Conditions Precedent to Obligations of the Company and the Guarantors..........18
ARTICLE V
COVENANTS
SECTION 5.1. Covenants of the Company and the Guarantors....................................18
ARTICLE VI
FEES
SECTION 6.1. Costs, Expenses and Taxes......................................................21
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ARTICLE VII
INDEMNITY
SECTION 7.1. Indemnity......................................................................21
SECTION 7.2. Contribution...................................................................24
SECTION 7.3. Registration Rights Agreement..................................................24
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Survival of Provisions.........................................................24
SECTION 8.2. Termination....................................................................25
SECTION 8.3. No Waiver; Modifications in Writing............................................26
SECTION 8.4. Information Supplied by the Initial Purchasers.................................26
SECTION 8.5. Communications.................................................................26
SECTION 8.6. Execution in Counterparts......................................................27
SECTION 8.7. Successors.....................................................................27
SECTION 8.8. Governing Law..................................................................27
SECTION 8.9. Severability of Provisions.....................................................27
SECTION 8.10. Headings......................................................................27
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EXECUTION VERSION
SECURITIES PURCHASE AGREEMENT, dated as of March 20, 2003 (the
"Agreement"), among UNITED INDUSTRIES CORPORATION, a Delaware corporation (the
"Company"), the Guarantors listed on Schedule II attached to this Agreement and
BANC OF AMERICA SECURITIES LLC ("BAS"), CIBC WORLD MARKETS CORP. ("CIBC") and
GOLDMAN, SACHS & CO. ("Goldman") (each an "Initial Purchaser"; and,
collectively, the "Initial Purchasers").
In consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. As used in this Agreement, and unless the
context requires a different meaning, the following terms have the meanings
indicated:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder.
"Affiliate" of any specified Person means any other Person which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with such specified Person. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling", "controlled by" and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by agreement or
otherwise.
"Agreement" means this Agreement, as the same may be amended,
supplemented or modified in accordance with the terms hereof and in effect.
"Basic Documents" means, collectively, the Indenture, the Notes, the
Guarantees, the Registration Rights Agreement and this Agreement.
"Capital Stock" means, with respect to any Person, any and all shares
or other equivalents (however designated) of capital stock, partnership
interests or any other participation, right or other interest in the nature of
an equity interest in such Person or any option, warrant or other security
convertible into or exercisable for any of the foregoing.
"Closing" has the meaning provided therefor in Section 2.2 of this
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Act.
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"Commonly Controlled Entity" has the meaning provided therefor in
Section 3.1(z) of this Agreement.
"Company Delivered Documents" has the meaning provided therefor in
Section 3.1(e) of this Agreement.
"Default" means any event, act or condition which, with notice or
lapse of time or both, would constitute an Event of Default.
"Depositary" has the meaning provided therefor in Section 2.1 of this
Agreement.
"DTC Letter of Representations" has the meaning provided therefor in
Section 2.1 of this Agreement.
"Employee Benefit Plan" has the meaning provided therefor in Section
3.1(z) of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with all rules and regulations promulgated
pursuant thereto, as amended from time to time.
"Event of Default" means any event defined as an Event of Default in
the Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder.
"Exchange Notes" shall have the meaning provided therefor in the
Registration Rights Agreement.
"Exchange Securities" has the meaning provided therefor in Section 2.1
of this Agreement.
"Final Memorandum" has the meaning provided thereof in Section 2.1 of
this Agreement.
"Guarantee[s]" has the meaning provided therefor in Section 2.1 of
this Agreement.
"Guarantor" means each of the Company's subsidiaries listed in
Schedule II attached to this Agreement.
"Indemnified Party" has the meaning provided therefor in Section
7.1(c) of this Agreement.
"Indemnifying Party" has the meaning provided therefor in Section
7.1(c) of this Agreement.
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"Indenture" means the indenture, dated as of the date of the Closing,
between the Company, the Guarantors and State Street Bank and Trust Company, as
Trustee, under which the Securities will be issued.
"Initial Purchasers" has the meaning set forth in the introductory
paragraph to this Agreement.
"Intangible Property Rights" has the meaning provided therefor in
Section 3.1(q) of this Agreement.
"Lien" means, with respect to any property or assets of any Person,
any mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement (other than advance payments or customer deposits for goods and
services sold by the Company or any of its subsidiaries in the ordinary course
of business), security interest, lien, charge, easement, encumbrance (other than
a license or a lease), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with respect to
such property or assets (including without limitation, any Capitalized Lease
Obligations (as defined in the Indenture)), conditional sales, or other title
retention agreement having substantially the same economic effect as any of the
foregoing.
"Material Adverse Effect" means (i) a material adverse effect on the
business, assets, condition (financial or otherwise), results of operations or
properties of the Company and its subsidiaries considered as one entity or (ii)
a material adverse effect on the legality, validity, binding effect or
enforceability of this Agreement or the other Basic Documents.
"Memorandum" has the meaning provided therefor in Section 2.1 of this
Agreement.
"Notes" means the 9 7/8% Series C Senior Subordinated Notes due 2009
of the Company.
"Offering" means the offering of the Securities pursuant to the
Memorandum.
"Offering Materials" has the meaning provided therefor in Section
7.1(a) of this Agreement.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, joint-stock company, trust, unincorporated
organization or association or government (including any agency or political
subdivision thereof).
"PORTAL" means the Private Offering, Resales, and Trading through
Automated Linkages Market.
"Preliminary Memorandum" has the meaning provided therefor in Section
2.1 of this Agreement.
"Private Exchange Securities" has the meaning provided therefor in the
Registration Rights Agreement.
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"Proceeding" has the meaning provided therefor in Section 7.1(c) of
this Agreement.
"QIB" has the meaning provided therefor in Section 3.2 of this
Agreement.
"Registration Rights Agreement" means the registration rights
agreement among the Company, the Guarantors and the Initial Purchasers relating
to the Notes.
"Regulation S" means Regulation S under the Act.
"Securities" has the meaning provided therefor in Section 2.1 of this
Agreement.
"State" means each of the states of the United States, the District of
Columbia and the Commonwealth of Puerto Rico.
"State Commission" means any agency of any State having jurisdiction
to enforce such State's securities laws.
"Time of Purchase" has the meaning provided therefor in Section 2.2 of
this Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder.
"Trustee" means U.S. Bank National Association, as Trustee under the
Indenture.
SECTION 1.2. ACCOUNTING TERMS; FINANCIAL STATEMENTS. All accounting
terms used herein not expressly defined in this Agreement shall have the
respective meanings given to them in accordance with sound accounting practice.
The term "sound accounting practice" shall mean such accounting
practice as, in the opinion of the independent accountants regularly retained by
the Company, conforms at the time to generally accepted accounting principles in
the United States applied on a consistent basis except for changes with which
such accountants concur. All determinations to which accounting principles apply
shall be made in accordance with sound accounting practice.
ARTICLE II
ISSUE OF SECURITIES; PURCHASE AND SALE OF SECURITIES; RIGHTS OF
HOLDERS OF SECURITIES; OFFERING BY INITIAL PURCHASERS
SECTION 2.1. ISSUE OF SECURITIES. The Company has authorized the
issuance of $85,000,000 aggregate principal amount of the Notes which are to be
issued pursuant to the Indenture. Each Note will be substantially in the form of
the Note set forth as Exhibit A to the Indenture. Notes issued in book-entry
form will be issued in the name of Cede & Co., as nominee of The Depository
Trust Company (the "Depositary") pursuant to a letter of representations, to be
dated as of the date of the Closing (as defined in Section 2.2 of this
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Agreement) (the "DTC Letter of Representations"), among the Company, the
Guarantors, the Trustee and the Depositary.
The payment of principal of, premium and Additional Interest (as
defined in the Indenture), if any, and interest on the Notes and the Exchange
Notes will be fully and unconditionally guaranteed on a senior subordinated
basis, jointly and severally by the Guarantors, pursuant to their guarantees
(the "Guarantees") and subject to the terms and conditions set forth in the
Indenture and the exhibits and attachments thereto. The Notes and the Guarantees
attached thereto are herein collectively referred to as the "Securities"; and
the Exchange Notes and the Guarantees attached thereto are herein collectively
referred to as the "Exchange Securities."
The Securities will be offered and sold to the Initial Purchasers
without being registered under the Act, in reliance on exemptions therefrom.
In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum dated March 20, 2003 (the
"Preliminary Memorandum") and prepared a final offering memorandum dated March
20, 2003 (the "Final Memorandum" and, together with the Preliminary Memorandum,
the "Memorandum") setting forth or including a description of the terms of the
Securities, the terms of the offering, a description of the Company and its
subsidiaries and any material developments relating to the Company and its
subsidiaries occurring after the date of the most recent financial statements
included therein.
