Exhibit 10.1
EXCHANGE AND PURCHASE AGREEMENT
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This Exchange and Purchase Agreement (this "Agreement") is made and
entered into as of this 22nd day of March, 2007, by and between __________ (the
"Holder"), and Greatbatch, Inc., a Delaware corporation (the "Company").
RECITALS
WHEREAS, the Holder currently holds $__________ principal amount of the
Company's 2 1/4% Convertible Subordinated Debentures due 2013 (the "Outstanding
Notes") issued pursuant to the Indenture, dated as of May 28, 2003, between the
Company and Manufacturers and Traders Trust Company;
WHEREAS, the Holder desires to exchange the Outstanding Notes for an
equal principal amount of the Company's 2 1/4% Convertible Subordinated
Debentures due 2013 (the "Exchange Notes") to be issued pursuant to the
Indenture (as defined below) on the terms and conditions set forth in this
Agreement (the "Note Exchange");
WHEREAS, the Company desires to issue to the Holder $__________
principal amount of Exchange Notes in exchange for the Outstanding Notes in the
Note Exchange;
WHEREAS, the Company desires to issue and sell to the Holder
$__________ principal amount of the Company's 2 1/4% Convertible Subordinated
Debentures due 2013, which shall have identical terms (except for principal
amount) as those set forth in the Exchange Notes (the "Additional Notes," and
together with the Exchange Notes, the "New Notes") at a purchase price of $950
per $1,000 principal amount of Additional Notes;
WHEREAS, the Holder desires to purchase $__________ principal amount of
Additional Notes at a purchase price of $950 per $1,000 principal amount of
Additional Notes on the terms and conditions set forth in this Agreement (the
"Sale of Additional Notes" and together with the Note Exchange, the
"Transaction");
WHEREAS, the New Notes will be issued pursuant to the Indenture, to be
entered into by the Company and the Trustee named therein (the "Trustee"),
substantially in the form of Exhibit A hereto (the "Indenture");
WHEREAS, in connection with the issuance of the New Notes the Company
will agree to provide the Holder registration rights pursuant to the
Registration Rights Agreement, to be entered into by the Company and the Holder,
the other holders of Outstanding Notes exchanging such notes for New Notes and
any other purchasers of the New Notes to be issued by the Company, if any (the
"Registration Rights Agreement"), substantially in the form of Exhibit B hereto;
NOW, THEREFORE, in consideration of the premises and the agreements set
forth below, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
Exchange
Section 1.1 Exchange and Sale of the New Notes.
(a) Upon the terms and subject to the conditions of this
Agreement, at the Closing (as defined herein), the Company shall issue and
exchange to the Holder, and the Holder agrees to accept from the Company,
$__________ in aggregate principal amount of Exchange Notes, together with all
accrued and unpaid interest paid in cash on the Outstanding Notes to, but
excluding, the Closing Date, for $__________ aggregate principal amount of
Outstanding Notes.
(b) Upon the terms and subject to the conditions of this
Agreement, at the Closing, the Company shall sell to the Holder, and the Holder
agrees to purchase from the Company, the $__________ aggregate principal amount
of Additional Notes at a purchase price of 95% of the principal amount thereof
(the "Purchase Price").
Section 1.2 Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") is anticipated to take place on the third
business day after the date hereof at the offices of the Company, 9645 Wehrle
Drive, Clarence, New York, 14031, or on such other date and at such other place
as the parties may agree in writing (the "Closing Date"). At the Closing, (i)
the Holder shall deliver or cause to be delivered to the Company (a) all of such
Holder's right, title and interest in and to all of the Outstanding Notes, and
all documentation related thereto, and whatever documents of conveyance or
transfer may be necessary or desirable to transfer to and confirm in the Company
all right, title and interest in and to the Outstanding Notes and (b) the
Purchase Price, and (ii) the Company shall issue to the Holder the New Notes and
pay to the Holder in cash by wire transfer of immediately available funds an
amount equal to the accrued and unpaid interest on the Holder's Outstanding
Notes to, but excluding, the day of the Closing, provided, however, that the
parties acknowledge that the issuance of the Exchange Notes to some or all of
the Holders may be delayed due to procedures and mechanics within the system of
the Depository Trust Company ("DTC") and that such delay will not be a default
under this Agreement so long as (i) the Company is using its best efforts to
effect the issuance of one or more global notes representing the Exchange Notes,
(ii) such delay is no longer than 3 business days and (iii) interest shall
accrue on such Exchange Notes from the date of the Indenture.