SECTION 2.2. PURCHASE, SALE AND DELIVERY OF SECURITIES. On the basis
of the representations, warranties, agreements and covenants herein contained
and subject to the terms and conditions herein set forth, the Company agrees
that it will sell to each Initial Purchaser, and each Initial Purchaser agrees,
acting severally and not jointly, that it will purchase from the Company at the
Time of Purchase, the principal amount of the Securities set forth opposite the
name of such Initial Purchaser on Schedule I hereto at a price equal to 99.25%
of the principal amount thereof.
The purchase, sale and delivery of the Securities will take place at a
closing (the "Closing") at the offices of Shearman & Sterling, 599 Lexington
Avenue, New York, New York 10022, at 10:00 A.M., New York time, on March 27,
2003, or such later date and time, if any, as the Initial Purchasers and the
Company shall agree. The time at which such Closing is concluded is herein
called the "Time of Purchase."
The Company at least 24 hours prior to the Closing shall deliver, or
cause to be delivered, to BAS for the account of the several Initial Purchasers
certificates for the Securities at the Closing against the irrevocable release
of a wire transfer of immediately available funds for the amount of the purchase
price therefor. The certificates for the Securities shall be in such
denominations and registered in the name of Cede & Co., as nominee of the
Depositary, pursuant to the DTC Letter of Representations, and shall be made
available for inspection on the business day preceding the Closing at a location
in New York City, as the Initial Purchasers may designate. Time shall be of the
essence, and delivery at the time and place specified in this Agreement is a
further condition to the obligations of the Initial Purchasers.
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SECTION 2.3. REGISTRATION RIGHTS OF HOLDERS OF SECURITIES. The Initial
Purchasers and their direct and indirect transferees of the Securities will have
such rights with respect to the registration thereof under the Act and
qualification of the Indenture under the Trust Indenture Act as are set forth in
the Registration Rights Agreement.
SECTION 2.4. OFFERING BY THE INITIAL PURCHASERS. The Initial
Purchasers propose to make an offering of the Securities at the price and upon
the terms set forth in the Final Memorandum, as soon as practicable after this
Agreement is entered into and as in the judgment of the Initial Purchasers is
advisable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES; RESALE OF SECURITIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
GUARANTORS. The Company and each of the Guarantors hereby jointly and severally
represent and warrant to and agree with each of the Initial Purchasers as
follows:
(a) FINAL MEMORANDUM. The Final Memorandum, as of its date does not,
and at the Time of Purchase will not, contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set
forth in this Section 3.1(a) do not apply to statements or omissions made
in reliance upon and in conformity with information relating to the Initial
Purchasers furnished to the Company in writing by the Initial Purchasers
expressly for use in the Final Memorandum or any amendment or supplement
thereto as set forth in Section 8.4 hereof. The statistical and
market-related data included in the Final Memorandum are based on or
derived from sources which the Company believes to be reliable and accurate
or represent the Company's good faith estimates that are made on the basis
of data derived from such sources. The Securities, the Exchange Securities,
the Indenture and the Registration Rights Agreement conform in all material
respects to the description thereof in the Final Memorandum.
(b) FINANCIAL STATEMENTS. The audited financial statements of the
Company set forth in the Final Memorandum are in accordance with the books
and records of the Company, fairly present in all material respects the
financial position, results of operations, stockholders' equity and cash
flows of the Company at the dates and for the periods to which they relate
and have been prepared in accordance with generally accepted accounting
principles consistently applied (except as otherwise stated therein); the
summary and selected financial data in the Final Memorandum present fairly
the financial information shown therein and have been prepared and compiled
on a basis consistent with audited financial statements included therein,
except as otherwise stated therein. PricewaterhouseCoopers, LLP which has
reported upon the audited financial statements included in the Final
Memorandum, is an independent public accounting firm as required by the Act
and the rules and regulations thereunder. The pro forma financial
statements and other pro forma financial information (including the notes
thereto)
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included in the Final Memorandum (A) have been prepared in accordance with
applicable requirements of Regulation S-X promulgated under the Exchange
Act (it being understood that the rules under Regulation S-X relative to
pro forma adjustments require the application of judgment regarding whether
such adjustments are directly attributable to the transaction, have a
continuing impact and are factually supportable and that the staff of the
Commission could disagree that certain of the adjustments meet these
requirements) and (B) have been properly computed on the bases described
therein; and the assumptions used therein are appropriate to give effect to
the transactions or circumstances referred to therein.
(c) EXISTENCE. Each of the Company and the Guarantors has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and has corporate
power and authority to own, lease and operate its properties and to conduct
its business as described in the Final Memorandum. The Company and each of
the Guarantors have made available to the Initial Purchasers complete and
correct copies of their respective certificates of incorporation and
by-laws. Each of the Company and its subsidiaries is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except for
such jurisdictions where the failure to so qualify or to be in good
standing would not, individually or in the aggregate, result in a Material
Adverse Effect. The only direct or indirect subsidiaries of the Company are
the Guarantors.
(d) CAPITAL STOCK. As of the Time of Purchase (after giving effect to
the Offering), the Company will have the capitalization as set forth in the
Final Memorandum, except for revolving credit borrowings since December 31,
2002 and, except as described in the Final Memorandum, all of the issued
and outstanding securities of the Company have been duly authorized and
validly issued and are fully paid and non-assessable and none of them have
been issued in violation of any preemptive or other right; and, except as
contemplated in this Agreement or the other agreements, instruments or
documents delivered in connection with the transactions contemplated hereby
or referred to in the Final Memorandum, the Company is not a party to or
bound by any contract, agreement or arrangement to issue, sell or otherwise
dispose of or redeem, purchase or otherwise acquire any Capital Stock or
any other security exercisable or exchangeable for or convertible into any
capital stock or any other security of the Company. Except as otherwise
disclosed in the Final Memorandum, all of the issued and outstanding
capital stock of each subsidiary of the Company has been duly authorized
and validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien or encumbrance.
(e) AUTHORITY. Each of the Company and the Guarantors has the
requisite corporate power and authority to enter into the Basic Documents
(to the extent a party thereto) and all other agreements, instruments and
documents executed and delivered by each of the Company and the Guarantors,
respectively, pursuant thereto (collectively, the "Company Delivered
Documents") and to carry out its obligations thereunder, including
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without limitation issuing the Securities in the manner and for the purpose
contemplated by this Agreement. The execution, delivery and performance of
the Company Delivered Documents and the consummation of the transactions
contemplated thereby have been duly authorized by each of the Company and
the Guarantors (to the extent a party thereto), and no other proceeding or
approval on the part of either the Company or any of the Guarantors is
necessary to authorize the execution and delivery of the Company Delivered
Documents or the performance of any of the transactions contemplated
thereby.
(f) PURCHASE AGREEMENT. This Agreement has been duly authorized,
executed and delivered by the Company and each of the Guarantors and
(assuming the due authorization, execution and delivery thereof by the
Initial Purchasers) is a valid and legally binding agreement of the Company
and each of the Guarantors, enforceable in accordance with its terms except
(i) that the enforcement hereof may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally, and to
general principles of equity and the discretion of the court before which
any proceeding therefor may be brought and (ii) as any rights to indemnity
or contribution hereunder may be limited by federal and state securities
laws and public policy considerations.
(g) INDENTURE. The Indenture has been duly authorized by the Company
and each of the Guarantors and, when executed and delivered by the Company
and each of the Guarantors (assuming the due authorization, execution and
delivery thereof by the Trustee), will constitute a valid and legally
binding agreement of the Company and each of the Guarantors, enforceable in
accordance with its terms except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity and the discretion of the court before which any proceeding therefor
may be brought.
(h) REGISTRATION RIGHTS AGREEMENT. The Registration Rights Agreement
has been duly authorized by the Company and each of the Guarantors and,
when executed and delivered by the Company and each of the Guarantors
(assuming the due authorization, execution and delivery thereof by the
Initial Purchasers), will constitute a valid and legally binding agreement
of the Company and each of the Guarantors, enforceable in accordance with
its terms except (i) that the enforcement thereof may be subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect relating to creditors'
rights generally, and to general principles of equity and the discretion of
the court before which any proceeding therefor may be brought and (ii) as
any rights to indemnity or contribution thereunder may be limited by
federal and state securities laws and public policy considerations.
(i) THE SECURITIES AND THE EXCHANGE SECURITIES. The Securities, the
Exchange Securities and the Private Exchange Securities have each been duly
authorized by the Company and the Guarantors and, when executed by the
Company and the Guarantors and authenticated by the Trustee in accordance
with the provisions of the Indenture and, in the case of the Securities,
delivered to and paid for by the Initial Purchasers in
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accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will constitute valid and legally binding
obligations of the Company and each of the Guarantors enforceable in
accordance with their terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and (ii) general principles of
equity and the discretion of the court before which any proceeding therefor
may be brought.