Section 1.3 Conditions to Closing. (i) The obligation of the Holder
hereunder to consummate the transactions contemplated hereby at the Closing is
subject to the satisfaction, at or before the Closing Date, of each of the
following conditions, provided that these conditions are for the Holder's sole
benefit and may be waived by the Holder at any time in its sole discretion by
providing the Company with prior written notice thereof:
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(a) The Company shall have executed and delivered this Agreement
to Holder;
(b) The Company and the Trustee shall have executed and delivered
the Indenture;
(c) The Company shall have executed and delivered the New Notes
in the aggregate principal amount set forth in Section 1.1;
(d) The Company shall have executed and delivered the
Registration Rights Agreement to Holder;
(e) The Company shall have submitted an additional share listing
application for the shares of Common Stock issuable upon conversion of the New
Notes with the New York Stock Exchange and the shares of Common Stock issuable
upon conversion of the New Notes shall have been approved by the New York Stock
Exchange for listing prior to the Closing;
(f) The Company shall have delivered to the Holder and Piper
Jaffray & Co. a certificate of the Company, dated the Closing Date, executed by
the secretary of the Company certifying in such capacity and on behalf of the
Company (i) as to the incumbency and signature of the officer of the Company who
executed this Agreement and the New Notes; and (ii) as to the adoption of
resolutions of the board of directors of the Company which are in full force and
effect on the Closing Date, authorizing (x) the execution and delivery of this
Agreement, the Indenture, the Registration Rights Agreement and the New Notes,
and (y) the performance of the obligations of the Company hereunder and
thereunder;
(g) The Company shall have delivered to the Holder and Piper
Jaffray & Co. a certificate of the Chief Executive Officer or Chief Financial
Officer of the Company, dated the Closing Date, to the effect that the
representations and warranties of the Company in this Agreement are true and
correct on and as of the Closing Date with the same effect as if made on the
Closing Date and that the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(h) Simultaneously with the Closing, the Company shall issue an
aggregate principal amount of New Notes that, together with notes issued to
Other Holders (as defined below) is not less than $130,000,000, of which at
least $50,000,000 aggregate principal amount shall be Exchange Notes;
(i) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall have been no suspension or material
limitation of trading in the Common Stock on The New York Stock Exchange;
(j) The New Notes shall have been approved for trading on The
PORTAL Market of the National Association of Securities Dealers, Inc., subject
only to notice of issuance at or prior to the time of purchase;
(k) The Company shall have obtained a Committee on Uniform
Securities Identification Procedures number (CUSIP number) for the New Notes;
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(l) The New Notes satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act; and
(m) The Company shall have delivered to Holder and Piper Jaffray
& Co. the opinion of Hodgson Russ LLP, dated as of the Closing Date, in
substantially the form of Exhibit C attached hereto.
(ii) The obligation of the Company hereunder to consummate the
transactions contemplated hereby at the Closing is subject to the satisfaction,
at or before the Closing Date, of each of the following conditions, provided
that these conditions are for the Company's sole benefit and may be waived by
the Company at any time in its sole discretion by providing the Holder with
prior written notice thereof:
(a) The Holder shall have executed and delivered to the Company
this Agreement;
(b) The Holder shall have executed and delivered to the Company
the Registration Rights Agreement; and
(c) The Holder shall have delivered, or caused to be delivered,
to the Company the Outstanding Notes being exchanged pursuant to this Agreement
and the Purchase Price in accordance with the written instructions of the
Company.
Section 1.4 Exchange and Sale of Additional Notes. Simultaneously with
the Closing, the Company (i) shall enter into one or more agreements
substantially identical to this Agreement (the "Other Agreements") with one or
more holders (the "Other Holders") of Outstanding Notes to exchange Exchange
Notes with one or more Other Holders for Outstanding Notes, subject to the terms
of the Indenture, in an aggregate principal amount that, together with the
Exchange Notes issued pursuant to this Agreement, is not less than $50,000,000,
and (ii) may issue Additional Notes pursuant to one or more Other Agreements,
subject to the terms of the Indenture, with one or more Other Holders and/or any
new Holders, so long as the purchase price for any such Additional Notes is not
less than $950 per $1,000 principal amount of Additional Notes.
ARTICLE II
Representations and Warranties of the Holder
The Holder hereby makes the following representations and warranties,
each of which is true and correct on the date hereof and shall survive the
Closing Date and the transactions contemplated hereby to the extent set forth
herein.
Section 2.1 Existence and Power.
(a) The Holder is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has the
power, authority and capacity to execute and deliver this Agreement, to perform
its obligations hereunder, and to consummate the transactions contemplated
hereby.
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(b) The execution of this Agreement by the Holder and the
consummation by the Holder of the transactions contemplated hereby do not and
will not constitute or result in a breach, violation, conflict or default under
any note, bond, mortgage, deed, indenture, lien, instrument, contract,
agreement, lease or license to which the Holder is a party, whether written or
oral, express or implied, or any statute, law, ordinance, decree, order,
injunction, rule, directive, judgment or regulation of any court, administrative
or regulatory body, governmental authority, arbitrator, mediator or similar body
on the part of the Holder or on the part of any other party thereto or cause the
acceleration or termination of any obligation or right of the Holder, except for
such breaches, conflicts, defaults, rights or violations which would not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the ability of the Holder to perform its obligations
hereunder.
Section 2.2 Valid and Enforceable Agreement; Authorization. This
Agreement has been duly executed and delivered by the Holder and constitutes a
legal, valid and binding obligation of the Holder, enforceable against the
Holder in accordance with its terms, except that such enforcement may be subject
to (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally, and (b)
general principles of equity.
Section 2.3 Title to Outstanding Notes. The Holder is a beneficial
owner of and has the investment power, including the power to dispose of, and
has good and valid title to, the Outstanding Notes being exchanged by such
Holder hereby, free and clear of any mortgage, lien, pledge, charge, security
interest, encumbrance, title retention agreement, option, equity or other
adverse claim thereto. The Holder has not, in whole or in part, (i) assigned,
transferred, hypothecated, pledged or otherwise disposed of the Outstanding
Notes or its rights in such Outstanding Notes being exchanged or redeemed by
such Holder hereby, or (ii) given any person or entity any transfer order, power
of attorney or other authority of any nature whatsoever with respect to such
Outstanding Notes.
Section 2.4 Investment Decision. The Holder is either (i) a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended (the "Securities Act") or (ii) an "accredited investor" within
the meaning of Rule 501 of Regulation D under the Securities Act, and in either
case was not organized for the purpose of acquiring the New Notes or the shares
of the Company's common stock (the "Common Stock"), $0.001 par value per share,
into which the New Notes may be converted (the "Underlying Common Stock"). The
Holder (or its authorized representative) is familiar with the Company's
objectives and business plan, has had the opportunity to review the Company's
filings currently filed with the Securities and Exchange Commission (the "SEC"),
including, without limitation, the Company's Annual Report on Form 10-K filed on
February 27, 2007, the Company's Definitive Proxy Statement filed on April 27,
2006, and the Company's Current Reports on Form 8-K filed on July 5, 2006,
August 8, 2006, October 20, 2006, November 28, 2006 and February 28, 2007 (all
of such filings currently filed with the SEC referred to, collectively, as the
"SEC Documents"). The Holder has reviewed copies of each of the Indenture and
the Registration Rights Agreement, including copies of each of the Indenture and
Registration Rights Agreement marked to show the differences between such
documents and the respective indenture and registration rights agreement related
to the Outstanding Notes, and has had an opportunity to ask questions of the
Company and to obtain from representatives of the Company such information as is
necessary to determine the changes reflected in each such document, including
the changes to the terms of the New Notes compared with the Outstanding Notes.