(j) OTHER DOCUMENTS. Each other Company Delivered Document executed
and delivered by the Company and each of the Guarantors (to the extent a
party thereto) has been duly and validly authorized, executed and delivered
by the Company and each of the Guarantors (to the extent a party thereto)
and constitutes or will constitute a valid and legally binding obligation
of the Company and each of the Guarantors (to the extent a party thereto),
enforceable in accordance with its terms, except (i) that the enforcement
thereof may be subject to bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and to general principles
of equity and the discretion of the court before which any proceeding
therefor may be brought and (ii) as any rights to indemnity and
contribution hereunder and thereunder may be limited by applicable law.
(k) SOLVENCY. Immediately after the consummation of the transactions
contemplated by this Agreement (including the use of proceeds from the sale
of the Securities at the Time of Purchase), the fair value and present fair
saleable value of the assets of the Company and each Guarantor will exceed
the sum of its stated liabilities and identified contingent liabilities;
neither the Company nor any Guarantor will be, after giving effect to the
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby (including the use of proceeds from
the sale of the Securities at the Time of Purchase), (i) left with
unreasonably small capital with which to carry on its business as it is
proposed to be conducted, (ii) unable to pay its debts (contingent or
otherwise) as they mature or (iii) otherwise insolvent.
(l) ABSENCE OF CERTAIN CHANGES. Subsequent to the date as of which
information is given in the Final Memorandum, except as described in the
Final Memorandum, there has not been (i) any event or condition that had a
Material Adverse Effect, (ii) any transaction entered into by the Company
or any of its subsidiaries, singly or in the aggregate, that had a Material
Adverse Effect, or (iii) any dividend or distribution of any kind declared,
paid or made by the Company or, except for dividends paid to the Company or
other subsidiaries, any of its subsidiaries on its Capital Stock.
(m) NO VIOLATION. Neither the Company nor any of its subsidiaries (i)
is in violation of its certificate of incorporation or by-laws or (ii) is
in default (or, with the giving of notice or lapse of time, would be in
default) under any material contract or agreement to which either the
Company or any of its subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company or
any of its subsidiaries is subject, except in the case of (ii) for such
defaults as would not, individually or in the aggregate, result in a
Material Adverse Effect. Neither the execution, delivery or performance of
any of the Company Delivered Documents by the
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Company and each of the Guarantors, as applicable, nor the consummation of
any of the transactions contemplated thereby (i) will violate or conflict
with the certificate of incorporation or by-laws of the Company or any of
its subsidiaries, (ii) will, as of the Time of Purchase, result in any
breach of or default under any provision of any material contract or
agreement to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any
property or assets of the Company or any of its subsidiaries is subject,
(iii) violates, is prohibited by or requires the Company or any of its
subsidiaries to obtain or make any consent, authorization, approval,
registration or filing under any statute, law, ordinance, regulation, rule,
judgment, decree or order of any court or governmental agency, board,
bureau, body, department or authority, or of any other person, presently in
effect or in effect at the Time of Purchase, (iv) will cause any
acceleration of maturity of any note, instrument or other indebtedness to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or with respect to which the
Company or any of its subsidiaries is an obligor or guarantor, or (v) will
result in the creation or imposition of any Lien upon or give to any other
person any interest or right (including any right of termination or
cancellation) in or with respect to the equity or any of the properties,
assets, business, agreements or contracts of the Company or any of its
subsidiaries, other than any violation, conflict, breach, default,
acceleration or Lien which, individually or in the aggregate, will not
result in a Material Adverse Effect. Neither the Company nor any Guarantor
is a party to any material agreement other than those filed as exhibits to
the Company's Annual Report on Form 10-K for the year ended December 31,
2002, filed with the Commission on March 20, 2003.
(n) TITLE AND CONDITION OF PROPERTIES AND ASSETS. As of the date
hereof, each of the Company and each of its subsidiaries has good and valid
title to all of its owned assets and properties which are material to the
business of the Company and its subsidiaries, taken as a whole and as of
the Time of Purchase, the Company and each of its subsidiaries will have
good and valid title to all of its assets and properties which are material
to the business of the Company and its subsidiaries, taken as a whole
(except as sold or otherwise disposed of in the ordinary course of
business), subject to no Liens other than Permitted Liens (as defined in
the Indenture).
(o) LEASED PROPERTY. Each lease of real property or personal property
that is material to the business of the Company and its subsidiaries, taken
as a whole, is in full force and effect and is valid and enforceable in
accordance with its terms except that (i) that the enforcement hereof may
be subject to bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and to general principles of
equity and the discretion of the court before which any proceeding may be
brought and (ii) as any rights to indemnity or contribution hereunder may
be limited by federal and state securities laws and public policy
considerations. There is not under any such lease any default by the
Company or any of its subsidiaries or any event that with notice or lapse
of time or both would constitute such a default by the Company or any of
its subsidiaries and with respect to which the Company or any of its
subsidiaries has not taken adequate steps to prevent such default from
occurring, except for any such default that would not result in a Material
Adverse Effect; all of such events, if any, and the aforesaid steps taken
by the
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Company or any of its subsidiaries are set forth in the Final Memorandum.
To the Company's or any of its subsidiaries' knowledge, there is not under
any such lease any default by any other party thereto or any event that
with notice or lapse of time or both would constitute such a default
thereunder by such party, which default would result in a Material Adverse
Effect.
(p) LITIGATION. Except as set forth in the Final Memorandum, there are
no actions, suits, proceedings or investigations, either at law or in
equity, or before any commission or other administrative authority in any
United States jurisdiction, of any kind now pending or, to the best of the
Company's or any of its subsidiaries' knowledge, threatened involving the
Company or any of its subsidiaries that (i) seeks to restrain, enjoin,
prevent the consummation of or otherwise challenge the issuance and sale of
the Securities by the Company or any of the Guarantors or any of the other
transactions contemplated hereby, (ii) questions the legality or validity
of any such transactions or seeks to recover damages or obtain other relief
in connection with any such transactions or (iii) which individually or in
the aggregate, would result in a Material Adverse Effect.
(q) INTANGIBLE PROPERTY RIGHTS. The Final Memorandum accurately
describes: (i) all material copyrights, patents, trademarks, service marks
and trade names, and all registrations or pending applications thereof in
the United States (collectively "Intangible Property Rights") owned by the
Company and its subsidiaries; and (ii) all material licenses and similar
agreements under which the Company or any of its subsidiaries uses
Intangible Property Rights of any third party. Except as otherwise
described in the Final Memorandum, (i) the Company and each of its
subsidiaries owns, is licensed or otherwise has sufficient rights to use
the material Intangible Property Rights and the Technology (as defined
below) necessary for the conduct of its business free and clear of all
Liens other than Permitted Liens; (ii) there are no pending claims
challenging the validity, enforceability or ownership of such Intangible
Property Rights or Technology or the Company's or any of its subsidiaries'
right to use such Intangible Property Rights or Technology; (iii) the
material issued patents, registered trademarks and registered copyrights in
the United States under such Intangible Property Rights are valid and
subsisting and, to the Company's or any of its subsidiaries' knowledge,
none of the claims of said issued patents, registered trademarks or
copyrights is now being infringed by others; (iv) there are no material
licenses or sublicense agreements now in effect regarding the Company's or
any of its subsidiaries' or to the Company's or any of its subsidiaries'
knowledge, any third party's use of such Intangible Property Rights or
Technology; and (v) to the Company's or any of its subsidiaries' knowledge,
neither the Company nor any of its subsidiaries is infringing or
misappropriating any U.S. or foreign patent, trademark, copyright owned by
third parties and no claim is now pending or is threatened to such effect,
except for any of the foregoing which does not have a Material Adverse
Effect. "Technology" means the material patterns, plans, designs,
confidential information, research data, trade secrets and other
proprietary know-how, formulae and manufacturing processes, operating
manuals, drawings, technology, manuals, data, records, procedures, research
and development records, and all licenses or other rights to use any of the
foregoing of others used in connection with the business.
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(r) COMPLIANCE WITH LAWS, ETC. Except as disclosed in the Final
Memorandum and except for those failures to have, to be in full force and
effect, to file, retain and maintain and to comply, in each case, would not
result in a Material Adverse Effect, (i) with respect to the business of
the Company and its subsidiaries, the Company and each of its subsidiaries
have all licenses, permits or franchises issued by any United States or
foreign, federal, state, provincial, municipal or local authority or
regulatory body and other governmental certificates, authorizations and
approvals (collectively "Licenses and Permits") required by every United
States or foreign, federal, state, provincial, municipal and local
governmental or regulatory body for the operation of the business and the
use of their properties as presently operated or used; (ii) all such
Licenses and Permits are in full force and effect and no action, claim or
proceeding is pending, nor to the knowledge of the Company or any of its
subsidiaries is threatened, to suspend, revoke, revise, limit, restrict or
terminate any of such Licenses and Permits or declare any such License or
Permit invalid; (iii) the Company and each of its subsidiaries has filed
all necessary reports and maintained and retained all necessary records
pertaining to such Licenses and Permits; and (iv) the Company and each of
its subsidiaries has otherwise complied with all of the laws, ordinances,
regulations and orders applicable to their existence, financial condition,
operations, properties or business, and neither the Company nor any of its
subsidiaries has received any notice to the contrary.