The Holder has had such opportunity to ask questions of the Company and its
representative and to obtain from representatives of the Company such
information as is necessary to permit it to evaluate the merits and risks of its
investment in the Company and has independently, without reliance upon any
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representatives of the Company and based on such information as the Holder
deemed appropriate, made its own analysis and decision to enter into this
Agreement. The Holder has had the opportunity to consult with its accounting,
tax, financial and legal advisors to be able to evaluate the risks involved in
the exchange of the Outstanding Notes and/or the purchase of new Notes pursuant
hereto and to make an informed investment decision with respect to such exchange
and/or purchase. The Holder acknowledges that for U.S. federal income tax
purposes, the Exchange Notes and the New Notes are intended by the Company to be
contingent payment debt instruments within the meaning of Treasury Regulations
Section 1.1275-4. Each Holder must report consistently with such
characterization, unless it discloses a contrary position on a statement
attached to the Holder's timely filed U.S. federal income tax return for the
taxable year that includes the Closing Date. The Holder acknowledges that the
Company is relying on the truth and accuracy of the foregoing representations
and warranties in the offering of the New Notes to the Holder without having
first registered the New Notes or the Underlying Common Stock under the
Securities Act.
Section 2.5 Purchase Entirely for Own Account. The Holder is acquiring
the New Notes for its own account and not towards, or for resale in connection
with, the public sale or distribution thereof, except pursuant to sales
registered or exempted under the Securities Act; provided, however that by
making the representations herein, the Holder does not agree to hold any of such
New Notes for any minimum or other specific term and reserves the right to
dispose of such New Notes or the Underlying Common Stock at any time in
accordance with or pursuant to a registration statement or an exemption under
the Securities Act and pursuant to the applicable terms of this Agreement. The
Holder is acquiring the New Notes to be issued to the Holder hereunder in the
ordinary course of its business. The Holder does not presently have any
understanding, directly or indirectly, with any person to distribute any of the
New Notes to be issued to the Holder hereunder.
Section 2.6 Restricted Securities. The Holder understands that neither
the New Notes nor the Underlying Common Stock have been registered under the
Securities Act, and are being issued hereunder by reason of a specific exemption
from the registration provisions of the Securities Act which depends upon, among
other things, the bona fide nature of the investment intent and the accuracy of
the Holder's representations as expressed herein. The Holder understands that
the New Notes (and the Underlying Common Stock) are "restricted securities"
under applicable U.S. federal and state securities laws and that, pursuant to
these laws, the Holder must hold the New Notes (and the Underlying Common Stock)
indefinitely unless they are registered with the SEC and qualified by state
authorities, or an exemption from such registration and qualification
requirements is available. The Holder further acknowledges that if an exemption
from registration or qualification is available, it may be conditioned on
various requirements including, but not limited to, the time and manner of sale,
the holding period for the New Notes (and the Underlying Common Stock), and on
requirements relating to the Company which may be outside the Holder's control,
and which, except as set forth in the Registration Rights Agreement, the Company
is under no obligation and may not be able to satisfy.
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Section 2.7 No Public Market. The Holder understands that no public
market now exists for the New Notes, and that the Company has made no assurance
that a public market will ever exist for the New Notes.
Section 2.8 Legends. The Holder understands that the New Notes and any
shares of Underlying Common Stock will bear one or more of the legends required
by the Indenture, and the removal of such legends shall be governed by the terms
of the Indenture.