(s) GOVERNMENTAL AUTHORIZATIONS AND REGULATIONS. Except as set forth
in the Final Memorandum, no authorization, consent, approval, license,
qualification or formal exemption from, nor any filing, declaration or
registration with, any court, governmental agency, securities exchange or
any regulatory authority is required in connection with the execution,
delivery or performance by the Company or the Guarantors, as applicable, of
this Agreement or any of the other Basic Documents or any of the
transactions contemplated thereby, except (i) as may be required under
state securities or "blue sky" laws or the laws of any foreign jurisdiction
in connection with the offer and sale of the Securities, or (ii) which
would not result in (individually or in the aggregate) a Material Adverse
Effect. All such authorizations, consents, approvals, licenses,
qualifications, exemptions, filings, declarations and registrations set
forth in the Final Memorandum (other than as disclosed therein) which are
required to have been obtained by the date hereof have been obtained or
made, as the case may be, and are in full force and effect and not the
subject of any pending or, to the knowledge of the Company or any of its
subsidiaries, threatened attack by appeal or direct proceeding or
otherwise.
(t) LABOR CONTROVERSIES. Except as disclosed in the Final Memorandum
and except for those following which would not result in a Material Adverse
Effect (i) no employees of the Company or any of its subsidiaries are
currently represented by a labor union or labor organization, no labor
union or labor organization has been certified or recognized as a
representative of any such employees, and neither the Company nor any of
its subsidiaries has any obligation under any collective bargaining
agreement or other agreement with any labor union or labor organization
that, in any way, affects the Company or any of its subsidiaries, (ii)
there is no unfair labor practice complaint against the Company or any of
its subsidiaries pending before the National Labor Relations Board, (iii)
there is no labor strike, dispute, slowdown or stoppage actually pending or
to
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the knowledge of the Company or any of its subsidiaries threatened against
or affecting the Company or any of its subsidiaries, (iv) neither the
Company nor any of its subsidiaries has experienced any strike, work
stoppage or other labor difficulty during the past three years, and (v)
neither the Company nor any of its subsidiaries is a party to, or subject
to, a collective bargaining agreement, and no collective bargaining
agreement relating to employees of the Company or any of its subsidiaries
is currently being negotiated.
(u) EMPLOYMENT CONTRACTS. Except as described in the Final Memorandum,
there are no material employment contracts between the Company or any of
its subsidiaries, on the one hand, and employees, on the other hand, other
than contracts representing the standard terms and conditions prevailing
between the Company or any of its subsidiaries, on the one hand, and their
respective employees, on the other.
(v) FINDERS; BROKERS. Except as described in the Final Memorandum,
there are no claims for commissions or fees from any investment banker,
broker, finder, consultant or intermediary hired by or on behalf of the
Company or any of its subsidiaries in connection with the transactions
contemplated by this Agreement, based on any arrangement or agreement.
(w) ENVIRONMENTAL MATTERS. Except as disclosed in the Final Memorandum
and except as would not individually or in the aggregate, result in a
Material Adverse Effect, (A) the Company and each of its subsidiaries is in
compliance with and not subject to liability under all applicable
Environmental Laws, (B) each of the Company and each of its subsidiaries
has made all filings and provided all notices required under any applicable
Environmental Law, and has all permits, authorizations and approvals
required under any applicable Environmental Laws and is in compliance with
their requirements, (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 best knowledge of the Company and each of its subsidiaries,
threatened against the Company or any of its 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 of
its subsidiaries, (E) neither the Company nor any of its 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 owned, leased or operated by the Company or any
of its subsidiaries is (i) listed or proposed for listing on the National
Priorities List under CERCLA or (ii) listed in the Comprehensive
Environmental Response, Compensation, Liability Information System List
promulgated pursuant to CERCLA, or any comparable list maintained by any
state or local governmental authority; (G) there are no events, activities,
conditions, or occurrences which could reasonably be expected to prevent
the Company or any of its subsidiaries from complying with, or result in
liability under, applicable Environmental Laws.
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For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any federal, state, local or
municipal statute, law, rule, regulation, ordinance, code, policy or rule
of common law and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or judgment
binding on the Company or any of its subsidiaries relating to pollution or
protection of the environment (including, without limitation, ambient air,
indoor air, surface water, groundwater, land surface or subsurface strata),
natural resources, or health or safety or any pollutant, contaminant,
waste, constituent, chemical, material or substance, that is subject to
regulation thereunder.
(x) TAX MATTERS. Each of Company and its subsidiaries has filed all
material federal, state and foreign income and franchise tax returns
required to have been filed and has paid all material taxes required to be
paid by any of them and, if due and payable, any related or similar
material assessment, fine or penalty levied against any of them, except, in
each case, as may be being contested in good faith and by appropriate
proceedings. The Company has made adequate charges, accruals and reserves
in the applicable financial statements referred to in Section 1(b) above in
respect of all federal, state and foreign income and franchise taxes for
all periods as to which the tax liability of the Company or any of its
subsidiaries has not been finally determined.
(y) INVESTMENT COMPANY. The Company and the Guarantors are not and
immediately after the Time of Purchase none of them will be, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act") or, to the Company's or any of its
subsidiaries' knowledge, a company "controlled" by a company required to be
registered under the Investment Company Act.
(z) ERISA. No Reportable Event (as defined in Section 4043 of ERISA)
has occurred during the three-year period prior to the date on which this
representation is made with respect to any Employee Benefit Plan, and the
Company has complied in all material respects with the applicable
provisions of ERISA and the Code in connection with the Employee Benefit
Plans. No Employee Benefit Plan of the Company or plan of any Commonly
Controlled Entity is subject to Title IV of ERISA and the Company has no
director interest, actual or contingent liability under Title IV of ERISA.
Neither the Company, nor any Commonly Controlled Entity (as defined below)
has incurred or is reasonably likely to incur any withdrawal liability with
respect to any Multiemployer Plan (as defined in Section 4001(a)(3) of
ERISA). No such Multiemployer Plan is in reorganization or insolvent. There
are no material liabilities of the Company or any Commonly Controlled
Entity for post-retirement benefits to be provided to their current and
former employees under Employee Benefit Plans which are welfare benefit
plans (as described in Section 3(1) of ERISA) ("Welfare Benefit Plans"),
and all Welfare Benefit Plans of the Company and welfare plans of its
Commonly Controlled Entities are in substantial compliance with the
continuation coverage requirements of Section 498OB of the Code and Part 6
of Title I of ERISA. With respect to each Employee Benefit Plan, no event
has occurred and there exists no conditions or set of circumstances in
connection with which the Company or any of its subsidiaries is reasonably
likely to be subject to material liability under the Code, ERISA or any
other applicable law, except for liability
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for benefit claims and funding obligations payable in the ordinary course.
"Commonly Controlled Entity" means any person or entity that, together with
any Company, is treated as a single employer under Section 414(b), (c), (m)
or (o) of the Code. "Employee Benefit Plan" means an employee benefit plan,
as defined in Section 3(3) of ERISA, which is maintained or contributed to
by an Company or to which the Company may have liability.
(aa) INSURANCE. The Company and each of its subsidiaries carry
insurance (including self insurance) in such amounts and covering such
risks as in its reasonable determination is adequate for the conduct of its
business and the value of its properties.
(bb) THE OFFERING. Assuming the accuracy of the Initial Purchasers'
representations and warranties in Section 3.2 hereof and the performance of
their covenants in this Agreement, no form of general solicitation or
general advertising (as those terms are used in Regulation D under the Act)
was used by the Company, the Guarantors, their respective Affiliates or any
Person acting on their behalf in connection with the offer and sale of the
Securities; neither the Company, the Guarantors, nor any Person authorized
to act on their behalf has, either directly or indirectly, sold or offered
for sale any of the Securities or any other similar security of the Company
or any Guarantor to, or solicited any offers to buy any thereof from, or
has otherwise approached or negotiated in respect thereof with, any Person
or Persons other than with or through the Initial Purchasers; and the
Company and each of the Guarantors agree that neither the Company, the
Guarantors, nor any Person acting on their behalf will sell or offer for
sale any Securities to, or solicit any offers to buy any Securities from,
or otherwise approach or negotiate in respect thereof with, any Person or
Persons so as thereby to bring the issuance or sale of any of the
Securities within the provisions of Section 5 of the Act. Assuming the
accuracy of the Initial Purchasers' representations and warranties set
forth in Section 3.2 hereof, and the due performance by the Initial
Purchasers of the covenants and agreements set forth in Section 3.2 hereof,
the offer and sale of the Securities to the Initial Purchasers in the
manner contemplated by this Agreement and the Final Memorandum does not
require registration under the Act and the Indenture does not require
qualification under the Trust Indenture Act. The Securities are eligible
for resale pursuant to Rule 144A and no securities of the Company or the
Guarantors are of the same class (within the meaning of Rule 144A under the
Act) as the Securities and listed on a national securities exchange
registered under Section 6 of the Exchange Act, or quoted in a U.S.
automated interdealer quotation system. Neither the Company nor any
Guarantor has taken, nor will it take, directly or indirectly, any action
designed to, or that might be reasonably expected to, cause or result in
stabilization or manipulation of the price of the Securities. Neither of
the Company nor any of its Affiliates or any person acting on its or their
behalf (other than the Initial Purchasers) has engaged in any directed
selling efforts (as that term is defined in Regulation S with respect to
the Securities and the Company and their respective Affiliates and any
person acting on its or their behalf (other than the Initial Purchasers)
have acted in accordance with the offering restrictions requirements of
Regulation S.
(cc) ACCOUNTING SYSTEM. The Company maintains a system of accounting
controls sufficient to provide reasonable assurances that (i) transactions
are executed in
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accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles as
applied in the United States and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
SECTION 3.2. RESALE OF SECURITIES. Each of the Initial Purchasers
represents and warrants (as to itself only) that it is a "qualified
institutional buyer" as defined in Rule 144A of the Act ("QIB"). Each of the
Initial Purchasers agrees with the Company (as to itself only) that (a) it has
not and will not solicit offers for, or offer or sell, the Securities by any
form of general solicitation or general advertising (as those terms are used in
Regulation D under the Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Act; and (b) it has and will solicit offers
for the Securities only from, and will offer the Securities only to (A) in the
case of offers inside the United States, Persons whom the Initial Purchasers
reasonably believe 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 transactions under
Rule 144A and (B) in the case of offers outside the United States, to Persons
other than U.S. Persons ("foreign purchasers," which term shall include dealers
or other professional fiduciaries in the United States acting on a discretionary
basis for foreign beneficial owners (other than an estate or trust)); provided,
however, that, in the case of this clause (B), in purchasing such Securities
such Persons are deemed to have represented and agreed as provided under the
caption "Notice to Investors" contained in the Final Memorandum.
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
SECTION 4.1. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE INITIAL
PURCHASERS. The obligation of each Initial Purchaser to purchase the Securities
to be purchased at the Closing is subject, at the Time of Purchase, to the
satisfaction of the following conditions:
(a) At the Time of Purchase, the Initial Purchasers shall have
received the opinions in form and substance reasonably satisfactory to
counsel for the Initial Purchasers, dated as of the Time of Purchase and
addressed to the Initial Purchasers, of (i) Kirkland & Ellis, counsel for
the Company and Sylorr Plant Corporation, in form and substance as set
forth on Exhibit A hereto, (ii) Thompson Coburn LLP, counsel to Schultz
Company and Ground Zero, Inc., in form and substance as set forth on
Exhibit B hereto, and (iii) from Reinhard Boerner Van Deuren S.C., counsel
to WPC Brands, Inc., in form and substance as set forth on Exhibit C
hereto.
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(b) The Initial Purchasers shall have received an opinion, addressed
to the Initial Purchasers in form and substance satisfactory to the Initial
Purchasers and dated the Time of Purchase, of Shearman & Sterling, counsel
to the Initial Purchasers.
(c) The Initial Purchasers shall have received from
PricewaterhouseCoopers LLP a comfort letter or letters dated the date
hereof and of the Closing in form and substance reasonably satisfactory to
counsel to the Initial Purchasers.
(d) The representations and warranties made by the Company and each of
the Guarantors herein shall be true and correct in all material respects
(except for changes expressly provided for in this Agreement) on and as of
the Time of Purchase with the same effect as though such representations
and warranties had been made on and as of the Time of Purchase, the Company
and each of the Guarantors shall have complied in all material respects
with all agreements as set forth in or contemplated hereunder and in the
Basic Documents required to be performed by it at or prior to the Time of
Purchase and the Company and each of the Guarantors shall have furnished to
each Initial Purchaser a certificate, dated the Time of Purchase, to such
effect.
(e) Subsequent to the date of the Final Memorandum, (i) there shall
not have been any change which has a Material Adverse Effect, (ii) neither
the Company nor any of its subsidiaries shall have taken any voluntary,
affirmative action to conduct their business other than in the ordinary
course and (iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of
the possible change, in the rating accorded any securities of either the
Company or any of its subsidiaries by any "nationally recognized
statistical rating organization" as such term is defined for purposes of
Rule 436 under the Securities Act..
(f) At the Time of Purchase and after giving effect to the
consummation of the transactions contemplated by this Agreement and the
Basic Documents, there shall exist no Default or Event of Default.
(g) The purchase of and payment for the Securities by the Initial
Purchasers hereunder shall not be prohibited or enjoined (temporarily or
permanently) by any applicable law or governmental regulation.
(h) At the Time of Purchase, the Initial Purchasers shall have
received a certificate, dated the Time of Purchase, from the Company and
each of the Guarantors, stating that the conditions specified in Sections
4.1(d), (e), (f) and (g) have been satisfied or duly waived at the Time of
Purchase.
(i) Each of the Basic Documents shall have been executed and delivered
by all the respective parties thereto and shall be in full force and
effect.
(j) All proceedings required in order to issue the Securities and
consummate the transactions contemplated by this Agreement and all
documents and papers relating thereto shall be reasonably satisfactory to
the Initial Purchasers and counsel to the Initial Purchasers. The Initial
Purchasers and counsel to the Initial Purchasers shall have
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received copies of such papers and documents of the Company and each of the
Guarantors as they may reasonably request in connection therewith, all in
form and substance reasonably satisfactory to them.
(k) The sale of the Securities hereunder shall not have been enjoined
(temporarily or permanently) at the Time of Purchase.
(l) At the Closing, the Securities will be eligible for clearance and
settlement through the facilities of the Depositary.
(m) At or prior to the Closing, Amendment #10 (in the form provided to
the Initial Purchasers and counsel to the Initial Purchasers) to the Senior
Credit Facility by and among the Company, a syndicate of lenders, Bank of
America, N.A. and Morgan Stanley Senior Funding, Inc., as co-arrangers and
Bank of America, N.A., Morgan Stanley Senior Funding, Inc. and Canadian
Imperial Bank of Commerce as agents to the lenders, shall be in full force
and effect.
On or before the Closing, the Initial Purchasers and counsel to the
Initial Purchasers shall have received such further documents, opinions,
certificates and schedules or other instruments relating to the business,
corporate, legal and financial affairs of the Company as they may reasonably
request.
SECTION 4.2. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY AND
THE GUARANTORS. The obligations of the Company and the Guarantors to deliver the
Securities shall be subject to the following:
(a) The accuracy as of the date hereof and at the Time of Purchase (as
if made on and as of the Time of Purchase) of the representations and
warranties of the Initial Purchasers herein (delivery of the purchase price
by the Initial Purchasers for the Securities being an affirmation by the
Initial Purchasers of the accuracy of their representations and
warranties).
(b) At or prior to the Closing, Amendment #10 (in the form provided to
the Initial purchasers and counsel to the Initial Purchasers) to the Senior
Credit Facility by and among the Company, a syndicate of lenders, Bank of
America, N.A. and Morgan Stanley Senior Funding, Inc., as co-arrangers and
Bank of America, N.A., Morgan Stanley Senior Funding, Inc. and Canadian
Imperial Bank of Commerce as agents to the lenders, shall be in full force
and effect.
ARTICLE V
COVENANTS
SECTION 5.1. COVENANTS OF THE COMPANY AND THE GUARANTORS. The Company
and each of the Guarantors jointly and severally covenant and agree with each of
the Initial Purchasers that:
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(a) The Company and each of the Guarantors will not amend or
supplement the Final Memorandum or any amendment or supplement thereto of
which the Initial Purchasers shall not previously have been advised and
furnished a copy for a reasonable period of time prior to the proposed
amendment or supplement and as to which the Initial Purchasers shall not
have given their consent, which consent shall not be unreasonably withheld.
The Company will promptly, upon the reasonable request of the Initial
Purchasers or counsel to the Initial Purchasers, make any amendments or
supplements to the Final Memorandum that may be necessary or advisable in
connection with the resale of the Securities by the Initial Purchasers.
(b) The Company and each of the Guarantors will cooperate with the
Initial Purchasers in arranging for the qualification of the Securities for
offering and sale under the securities or "blue sky" laws of such
jurisdictions as the Initial Purchasers may designate and will continue
such qualifications in effect for as long as may be reasonably necessary to
complete the resale of the Securities; PROVIDED, HOWEVER, that in
connection therewith, neither the Company nor any Guarantor shall be
required to qualify as a foreign corporation, to take any acts which would
require it to qualify to do business or to execute a general consent to
service of process in any jurisdiction or subject itself to taxation in
excess of a nominal dollar amount in any such jurisdiction where it is not
then so subject.