Section 2.9 Affiliate Status. The Holder is not, and has not been
during the preceding three months, an "affiliate" of the Company as such term is
defined in Rule 144 under the Securities Act.
ARTICLE III
Representations, Warranties and Covenants of the Company
The Company hereby makes the following representations, warranties, and
covenants each of which is true and correct on the date hereof and shall survive
the date of the Closing and the transactions contemplated hereby to the extent
set forth herein.
Section 3.1 Existence and Power.
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has the power,
authority and capacity to execute and deliver this Agreement, to perform the
Company's obligations hereunder, and to consummate the transactions contemplated
hereby.
(b) The execution of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby (i) does not
require the consent, approval, authorization, order, registration or
qualification of, or filing with, any governmental authority or court, or body
or arbitrator having jurisdiction over the Company other than as contemplated in
the Registration Rights Agreement, state securities regulators, the New York
Stock Exchange, The Depository Trust Company and The PORTAL Market; and (ii)
does not and will not constitute or result in a breach, violation or default
under any note, bond, mortgage, deed, indenture, lien, instrument, contract,
agreement, lease or license, whether written or oral, express or implied, or
with the Company's Certificate of Incorporation or by-laws, or any statute, law,
ordinance, decree, order, injunction, rule, directive, judgment or regulation of
any court, administrative or regulatory body, governmental authority,
arbitrator, mediator or similar body on the part of the Company or on the part
of any other party thereto or cause the acceleration or termination of any
obligation or right of the Company or any other party thereto.
Section 3.2 Valid and Enforceable Agreement; Authorization. This
Agreement has been duly executed and delivered by the Company and constitutes a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except that such enforcement may be
subject to (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting or relating to enforcement of creditors' rights
generally, and (b) general principles of equity.
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Section 3.3 Capitalization. At the Closing, the authorized capital
stock of the Company will consist of 100,000,000 shares of Common Stock, par
value $0.001 per share, and 100,000,000 shares of Preferred Stock, par value
$0.001 per share. As of the close of business on March 19, 2007, there were
22,317,591 shares of Common Stock issued and outstanding. All such issued and
outstanding shares have been duly authorized and validly issued, and are fully
paid and non-assessable, and were issued in compliance with all applicable state
and federal laws concerning the issuance of securities and all applicable
pre-emptive, participation, rights of first refusal and other similar rights.
Section 3.4 Valid Issuance of the New Notes. The New Notes, when
issued, sold and delivered in accordance with the terms and for the
consideration set forth in this Agreement and the Indenture, will constitute
legal and binding obligations of the Company, be validly issued and free of
restrictions on transfer other than restrictions on transfer under this
Agreement, applicable state and federal securities laws and liens or
encumbrances created by or imposed by the Holder, and enforceable against the
Company in accordance with their terms, except that such enforcement may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting or relating to enforcement of creditors' rights
generally, and (b) general principles of equity. Assuming the accuracy of the
representations of the Holder in Section 2 of this Agreement and subject to the
filing of Form D pursuant to Regulation D under the Securities Act and state
securities laws, the New Notes will be issued in compliance in all material
respects with all applicable federal and state securities laws. The Underlying
Common Stock has been duly reserved for issuance, and upon issuance in
accordance with the terms of the Company's Certificate of Incorporation, as
amended, will be validly issued, fully paid and nonassessable and free of
restrictions on transfer other than restrictions on transfer under applicable
federal and state securities laws and liens or encumbrances created by or
imposed by the Holder. Based in part upon the representations of the Holder in
Section 2 of this Agreement, the New Notes and the Underlying Common Stock, when
issued and delivered in accordance with the terms of the New Notes and the
Indenture, will be issued in compliance in all material respects with all
applicable federal and state securities laws.