(c) If, at any time prior to the completion of the distribution by the
Initial Purchasers of the Securities, any event occurs or information
becomes known as a result of which the Final Memorandum as then amended or
supplemented would include any untrue statement of a material fact, or omit
to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
if for any other reason it is necessary at any time to amend or supplement
the Final Memorandum to comply with applicable law, the Company will
promptly notify the Initial Purchasers thereof (who thereafter will not use
such Final Memorandum until appropriately amended or supplemented) and will
prepare, at the expense of the Company, an amendment or supplement to the
Final Memorandum that corrects such statement or omission or effects such
compliance.
(d) The Company will, without charge, provide to the Initial
Purchasers and to counsel to the Initial Purchasers as many copies of the
Preliminary and Final Memorandum or any amendment or supplement thereto as
the Initial Purchasers may reasonably request.
(e) The Company and the Guarantors will apply the net proceeds from
the sale of the Securities as set forth under "Use of Proceeds" in the
Final Memorandum.
(f) For and during the period ending on the date no Securities are
outstanding, the Company will furnish to the Initial Purchasers copies of
all reports and other communications (financial or otherwise) furnished by
the Company or the Guarantors to the Trustee or the holders of the
Securities and, promptly after available, copies of any reports or
financial statements furnished to or filed by the Company or the Guarantors
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with the Commission or any national securities exchange on which any class
of securities of the Company or the Guarantors may be listed.
(g) Prior to the Time of Purchase, the Company will furnish to the
Initial Purchasers, as soon as they have been prepared in final form, a
copy of any unaudited interim financial statements of the Company for any
period subsequent to the period covered by the most recent financial
statements appearing in the Final Memorandum.
(h) The Company and its Affiliates will not sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any "security"
(as defined in the Act) which could be integrated with the sale of the
Securities in a manner which would require the registration under the Act
of the Securities.
(i) Neither the Company nor any of the Guarantors will solicit any
offer to buy or offer to sell the Securities by means of any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Act) or in any manner involving a public offering
within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Notes remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the Act
and not saleable in full under Rule 144 under the Act (or any successor
provision), the Company and Guarantors will make available, upon request,
to any seller of such Securities the information specified in Rule
144A(d)(4) under the Act, unless the Company and the Guarantors are then
subject to Section 13 or 15(d) of the Exchange Act.
(k) The Company will use its best efforts to (i) permit the Notes to
be included for quotation on PORTAL and (ii) permit the Notes to be
eligible for clearance and settlement through the Depositary.
(l) The Company and each of the Guarantors will do and perform all
things required to be done and performed by it under this Agreement and the
other Basic Documents prior to or after the Closing, subject to the
qualifications and limitations in the writing that expresses such
obligations, and to satisfy all conditions precedent on their part to the
obligations of the Initial Purchasers under this Agreement to purchase and
accept delivery of the Securities.
(m) In connection with Securities offered and sold in an offshore
transaction (as defined in Regulation S), neither the Company nor the
Guarantors will register any transfer of such Securities not made in
accordance with the provisions of Regulation S and will not, except in
accordance with the provisions of Regulation S, if applicable, issue any
such Securities in the form of definitive securities.
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ARTICLE VI
FEES
SECTION 6.1. COSTS, EXPENSES AND TAXES. The Company and each of the
Guarantors jointly and severally agree to pay all costs and expenses incident to
the performance of their obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 8.2 hereof, including, but not limited to, all costs and
expenses incident to (i) the Company's cost of preparation, printing,
reproduction, execution and delivery of this Agreement, each of the other Basic
Documents, any amendment or supplement to or modification of any of the
foregoing and any and all other documents furnished pursuant hereto or thereto
or in connection herewith or therewith, (ii) any costs of printing the
Preliminary and Final Memorandum and any amendment or supplement thereto, any
other marketing related materials, (iii) any costs of all arrangements relating
to the delivery including postage, etc. to the Initial Purchasers of copies of
the foregoing documents, (iv) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company, (v)
preparation (including printing), issuance and delivery to the Initial
Purchasers of the Securities, (vi) the qualification of the Securities under
state securities and "blue sky" laws, including filing fees, word processing and
reproduction costs of any "blue sky" memoranda and fees (not to exceed $15,000)
and disbursements of counsel to the Initial Purchasers relating thereto, (vii)
all expenses in connection with any meetings with prospective investors in the
Securities, (viii) fees and expenses of the Trustee, including fees and expenses
of counsel to the Trustee, (ix) all out-of pocket expenses incurred by the
Initial Purchasers in connection with the proposed offering and sale of the
Securities including, but not limited to, reasonable fees and disbursements of
counsel, (x) all expenses and listing fees incurred in connection with the
application for quotation of the Securities on PORTAL, (xi) any fees charged by
investment rating agencies for the rating of the Securities, (xii) all fees and
expenses (including reasonable fees and expenses of counsel) of the Company and
the Guarantors in connection with the approval of the Securities by the
Depositary for "book-entry" transfer, and (xiii) except as limited by Article
VII, all costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses), if any, of the successful enforcement of this
Agreement, the Securities or any other agreement furnished pursuant hereto or
thereto or in connection herewith or therewith. In addition, the Company shall
pay any and all stamp, transfer and other similar taxes payable or determined to
be payable in connection with the execution and delivery of this Agreement, any
other Basic Document or the issuance of the Securities, and shall save and hold
each Initial Purchaser harmless from and against any and all liabilities with
respect to or resulting from any delay in paying, or omission to pay, such
taxes.
ARTICLE VII
INDEMNITY
SECTION 7.1. INDEMNITY.
(a) INDEMNIFICATION BY THE COMPANY AND THE GUARANTORS. The Company and
each of the Guarantors jointly and severally agree and covenant to hold harmless
and indemnify
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each of the Initial Purchasers and any Affiliates thereof (including any
director, officer, employee, agent or controlling Person of any of the
foregoing) from and against any losses, claims, damages, liabilities and
expenses (including expenses of investigation) to which such Initial Purchaser
and its Affiliates may become subject arising out of or based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Memorandum and any amendments or supplements thereto, the Basic Documents or any
application or other documents filed with the Commission or any State Commission
(collectively, the "Offering Materials") or arising out of or based upon the
omission or alleged omission to state in any of the Offering Materials a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company and the Guarantors
shall not be liable under this paragraph (a) to the extent that such losses,
claims, damages or liabilities arose out of or are based upon an untrue
statement or omission made in any of the documents referred to in this paragraph
(a) in reliance upon and in conformity with the information relating to the
Initial Purchasers furnished in writing by such Initial Purchasers for inclusion
therein provided, further, that the Company and the Guarantors shall not be
liable under this paragraph (a) to the extent such losses, claims, damages or
liabilities arose out of or are based upon an untrue statement or omission made
in any Memorandum that is corrected in any amendment or supplement thereto if
the person asserting such loss, claim, damage or liability purchased Securities
from an Initial Purchaser in reliance on such Memorandum but was not given the
amendment or supplement thereto on or prior to the confirmation of the sale of
such Securities and such amended or supplemented Memorandum was delivered by the
Company to such Initial Purchaser prior to the confirmation of such sale. The
Company and each of the Guarantors jointly and severally agree to reimburse each
Initial Purchaser for any reasonable legal and other expenses as they are
incurred by it in connection with investigating, preparing to defend or
defending any lawsuits, claims or other proceedings or investigations arising in
any manner out of or in connection with such Person being an Initial Purchaser;
provided that if the Company or any Guarantor reimburses an Initial Purchaser
hereunder for any expenses incurred in connection with a lawsuit, claim or other
proceeding for which indemnification is sought, such Initial Purchaser hereby
agrees to refund such reimbursement of expenses to the extent that the losses,
claims, damages or liabilities are not entitled to indemnification hereunder.
The Company and each of the Guarantors jointly and severally further agree that
the indemnification, contribution and reimbursement commitments set forth in
this Article VII shall apply whether or not an Initial Purchaser is a formal
party to any such lawsuits, claims or other proceedings. The indemnity,
contribution and expense reimbursement obligations of the Company and each of
the Guarantors under this Article VII shall be in addition to any liability the
Company or such Guarantor may otherwise have. The Company and each of the
Guarantors hereby acknowledge that the only information that the Initial
Purchasers have furnished to them is the information set forth in Section 8.4 of
this Agreement.
(b) INDEMNIFICATION BY THE INITIAL PURCHASERS. Each of the Initial
Purchasers agrees and covenants, severally and not jointly, to hold harmless and
indemnify the Company, the Guarantors and any Affiliates thereof (including any
director, officer, employee, agent or controlling Person of any of the
foregoing) from and against any losses, claims, damages, liabilities and
expenses insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement of any material fact contained in
the Offering Materials, or upon the omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to
22
<Page>
the extent, that such untrue statement or omission was made in reliance upon and
in conformity with the information relating to such Initial Purchaser furnished
in writing by such Initial Purchaser for inclusion therein. The indemnity,
contribution and expense reimbursement obligations of the Initial Purchasers
under this Article VII shall be in addition to any liability the Initial
Purchasers may otherwise have.