Section 3.5 SEC Documents; Financial Statements. As of their respective
dates, the SEC Documents complied in all material respects with the requirements
of the Securities Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as the case may be, and the rules and regulations of the SEC
thereunder applicable to such SEC Documents. As of their respective dates, the
SEC Documents did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The audited consolidated financial statements and unaudited
interim financial statements of the Company included in the SEC Documents comply
as to form in all material respects with applicable accounting requirements and
with the published rules and regulations of the SEC with respect thereto. The
financial statements and schedules included in the SEC Documents: have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis (except as may be indicated therein or in the notes thereto);
present fairly, in all material respects, the consolidated financial position of
the Company and its subsidiaries as at the dates thereof and the consolidated
results of their operations and cash flow for the periods then ended subject, in
the case of the unaudited interim financial statements, to normal year-end audit
adjustments and any other adjustments described therein and the fact that
certain information and notes have been condensed or omitted in accordance with
the Exchange Act and the rules promulgated thereunder; and are in all material
respects, in accordance with the books of account and records of the Company.
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Section 3.6 Legal Proceedings. No legal or governmental proceedings or
investigations are pending or, to the knowledge of the Company, threatened to
which the Company is a party or to which the property of the Company or any of
its subsidiaries is subject that are not described in the SEC Documents, except
for such proceedings or investigations which would not reasonably be expected
to, singly or in the aggregate, result in a Material Adverse Effect. As used in
this Agreement, the term "Material Adverse Effect" shall mean when used in
respect of any matter relating to the Company a material adverse effect on the
business, condition (financial or otherwise), properties or results of
operations of the Company and its subsidiaries, considered as one enterprise, or
would materially adversely affect the ability of the Company to perform its
obligations under this Agreement, the Indenture, the Registration Rights
Agreement and the New Notes.
Section 3.7 Compliance with Laws; Permits. The Company and its
subsidiaries possess all certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, except where the failure to have such
certificates, authorizations and permits would not reasonably be expected to
have a Material Adverse Effect, and none of the Company and its subsidiaries has
received any notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which would reasonably be expected
to, singly or in the aggregate, result in a Material Adverse Effect. The Company
and its subsidiaries are and have been in compliance with all applicable laws,
statutes, ordinances, rules, regulations, orders, judgments, decisions, decrees,
standards, and requirements relating to their respective businesses, except
where any such non-compliance would not reasonably be expected to have a
Material Adverse Effect.
Section 3.8 No Material Adverse Effect. Since the respective dates as
of which information is given in the SEC Documents, there has not been any event
or occurrence having a Material Adverse Effect on the Company or its
subsidiaries, except as reflected or disclosed in a subsequent SEC Document.
Section 3.9 Disclosure. On or before the first business day following
the date of this Agreement, the Company shall issue a press release and/or file
a Form 8-K with the SEC disclosing all material terms of the Transaction (to the
extent not previously disclosed) and any other material nonpublic information
delivered by the Company or its agents or counsel to the Holder or any agent
acting on its behalf. Upon the filing of such press release, no Holder shall be
in possession of any information that constitutes or could reasonably be
expected to constitute material, nonpublic information provided to Holder by the
Company or any agent acting on its behalf. The Company understands and confirms
that each of the Holders will rely on the foregoing representations in effecting
the Transaction
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Section 3.10 Existing Credit Agreement. As of the date hereof, and at
the Closing, no obligations are outstanding under the Second Amended and
Restated Credit Agreement, dated as of May 31, 2005 (as may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
by and among Greatbatch Ltd., the lenders party thereto and Manufacturers and
Traders Trust Company, as administrative agent. The Company hereby covenants and
agrees that neither the Company nor its subsidiaries shall borrow any amounts or
otherwise incur any obligations under the Credit Agreement until such time that
the Transaction contemplated hereby is expressly permitted by the terms of the
Credit Agreement and all documents related thereto.
ARTICLE IV
Miscellaneous Provisions
Section 4.1 Notice. Any notice provided for in this Agreement shall be
in writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) with return receipt requested or sent by reputable overnight
courier service (charges prepaid) to such address and to the attention of such
person as the recipient party has specified by prior written notice to the
sending party. Notices will be deemed to have been given hereunder when
delivered personally, three business days after deposit in the U.S. mail postage
prepaid with return receipt requested and two business days after deposit
postage prepaid with a reputable overnight courier service for delivery on the
next business day.
Section 4.2 Entire Agreement. This Agreement and the other documents
and agreements executed in connection with the Transaction embody the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersede all prior and contemporaneous oral or written
agreements, representations, warranties, contracts, correspondence,
conversations, memoranda and understandings between or among the parties or any
of their agents, representatives or affiliates relative to such subject matter,
including, without limitation, any term sheets, emails or draft documents.
Section 4.3 Assignment; Binding Agreement. This Agreement and the
various rights and obligations arising hereunder shall inure to the benefit of
and be binding upon the parties hereto and their successors and assigns.
Section 4.4 Counterparts. This Agreement may be executed in multiple
counterparts, and on separate counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument. Any counterpart or other signature hereupon delivered by facsimile
shall be deemed for all purposes as constituting good and valid execution and
delivery of this Agreement by such party.
Section 4.5 Remedies Cumulative. Except as otherwise provided herein,
all rights and remedies of the parties under this Agreement are cumulative and
without prejudice to any other rights or remedies available at law.
Section 4.6 Governing Law. This Agreement shall in all respects be
construed in accordance with and governed by the substantive laws of the State
of New York, without reference to its choice of law rules.
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Section 4.7 No Third Party Beneficiaries or Other Rights. Nothing
herein shall grant to or create in any person not a party hereto, or any such
person's dependents or heirs, any right to any benefits hereunder, and no such
party shall be entitled to sue any party to this Agreement with respect thereto.
Section 4.8 Waiver; Consent. This Agreement may not be changed,
amended, terminated, augmented, rescinded or discharged (other than in
accordance with its terms), in whole or in part, except by a writing executed by
the parties hereto. No waiver of any of the provisions or conditions of this
Agreement or any of the rights of a party hereto shall be effective or binding
unless such waiver shall be in writing and signed by the party claimed to have
given or consented thereto. Except to the extent otherwise agreed in writing, no
waiver of any term, condition or other provision of this Agreement, or any
breach thereof shall be deemed to be a waiver of any other term, condition or
provision or any breach thereof, or any subsequent breach of the same term,
condition or provision, nor shall any forbearance to seek a remedy for any
noncompliance or breach be deemed to be a waiver of a party's rights and
remedies with respect to such noncompliance or breach.
Section 4.9 Word Meanings. The words such as "herein", "hereinafter",
"hereof", and "hereunder" refer to this Agreement as a whole and not merely to a
subdivision in which such words appear unless the context otherwise requires.
The singular shall include the plural, and vice versa, unless the context
otherwise requires. The masculine shall include the feminine and neuter, and
vice versa, unless the context otherwise requires.
Section 4.10 No Broker. Neither party has engaged any third party as
broker or finder or incurred or become obligated to pay any broker's commission
or finder's fee in connection with the transactions contemplated by this
Agreement other than such fees and expenses for which it shall be solely
responsible.
Section 4.11 Further Assurances. The Holder and the Company each hereby
agree to execute and deliver, or cause to be executed and delivered, such other
documents, instruments and agreements, and take such other actions, as either
party may reasonably request in connection with the transactions contemplated by
this Agreement.
Section 4.12 Costs and Expenses. The Holder and the Company shall each
pay their own respective costs and expenses incurred in connection with the
negotiation, preparation, execution and performance of this Agreement,
including, but not limited to, attorneys' fees.
Section 4.13 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 4.14 Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
11
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the date first above written.
HOLDER:
----------------------------------------
By: ______________________________________
Name:
Title:
THE COMPANY:
GREATBATCH, INC.