(c) PROCEDURE. If any Person shall be entitled to indemnity hereunder
(each an "Indemnified Party"), such Indemnified Party shall give prompt written
notice to the party or parties from which such indemnity is sought (each an
"Indemnifying Party") of the commencement of any action, suit, investigation or
proceeding, governmental or otherwise (a "Proceeding"), with respect to which
such Indemnified Party seeks indemnification or contribution pursuant hereto;
provided, however, that the failure so to notify the Indemnifying Parties shall
not relieve the Indemnifying Parties from any obligation or liability except to
the extent that the Indemnifying Parties have been prejudiced materially by such
failure. The Indemnifying Parties shall have the right, exercisable by giving
written notice to an Indemnified Party promptly after the receipt of written
notice from such Indemnified Party of such Proceeding, to assume, at the
Indemnifying Parties' expense, the defense of any such Proceeding, with counsel
reasonably satisfactory to such Indemnified Party; provided, however, that an
Indemnified Party or parties (if more than one such Indemnified Party is named
in any Proceeding) shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or parties
unless: (1) the Indemnifying Parties agree to pay such fees and expenses; or (2)
the Indemnifying Parties fail promptly to assume the defense of such Proceeding
or fail to employ counsel reasonably satisfactory to such Indemnified Party or
parties; or (3) the named parties to any such Proceeding (including any
impleaded parties) include both such Indemnified Party or parties and the
Indemnifying Party or an Affiliate of the Indemnifying Party and such
Indemnified Parties, and the Indemnified Parties shall have been advised in
writing by counsel that there may be one or more legal defenses available to
such Indemnified Party or parties that are different from or additional to those
available to the Indemnifying Parties, in which case, if such Indemnified Party
or parties notifies the Indemnifying Parties in writing that it elects to employ
separate counsel at the expense of the Indemnifying Parties, the Indemnifying
Parties shall not have the right to assume the defense thereof and such counsel
shall be at the expense of the Indemnifying Parties, it being understood,
however, that, unless there exists a conflict among Indemnified Parties, the
Indemnifying Parties shall not, in connection with any one such Proceeding or
separate but substantially similar or related Proceedings in the same
jurisdiction, arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (together with appropriate local counsel) at any time for such
Indemnified Party or Parties, or for fees and expenses that are not reasonable.
No Indemnified Party or Parties will settle any Proceeding without the consent
of the Indemnifying Party or Parties (but such consent shall not be unreasonably
withheld). No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened Proceeding
in respect of which any Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability or claims that are the subject of such Proceeding.
23
<Page>
SECTION 7.2. CONTRIBUTION. If for any reason the indemnification
provided for in Section 7.1 of this Agreement is unavailable to an Indemnified
Party, or insufficient to hold it harmless, in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each applicable
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect not only the relative benefits received by the
Indemnifying Party on the one hand and the Indemnified Party on the other, but
also the relative fault of the Indemnifying and Indemnified Parties in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Indemnifying and
Indemnified Parties shall be deemed to be in the same proportion as the total
proceeds from the offering of the Securities (net of the Initial Purchasers'
discounts and commissions but before deducting expenses) received by the Company
and the Guarantors bear to the total discounts and commissions received by each
Initial Purchaser. The relative fault of the Indemnifying and Indemnified
Parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Indemnifying or Indemnified Parties and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages and liabilities referred to above shall be deemed to include any
legal or other fees or expenses incurred by such party in connection with
investigating or defending any such claim.
The Company and the Guarantors and each of the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to the
immediately preceding paragraph were determined pro rata or per capita or by any
other method of allocation which does not take into account the equitable
considerations referred to in such paragraph. Notwithstanding any other
provision of this Section 7.2, no Initial Purchaser shall be obligated to make
contributions hereunder that in the aggregate exceed the total discounts,
commissions and other compensation received by such Initial Purchaser under this
Agreement, less the aggregate amount of any damages that such Initial Purchaser
has otherwise been required to pay by reason of the untrue or alleged untrue
statements or the omissions or alleged omissions to state a material fact. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
SECTION 7.3. REGISTRATION RIGHTS AGREEMENT. Notwithstanding anything
to the contrary in this Article 7, the indemnification and contribution
provisions of the Registration Rights Agreement shall govern any claim with
respect thereto.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. SURVIVAL OF PROVISIONS. The representations, warranties
and covenants of the Company, the Guarantors and the Initial Purchasers made
herein, the indemnity
24
<Page>
and contribution agreements contained herein and each of the provisions of
Articles VI, VII and VIII shall remain operative and in full force and effect
regardless of (a) any investigation made by or on behalf of the Company, any
Guarantor, any Initial Purchaser or any Indemnified Party, (b) acceptance of any
of the Securities and payment therefor, (c) any termination of this Agreement
other than pursuant to Section 8.2, or (d) disposition of the Securities by the
Initial Purchasers whether by redemption, exchange, sale or otherwise. With
respect to any termination of this Agreement pursuant to Section 8.2, this
Agreement and the obligations contemplated hereby shall terminate without
liability to any party, and no party shall have any continuing obligation
hereunder or liability to any other party hereto, except that each of the
provisions of Articles VI, VII, and VIII shall remain operative and in full
force and effect regardless of any termination pursuant thereto.
SECTION 8.2. TERMINATION. (a) This Agreement may be terminated in the
sole discretion of the Initial Purchasers by notice to the Company given prior
to the Time of Purchase in the event that the Company or the Guarantors shall
have failed, refused or been unable to perform all obligations and satisfy all
conditions on their part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Closing:
(i) the Company or any Guarantor shall have sustained any loss or
interference with respect to its businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance,
or from any strike, labor dispute, slow down or work stoppage or any legal
or governmental proceeding, which loss or interference, in the sole
judgment of the Initial Purchasers, has a Material Adverse Effect, or there
shall have been, in the sole judgment of the Initial Purchasers, any event
or development that, individually or in the aggregate, has a Material
Adverse Effect (including without limitation a Change of Control (as
defined in the Indenture)), except in each case as described in the Final
Memorandum (exclusive of any amendment or supplement thereto);
(ii) trading in securities of the Company or in securities generally
on the New York Stock Exchange, American Stock Exchange or the Nasdaq
National Market shall have been suspended or minimum or maximum prices
shall have been established on any such exchange or market;
(iii) a banking moratorium shall have been declared by New York or
United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international calamity
or emergency, or (C) any material change in the financial markets of the
United States which, in the case of (A), (B) or (C) above and in the sole
judgment of the Initial Purchasers, makes it impracticable or inadvisable
to proceed with the offering or the delivery of the Securities as
contemplated by the Final Memorandum; or
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<Page>
(v) any securities of the Company shall have been downgraded or
placed on any "watch list" for possible downgrading by any nationally
recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 8.2 shall
be without liability of any party to any other party except as provided in
Section 8.1 hereof.
SECTION 8.3. NO WAIVER; MODIFICATIONS IN WRITING. No failure or delay
on the part of the Company, any Guarantor or any Initial Purchaser in exercising
any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy. The remedies provided for herein are cumulative and are not exclusive
of any remedies that may be available to the Company, any Guarantor or any
Initial Purchaser at law or in equity or otherwise. No waiver of or consent to
any departure by the Company or any Guarantor from any provision of this
Agreement shall be effective unless signed in writing by the party hereto
entitled to the benefit thereof, provided that notice of any such waiver shall
be given to each party hereto as set forth below. Except as otherwise provided
herein, no amendment, modification or termination of any provision of this
Agreement shall be effective unless signed in writing by or on behalf of each of
the Company, each Guarantor and each Initial Purchaser. Any amendment,
supplement or modification of or to any provision of this Agreement, any waiver
of any provision of this Agreement, and any consent to any departure by the
Company or any Guarantor from the terms of any provision of this Agreement,
shall be effective only in the specific instance and for the specific purpose
for which made or given. Except where notice is specifically required by this
Agreement, no notice to or demand on the Company or any Guarantor in any case
shall entitle the Company or any Guarantor to any other or further notice or
demand in similar or other circumstances.
SECTION 8.4. INFORMATION SUPPLIED BY THE INITIAL PURCHASERS. The
statements set forth and in the sixth paragraph under the heading "Plan of
Distribution" in the Final Memorandum (to the extent such statements relate to
the Initial Purchasers) constitute the only information furnished by the Initial
Purchasers to the Company for the purposes of Sections 3.1(a) and 7.1(a) and (b)
hereof.
SECTION 8.5. COMMUNICATIONS. All notices, demands and other
communications provided for hereunder shall be in writing, and, (a) if to the
Initial Purchasers, shall be given by registered or certified mail, return
receipt requested, telex, telegram, telecopy, courier service or personal
delivery, addressed to Banc of America Securities LLC, 9 West 57th Street, New
York, NY 10019, Facsimile: (212) 847-5038; Attention: High Yield Capital
Markets, with a copy to Shearman & Sterling, 599 Lexington Avenue, New York, NY
10022, Facsimile: (212) 848-7179, Attention: Andrew R. Schleider, Esq. and (b)
if to the Company or the Guarantors, shall be given by similar means to United
Industries Corporation, 8825 Page Boulevard, P.O. Box 15842, St. Louis, Missouri
63114, Attn: Chief Financial Officer, with copies to Kirkland & Ellis, 200 East
Randolph Drive, Chicago, IL 60601, Attention: Carter W. Emerson, P.C. and to
Thomas H. Lee Company, 75 State Street, 26th Floor, Boston, MA 02109, Attention:
C. Hunter Boll. In each case notices, demands and other communications shall be
deemed given when received.
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SECTION 8.6. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same Agreement.
SECTION 8.7. SUCCESSORS. This Agreement shall inure to the benefit of
and be binding upon the Initial Purchasers, the Company, the Guarantors and
their respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
Person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such Persons and for the benefit of no other Person except that (i)
the indemnities of the Company and the Guarantors contained in Section 7.1(a) of
this Agreement shall also be for the benefit of the directors, officers,
employees and agents of the Initial Purchasers and any Person or Persons who
control the Initial Purchasers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act and (ii) the indemnities of the Initial
Purchasers contained in Section 7.1(b) of this Agreement shall also be for the
benefit of the Company and the Guarantors and their respective directors,
officers, employees and agents and any Person or Persons who control the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act.
No purchaser of Securities from the Initial Purchasers will be deemed a
successor because of such purchase.
SECTION 8.8. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
SECTION 8.9. SEVERABILITY OF PROVISIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 8.10. HEADINGS. The Article and Section headings and Table of
Contents used or contained in this Agreement are for convenience of reference
only and shall not affect the construction of this Agreement.
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<Page>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
UNITED INDUSTRIES CORPORATION
By:
-----------------------------
Name:
Title:
SCHULTZ COMPANY
By:
-----------------------------
Name:
Title:
GROUND ZERO, INC.
By:
-----------------------------
Name:
Title:
SYLORR PLANT CORPORATION
By:
-----------------------------
Name:
Title:
WPC BRANDS, INC.
By:
-----------------------------
Name:
Title:
28
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BANC OF AMERICA SECURITIES LLC
By:
-----------------------------
Name:
Title:
CIBC WORLD MARKETS CORP.
By:
-----------------------------
Name:
Title:
GOLDMAN, SACHS & CO.
By:
-----------------------------
(Goldman, Sachs & Co.)
29
<Page>
EXECUTION VERSION
SCHEDULE I
<Table>
<Caption>
Principal Amount at
Initial Purchaser Maturity of Notes
- ----------------- --------------------
Banc of America Securities LLC $ 34,000,000
CIBC World Markets Corp. 34,000,000
Goldman, Sachs & Co. 17,000,000
------------
Total $ 85,000,000
------------
</Table>
<Page>
SCHEDULE II
LIST OF GUARANTORS
Guarantor Jurisdiction of Incorporation
- --------- -----------------------------
Schultz Company Missouri
Ground Zero, Inc. Missouri
Sylorr Plant Corporation Delaware
WPC Brands, Inc. Wisconsin
<Page>
EXECUTION VERSION
Exhibit A
Form of Opinion of Kirkland & Ellis
<Page>
Exhibit B
Form of Opinion of Thompson Coburn LLP
1. Each of the Guarantors has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation. Each of the Guarantors has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Offering Memorandum and to enter into and perform its obligations under each of
the Purchase Agreement, the Registration Rights Agreement, the Indenture, the
Securities, and the Exchange Securities.
2. Each of the Guarantors is duly qualified as a foreign corporation
to transact business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except for such jurisdictions where the
failure to so qualify or to be in good standing would not, individually or in
the aggregate, result in a Material Adverse Effect.
3. All of the issued and outstanding capital stock of each of the
Guarantors has been duly authorized and validly issued, is fully paid and
nonassessable and is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance or,
to the best of our knowledge, any pending or threatened claim.
4. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or regulatory
authority or agency is required for each Guarantor's execution, delivery and
performance of the Purchase Agreement, the Registration Rights Agreement, the
Guarantees or the Indenture, or the issuance and delivery of the Securities and
the Exchange Securities or consummation of the transactions contemplated thereby
and by the Offering Memorandum, except such as have been obtained or made by the
Guarantors and are in full force and effect.
5. Each of the Purchase Agreement, the Registration Rights Agreement,
the Indenture and the Guarantees of the Notes and the Exchange Notes has been
duly authorized, executed and delivered by each of the Guarantors.
6. The Guarantees of the Notes and the Exchange Notes have been duly
authorized by each Guarantor for issuance and sale pursuant to the Purchase
Agreement.
7. The execution and delivery of each of the Purchase Agreement, the
Registration Rights Agreement, the Notes, the Exchange Notes, the Guarantees of
the Notes and the Exchange Notes and the Indenture (collectively, the
"Transaction Documents") by each Guarantor and the performance by each Guarantor
of its obligations under the Transaction Documents, as applicable, and
consummation of the transactions contemplated thereby and by the Offering
Memorandum (i) will not result in any violation of the provisions of the charter
or by-laws of the Guarantors, respectfully, and (ii) will not result in the
creation of or imposition of any lien, charge or encumbrance upon any property
or assets of the Guarantors under, and will not result in any violation of, any
law, administrative regulation or administrative or court decree generally
applicable to the Guarantors.
<Page>
8. The choice of New York law stipulated to govern is a valid and
effective choice of law under the laws of the state of incorporation of each
Guarantor and should be enforced to the extent the parties have provided therein
by a court of such state or a federal court sitting in such state and applying
the law of such state, except to the extent that New York law contravenes the
public policy of such state, and except insofar as federal laws may apply with
respect to certain issues. Moreover, although the Transaction Documents contain
choice of law provisions which state that they are to be governed by and
construed in accordance with the law of the State of New York, in the event that
the laws of the state of incorporation of each Guarantor were applied to govern
the Transaction Documents, the Transaction Documents will not violate any
applicable usury laws of the state of incorporation of each Guarantor.
<Page>
Exhibit C
Form of Opinion of Reinhart Boerner Van Dueren, S.C.
1. Each of the Guarantors has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation. Each of the Guarantors has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Offering Memorandum and to enter into and perform its obligations under each of
the Purchase Agreement, the Registration Rights Agreement, the Indenture, the
Securities, and the Exchange Securities.
2. Each of the Guarantors is duly qualified as a foreign corporation
to transact business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except for such jurisdictions where the
failure to so qualify or to be in good standing would not, individually or in
the aggregate, result in a Material Adverse Effect.
3. All of the issued and outstanding capital stock of each of the
Guarantors has been duly authorized and validly issued, is fully paid and
nonassessable and is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance or,
to the best of our knowledge, any pending or threatened claim.
4. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or regulatory
authority or agency is required for each Guarantor's execution, delivery and
performance of the Purchase Agreement, the Registration Rights Agreement, the
Guarantees or the Indenture, or the issuance and delivery of the Securities and
the Exchange Securities or consummation of the transactions contemplated thereby
and by the Offering Memorandum, except such as have been obtained or made by the
Guarantors and are in full force and effect.
5. Each of the Purchase Agreement, the Registration Rights Agreement,
the Indenture and the Guarantees of the Notes and the Exchange Notes has been
duly authorized, executed and delivered by each of the Guarantors.
6. The Guarantees of the Notes and the Exchange Notes have been duly
authorized by each Guarantor for issuance and sale pursuant to the Purchase
Agreement.
7. The execution and delivery of each of the Purchase Agreement, the
Registration Rights Agreement, the Notes, the Exchange Notes, the Guarantees of
the Notes and the Exchange Notes and the Indenture (collectively, the
"Transaction Documents") by each Guarantor and the performance by each Guarantor
of its obligations under the Transaction Documents, as applicable, and
consummation of the transactions contemplated thereby and by the Offering
Memorandum (i) will not result in any violation of the provisions of the charter
or by-laws of the Guarantors, respectfully, and (ii) will not result in the
creation of or imposition of any lien, charge or encumbrance upon any property
or assets of the Guarantors under, and will not result in any violation of, any
law, administrative regulation or administrative or court decree generally
applicable to the Guarantors.
<Page>
8. The choice of New York law stipulated to govern is a valid and
effective choice of law under the laws of the state of incorporation of each
Guarantor and should be enforced to the extent the parties have provided therein
by a court of such state or a federal court sitting in such state and applying
the law of such state, except to the extent that New York law contravenes the
public policy of such state, and except insofar as federal laws may apply with
respect to certain issues. Moreover, although the Transaction Documents contain
choice of law provisions which state that they are to be governed by and
construed in accordance with the law of the State of New York, in the event that
the laws of the state of incorporation of each Guarantor were applied to govern
the Transaction Documents, the Transaction Documents will not violate any
applicable usury laws of the state of incorporation of each Guarantor.