By: ______________________________________
Name:
Title:
Signature Page to Exchange Agreement
Exhibit A
Form of Indenture
Exhibit B
Form of Registration Rights Agreement
Exhibit C
Form of Opinion of Hodgson Russ LLP
1. The Company has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Delaware with corporate
power and authority to own its properties and conduct its business as
described in the Company's most recent filing on Form 10-K with the
Securities and Exchange Commission (the "SEC").
2. The Company has an authorized equity capitalization as set forth in its
Amended and Restated Certificate of Incorporation, filed as Exhibit 3.1
to the Company's Registration Statement on Form S-1 (File No.
333-37554).
3. The shares of Common Stock initially issuable upon conversion of the
New Notes (the "Conversion Shares") have been duly authorized and
reserved for issuance upon such conversion and, when issued and
delivered in accordance with the provisions of the New Notes and the
Indenture, will be validly issued and fully paid and non-assessable.
The stockholders of the Company have no preemptive rights with respect
to the issuance of the Conversion Shares under the Certificate of
Incorporation, Bylaws or DGCL.
4. To our knowledge, except as disclosed in the SEC Documents, there are
no pending actions, suits or proceedings to which the Company is a
party nor are there any such actions, suits or proceedings overtly
threatened in writing against the Company that would have a material
adverse effect on the business, results of operations, or financial
condition of the Company and its subsidiaries, taken as a whole.
5. The Exchange and Purchase Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding
agreement of the Company.
6. The New Notes being issued on the date hereof have been duly authorized
by the Company and, when executed by the Company and authenticated by
the Trustee in the manner provided for in the Indenture and issued and
delivered to the Holder in accordance with the terms of the Exchange
and Purchase Agreement, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with
their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law, and will be
entitled to the benefits of the Indenture.
7. The Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding
in equity or at law.
8. The Registration Rights Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law, and except as
rights to indemnification and contribution under the Registration
Rights Agreement may be limited under applicable law.
9. The issuance and sale of the New Notes being delivered on the date
hereof, the issuance of the Conversion Shares, if any (assuming
conversion on the date hereof pursuant to the terms of the New Notes)
and the performance by the Company of its obligations under the
Indenture, the New Notes and the Exchange and Purchase Agreement and
the consummation of the transactions therein contemplated do not
conflict with and did not result in a breach or violation by the
Company of any of the terms or provisions of, or constitute a default
under any Reviewed Agreement listed on Exhibit A hereto, nor will such
actions result in any violation by the Company of (i) the Certificate
of Incorporation or the Bylaws, (ii) any U.S. federal or New York or
Delaware (under the DGCL) state statute applicable to the Company,
(iii) any rule or any regulation known to us of any U.S. federal or New
York or Delaware (under the DGCL) state court or governmental agency or
body having jurisdiction over the Company or any of its properties, or
(iv) any order, judgment or decree known to us to which the Company is
a party.
10. Assuming the filing of the Form D in accordance with Regulation D under
the Securities Act and any necessary filings in connection with state
securities laws, no consent, approval, authorization, order,
registration or qualification of or with any U.S. federal or Delaware
(under the DGCL) state court or governmental agency or body is required
for the issue and sale of the New Notes on the date hereof or the
consummation by the Company of the transactions contemplated by the
Exchange and Purchase Agreement or the Indenture, except as may be
expressly contemplated by the Exchange and Purchase Agreement, the
Indenture, New Notes and the Registration Rights Agreement or by U.S.
federal and state securities laws with respect to the Company's
obligations under the Registration Rights Agreement.
11. Assuming the filing of a Form D in accordance with Regulation D under
the Securities Act, no registration of the New Notes or the Conversion
Shares under the Securities Act is required for the offer, sale and
delivery of the New Notes by the Company to the Holder pursuant to the
Exchange and Purchase Agreement (it being understood that no opinion is
expressed as to any resale of the New Notes or the Conversion Shares).
12. The Company is not required to register as an "investment company," as
such term is defined in the Investment Company Act of 1940, as amended.